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1 
'1- 

1 

2 

3 

1 

2 

3 

« 

5 

6 

yj'7t) 


THE   LAW  OF  SALES. 


Volume  I. 


COMMENTARIES 


ON 


THE   LAW  OF  SALES 


AND 


COLLATERAL  SUBJECTS. 


BY 


JEREMIAH    TRAVIS,   LL.B.,  Harv.  .6 ; 

RECENTLY  Judge  or  the  High  Coukt  or  Justice 

OP  THE 

CANADIAN  Northwest  Teriutorifs- 
1-iKsi-   .„;,K  Law  KssAvisT  OK  Hakvahd  Univkhsitv  ,>r'i8«r.    .,., 


OP 


IN  TWO  VOLUMES. 

Vol.  1. 


BOSTON: 

LITTLE,  BROAVN,  AND  COMPANY. 

TORONTO: 

THK  CARSWEr.L  CO.,  (/..mitki.). 

1892. 


Copyrir/ht,  18'J2., 

Bv    JeUEMIAII    Ti!AVI3. 


V 


b'V 


Univkksity   Press: 
John   Wilson   ani»  Son,  Camiikiuok,  U.S.A. 


15393 


Y    ''HATKFUI,    RECOGNITION    O,.'    THK    MAXV    ACTS    Oi'    K.NONESS    AM,    fol  RTFsr 

HECKIVEl)  FROM   TUE-SK   UONOREr.  M  IN.   AN.,   IN   ACK.NOWLKDGMKNT  OF 

THE    DEBT    I    OWE   TO   THEM    FOR    THE    VALUABLE    IXsTUrC- 

TIOX   THEY   WERE  ALWAYS  SO   READY   TO   IMPART, 

/  beg  Respectfullj  ,„  Dedicate  ,/,:■.  Work  ,o  the  Memon,  of  ihe 

Hon.  jokl  parkf:r,  I.r.D., 

Hon.   THKOPHILUs   PAKSONS,    M..I).. 
Hon.  EMOKV   WASEIBIKN,    Li,.n.. 

So  long  the  Esteemed  and  EMimuUe  Profes,ors  of  //,.  f,,,,.  School. 
of  Harvard  Uniceraity. 


THE  AUTHOK. 


■1 


INTRODUCTION. 


In  writing  a  treatise  on  Canadian  Constitutional  Law  I  found 
two  cases,  Dobic  v.  The  Temporalities'  Board,'  and  Russell  v. 
The  Queen,^  decided  by  the  Judicial  Committee  of  tlie  Privy  Coun- 
cil of  England,  which,  on  a  fair  investigation  of  them,  seemed  to 
me  to  be  so  entirely  unsound  as  to  be  absolutely  indefensible.  As 
tho  points  involved  in  them  are  of  the  first  importance  in  the 
construction  of  the  Imperial  Acf*  which  forms  the  Constitution  of 
Canada,  therfi  was  no  other  course  fairly  open  to  mo  than  to  un- 
dertake to  show  that  these  cases  arc  not  law.  I  have  every  reason 
to  be  satis  led  mth  my  success  in  such  undertaking.  After  an 
exhaustive  analysis  of  them,  notwithstanding  the  high  authority 
of  the  court  by  which  they  had  been  decided,  and  that  they  had 
been  tamely  accepted  by  the  Provincial  and  Dominion  courts  as 
though  there  could  be  no  question  as  to  their  soundness,  I  was 
driven  to  the  conclusion,  which  I  frankly  expressed,*  that  the 
cases  were  badly  decided.  I  also  hazarded  the  opinion  that  as 
then,  for  the  first  time,  the  unsoundness  of  those  cases  had  been 
unanswerably  demonstrated,  the  Supreme  Court  of  Canada  could 
no  longer  follow  them,  and  the  doubt  was  expressed  whether  tjje 
Judicial  Committee  themselves  would  continue  to  follow  them. 
The  sequel  proved  the  correctness  of  the  opinion,  and  the  justifi- 
cation of  the  doubt.^ 


J  7  A  pp.  Cas.  136. 

''•  Ibid.,  829. 

'  British  North  American  Act,  1867, 
30  &  31  Vic.  c.  3. 

*  Sl'o  Travis  on  Can.  Const.  Law, 
Part  2,  pp.  133-178. 

^  The  (puistion  involved  in  those  cases 
subsequently  came  before  the  Supreme 
Court  of  Canada  in  a  case  known  as  the 

(rt)  See,  on  file  in  the  office  of  the  De- 
partment of  Justice,  at  Ottawa,  Canada,  the 
stenographer's  report  of  the  argument  and 
proceedings  in    the    Supreme    Court    of 


Dominion  License  Act  Case,  when,  aa  was 
prcilicted,  that  court  expressly  re]mdiated 
l)()bie  V.  The  Tcniporulities'  Board  and 
liussell  V.  The  Queen  ;  Sir  Wni.  Ritchie, 
C.  J.,  voicing  the  oiiiniou  of  the  whole 
court,  .saying  of  them  :  "  We  i)re.sume  it 
will  scarcely  be  considered  liigh  treason 
in  us  if  we  say  those  cases  are  not  law  ;" 
and  the  court  refused  to  follow  them,  (a) 

Canada,  on  questions  submitted  to  the 
court  by  the  government,  as  to  the  con- 
stitutionality of  the  Dominion  License  Act, 
where  the  above  facts  were  ascertained. 


Il 


I 


X  INTRODUCTION. 

In  precisely  the  same  way,  throughout  the  whole  of  this  treat- 
ise, I  have  endeavored  to  point  out  the  law  on  the  numerous  impor- 
tant questions  I  have  discussed  ;  and,  notwithstanding  the  great 
amount  of  bad  law  1  have  found  in  cases  decided  in  the  courts  in 
England  and  in  this  country,  and  which  is  repeated  and  perpet- 
uated by  text-writers,  without  the  slightest  attempt  at  exposing 
the  most  transparent  fallacies  which  have  stared  them  in  the  face, 
I  feel  quite  satisfied  that,  from  the  commencement  to  the  close  of 
this  work,  there  is  not  one  of  the  many  (juestions  in  connection 
with  which  I  have  pointed  out  much  of  such  bad  law,  in  which 
I  have  failed  to  show  what  the  law  on  the   particular  subject 

really  is. 

On  several  of  these  questions  I  have  had  opportunities  of 
eliciting  the  views  of  some  of  the  ablest  lawyers  in  the  United 
States;  some  of  them  members  cf  the  Bench;  some  of  them 
occupying  the  highest  positions  in  connection  with  leading  Law 
Schools ;  and  others,  leading  practising  lawyers,  text-writers, 
and  law-reviewers.  Among  a"l  cbeso  I  have  failed  to  find  one 
who  has  not  assented  to  the  soundness  of  the  principles  of  law 
to  which  I  directed  their  attention  ;  while,  on  many  of  these 
most  important  subjects,  I  found  a  genera'  expression  of  sur- 
prise, by  those  gentlemen,  that  they  had  not  themselves  previ- 
ously noticed  the  transparent  fallacies,  the  greater  part  of  which 
are,  for  the  first  time,  exposed  in  this  work.  Merely  to  recapitu- 
late them  would  be  to   make  an   analysis  of  this  entire  work  ; 


A  copy  of  Travis  on  Can.  Const.  Law  was 
sent  to  cacli  nioinber  of  the  Judi<;iiil  Com- 
mittee of  the  Privy  Council,  and,  on  tlie 
question  disnussoj  in  it,  as  to  the  unsound- 
ness of  their  decisions  in  Dobie  v.  The 
Temporalities'  Roard  and  Russell  v.  The 
Queen  —  the  question  coming  directly  be- 
fore them  in  the  Dominion  License  Act 
Case  —  they  held  this  act  ultra  vires  the 
Parliament  of  the  Dominion,  and,  in  doing 
so,  directly  reversed  their  decisions  in  the 
previous  cases  referred  to  above.  In  com- 
ing from  San  Francisco,  where  this  work 
was  mainly  written,  to  Hoston,  I  met,  on 
my  way,  Mr.  Edward  Blake,  one  of  the 
ablest  lawyers  and  statesmen  in  Canaila, 
when,  in  a  conversation  between  us,  the 
following  took  place  :  — 

"You  observe,  Mr.   Blake,    that  the 


Privy  Council  have  sustained  my  criti- 
cism of  their  judgments." 

"  Yes,  tliey  did  so,  but  they  claimed 
not  to  do  so." 

"  Yfs,  they  claimed  not  to  do  so,  but 
they  did  so  notwithstanding." 

Mr.  Blake,  very  pm]ihatically  "Yes  !" 

As  a  clear  matter  of  fact,  on  the  ground 
on  which  the  Privy  Council  decided,  in 
Hussell  V.  The  Queen,  that  the  Canada 
Temjierance  Act  was  intra  vires  the  Par- 
liament of  Canada,  they  .should  have 
held,  had  their  holding  in  that  case  been 
sound,  that  the  Dominion  License  Act 
was  also  infra  vires  Parliament.  But,  in 
holding  as  they  did  that  this  latter  act 
was  u//ra  vires,  they  directly  reversed  their 
previous  holding  in  Dobie  v.  TheTemporal- 
ities'  Board,  and  in  Russell  v.  The  Que^n. 


H 


INTRODUCTION. 


xi 


lis  trcat- 
s  impor- 
ho  great 
courts  in 
1  perpct- 
cxposing 
the  face, 
0  close  of 
mncctiou 
,  in  which 
,r   subject 

unities  of 
he  United 
J  of  them 
iding  Law 
xt-writers, 
)  find  one 
)lc8  of  law 
y  of  these 
on  of  sur- 
slves  previ- 
•t  of  which 
;o  recapitu- 
Itirc  work  ; 

[lied  my  criti- 

they  claimpii 

to  Ao  so,  but 

Teally  "  Yes  !" 
I  on  the  ground 
kl  decided,  in 
[it  the  Canada 
vires  the  Tar- 
should    have 
Ithat  case  been 
License  Act 
fient.     But,  in 
I  this  latter  act 
f  reversed  their 
,  TheTeinporal- 
I  V.  The  Que^n. 


but,  among  the  many  gross  legal  fallacies  I  have  undertaken,  and 
I  think  with  success,  to  clearly  expose,  1  may  hero  direct  special 
attention  to  Book  111.  of  this  work,  Part  I.,  where  the  unsound  doc- 
trine is  exposed,  attempted  to  be  established  by  the  courts  of  New 
York  (followed  in  Kansas  and  Nebraska,  and,  more  remarkably, 
from  the  general  trend  of  their  own  decisions  there,  by  Pennsyl- 
vania), that  railway  companies  are  liable,  on  the  fraudulent  traf- 
fic receipts  of  station  agents,  for  goods  which  have  not  been 
received  by  the  railway,  where  bills  of  exchange  based  on  such 
fraudulent  receipts  have  been  sold  by  a  party  to  the  fraud.  This 
utterly  unsound  doctrine  is  based  on  the  perversion  of  a  principle 
of  agency,  which,  if  generally  ajjplied,  would  involve  the  destruc- 
tion of  very  much  of  the  most  unquestionable  law  of  principal  nni 
agent.  As  I  have  shown  in  that  Part,  not  only  arc  the  recent 
New  York  decisious  on  l';'  main  subject  unsound;  not  only  in 
reaching  such  dcci'^ions  do  they  pervert  and  destroy  a  sound  prin- 
ciple of  the  law  of  agency  ;  but,  in  principle,  those  cases  are 
opposed  to  the  decisions  of  the  well-decided  cases  in  New  York 
running  over  a  period  of  three  quarters  of  a  century.  To  all  in- 
terested in  the  liabilities  of  carriers,  directly  or  indirectly,  I  par- 
ticularly direct  attention  to  Book  TIL,  Parts  I.  and  II., of  this  work. 
In  Book  IV.,  Parts  VI.  and  VII.,  I  have  most  elaborately  dis- 
cussed that  branch  of  the  seventeenth  section  of  the  Statute  of 
Frauds  relating  to  the  acceptance  and  actual  receipt  of  a  part  of 
the  goods  purchased,  to  take  the  case  out  of  the  statute ;  and  the 
reader,  on  studying  those  Parts,  can  scarcely  fail,  I  think,  to  be 
astounded  at  the  fact,  and  its  effect,  of  the  "  acceptance  "  of  the 
statute  as  an  entity,  apart  from  and  independent  of  the ''  actual  re- 
ceipt "  of  the  statute,  being  so  long  and  so  generally  ignored,  as  it 
has  been,  by  courts  and  text-writers  both  in  England,  and  in  this 
country.  But,  even  beyond  these,  I  would  particularly  direct  at- 
tention to  the  subject,  thoroughly  investigated  in  Book  IV.,  Part 
VIII.,  where  the  fallacy  of  the  courts  in  Massachuse  "^s,  Maine, 
Vermont,  Michigan,  and  some  half-dozen  other  of  the  States  oi; 
the  Union,  which  affect  to  hold  that  in  the  note  or  memorandum 
in  writing  of  a  contract,  such  as  is  required  in  the  fourth  and 
seventeenth  sections  of  the  English  Statute  of  Frauds,  the  consid- 


If 


Mi 


I 


Xll 


INTRODUCTION. 


eration  need  not  appear,  is,  I  think,  conclusively  and  unanswer- 
ably established.  Not  only  so,  but,  by  a  very  full  and  accurate 
analysis  of  the  cases  in  those  States,  I  have  shown  that  while  such 
courts  affect  to  hold  this  doctrine,  and  although,  in  several  of 
those  States  they  have  actually  enacted  statutes  expressly  provid- 
ing that  in  such  notes  or  memoranda  the  consideration  need  not 
appear,  yet,  in  the  very  face  of  the  cases  affecting  to  hold  the  doc- 
trine that  the  consideration  need  not  be  so  stated,  and  in  the  very 
teeth  of  those  statutes,  they  still  hold,  in  fact,  that  the  considera- 
tion must  80  appear,  or  that  the  Statute  of  Frauds  is  not  satisfied. 
They  involve  themselves  in  this  state  of  confusion  by  confounding 
the  consideration,  the  quid  pro  quo  of  Noy's  Maxims  —  the  "  this 
for  that,"  the  "  this"  which  one  gets  or  is  to  get  for  the  "that" 
which  he  gives  or  is  to  give  —  with  the  mutuality,  the  agyregatio 
mentium,i\\Q  meeting  of  minds  of  the  parties  to  the  contrac: ;  which 
latter  the  statute  does  not  require  to  be  evidenced  by  the  writing.^ 
Throughout  the  whole  work  questions  connected  with  the  Law  of 
Sales,  and  subjects  collateral  thereto,  are  examined  with  absolute 
candor  and  perfect  fearlessness.  The  one  object  I  have  had  in  view 
in  my  work  is  to  state  the  law  as  it  actually  is  ;  and  where  I  have 


^  The  confusion  which  exists  on  this 
subject  is  made  apparent  by  its  discussion 
in  Hook  IV.,  Part  VIII,  This  is  one  of 
the  subjects  which  I  have  considered  in 
Massaclmsetts  and  elsewhere  witli  mem- 
bers of  the  Bench,  law-reviewers,  leading 
law-school  professors,  law-book  writers, 
and  prominent  lawyers  ;  not  one  of  whom 
have  I  found  to  dissent  from  the  views 
I  have  expressed  on  the  sul)ject.  I  had 
the  opportunity  for  a  very  full  considera- 
tion of  the  question  with  the  senior  pro- 
fessor of  one  of  the  law  schools  of  this 
country,  and  who  has  since  taken  a  seat 
on  the  Supremo  Court  Bench  of  his  State, 
who  entirely  assented  to  my  views,  and 
who,  I  subsequently  ascertained,  gave 
expression  to  them  in  his  lectures  to  his 
law-students.  In  a  conversation  with  one 
of  the  Supreme  Court  judges  of  Massachn- 
seta,  a  fellow  law-student  with  me  at 
Harvard,  on  my  stating  the  law  in  the 
matter  to  him,  he  replied  :  "  Oh,  that  is 
settled  in  this  State  by  statute  ; "  to 
which  I  answered  :  "  I  am  (luite  aware  of 
that,  and  yet,  right  in  the  teetli  of  your  stat- 
ute, you  hold  that  the  consideration  niu.st 
appetir  by  the  writing."    He  was  silenced. 


The  remarkable  feature  about  the  matter 
is,  that  the  absurdity  lias  never  been  ex- 
posed until  now.  Browne,  in  his  gener- 
ally very  excellent  work  on  the  Statute  of 
Frauds,  was,  as  we  show,  post,  vol.  ii. 
pp.  521-523,  52.1,  541,  568,  fairly  puzzled 
in  the  matter,  and  very  naturally  so,  by 
th"  glaringly  contradictory  decisions  in 
the  courts  of  his  own  State,  and  hence 
inferred  that  the  price  paid  for  goods  is 
not  tiK  consideratimi  for  the  goods.  The 
ordinary  form  -^f  a  deed  of  land  shows  the 
contrary  :  "  For  and  in  consideration  of 
$1,000,  I  grant,  etc.,  that  certain  lot,  piece, 
etc.,  of  land."  The  consideration  for  the 
land  is  the  price  ;  the  consideration  for 
the  money  paid  is  the  land.  The  con- 
sideration is  the  quid  pro  quo.  And  yet, 
as  we  point  out  in  Part  VIII.  of  Book 
IV.,  the  very  conrts  which  hold  that  the 
consideration  neid  not  appear  by  the  writ- 
ing, hold,  that  all  the  essentials  of  the 
contract,  including  the  price,  must  appear 
by  the  writing.  Erqo,  they  hold,  and 
their  statutes  enact,  that  the  consideration 
need  not  appear  by  the  writing,  and  yet 
they  hold  that  it  must  appear  by  the 
wri!,ing. 


-I 
I 


INTRODUCTION. 


XIll 


lanswer- 
accurate 
lile  such 
evcral  of 
J  provid- 
necd  not 
t  the  doc- 
.  the  very 
)onsidera- 
satislied. 
ifounding 
the  "  this 
le'Hhat" 
agf/regatio 
ic: ;  which 
c  writing.^ 
the  Law  of 
h  absolute 
lad  in  view 
ere  I  have 

ut  the  matter 
ever  been  ex- 
in  his  gener- 
the  Statute  of 
post,  vol.  ii. 
fairly  puzzled 
,tii  rally  so,  by 
decisions  in 
te,  and  hence 
for  goods  is 
goods.     The 
.nd  shows  the 
)nsiderntion  of 
•tain  lot,  piece, 
■ration  for  the 
isideration  for 
The  con- 
■i/o.     And  yet, 
III.  of  Book 
hold  that  the 
— ar  by  the  writ- 
fentinlK  of  the 
!,  must  appear 
ley  hold,  and 
e  consideration 
iting,  and  yet 
ippear  by  the 


I 


\ 


\d. 


found  unsound  decisions,  as  I  have  done  in  every  branch  of  the 
law,  I  have  not  hesitated  to  point  them  out,  and  to  show,  with 
all  the  distinctness  and  conclusiveness  in  my  power,  that  they  are 
not  well-decided,  and  are  not  law.  In  a  thorough  review  of  the 
work  I  know  of  no  instance  where  I  have  failed  to  make  the  law 
of  the  subject  perfectly  clear  to  any  reader  of  fair  intelligence. 
The  work  is  an  absolutely  new  one  on  the  subject ;  not  a  rehash 
of  Blackburn,  Benjamin,  or  any  other  writer  ;  and  I  trust  it  will 
prove  to  be  of  no  little  value  to  courts,  lawyers,  and  law  students. 
Within  its  limits  it  is  complete  and  thoroughly  exhaustive  ;  but  1 
hope  hereafter  to  issue  two  additional  volumes,  covering  a  variety 
of  other  questions  connected  with  the  Law  of  Sales  which  I  have 
left  over  for  later  consideration  and  discussion.  If  the  work  shall 
prove  of  value  it  will  be  owing  in  no  slight  degree  to  the  instruc- 
tion I  received  from  the  able  lawyers  to  whose  memory  the  work 
is  dedicated,  and  from  v>hom  I  learned  to  judge  cases  by  prin- 
ciple, and  like  them  to  act  on  the  principle  that  "  law  is  the 
very  reason  of  the  thing,"  and  that  "  that  which  is  not  reason  is 
not  law" 


J.  T. 


Boston,  Mass., 

January,   1892. 


•i 


r  ar-' 


;:££ 


CONTENTS. 


[See  end  of  Vol.  II.  for  a  full  Analytical  Index.] 

VOLUME  I. 
Table  of  Cases  Cited  .     .  ^*"'' 

XIX 

BOOK  I. 

SALES. 

Pabt     I.    What  is  a  Sale? i_oo 

*'       II.     Gifts  Distinguished ,     '  33-91 

III.    Bailments  Distinguished  . 9'>-l08 

BOOK  n. 

SPECIAL  SALES. 

Preliminary.    Enumeration  of  Sales .  .^ 

Part      I.     Sales  with  Infants 109-1 S*! 

"       II.    Mental  Disabilities     ...  i.,c  ,.o 

n         li       a        %  X  .  100-148 

Sec.  1.  Insanity 

«        u         ..    9  T,.  136-144 

2.  Idiocy j^. 

"         "     ^'     I>runkenues3  .     ...  '  ila  iaq 

*'      in.    Maruied  Women ::;'•■  149I47 

"     Sec.  1.     General  Principles '         j^^ 

"    2.    Living  with  Husbands *  lio  iro 

'i-     As  Agents  of  Necessity 159-195 

"4.    Binding  their  Separate  Estate     .     .     .  lofj  on« 

5.    Property  Acts 2 

'    Sub-secl.     Their  status 0,7  ;,4 

^.    Keduction  into  Possession  of  their 

Property 2'>4-oob 

A  heir  Separate  Property  ....  229-235 

"       *•    Their  Contracts  .     .     .  9<?'^on 

0.    Liabilities  independent  of  Contract  241-247 


^" 


•■! 


iP^' 


Xvi  CONTENTS. 

PAon 

Part  IV.    Purchases  and  Sales  by  Shipmasters  as  Agents 

OF  Necessity 248-293 

"       V.    Corporation  Sales  and  Purchases 294-443 

"        "     Sec.  1.    Directors  of  Companies'  Sales,  etc 294-317 

"        "       '*    2.    Incorporated  Companies  and  Municipal  Corpo- 
rations, Preliminary 317-319 

"        "        «'     3.     English  Companies'  Acts 320-373 

"        "        "    4.    Sales  of  Stock  in  Incorporated  Companies  in  the 

United  States 373-408 

«'        '•       ••    5.    Mmiicipal  Corporation  Transactions,   Sale  of 

Bonds,  etc 407-443 

••      VI.    Sales  whkre  Fiduciary  Relations  exist      .    .    .  444-466 

•'    VII.    Partners'  Sales 467-506 

'«        "     Sec.  1.    What  Constitutes  a  Partnership 467-482 

•«        ♦»       "    2.    The  English  Partnership  Amendment  Act   .     .  482-485 
«♦        '•       "    3.    Application  of  Agency  Rules  to  Partnerships    .  485-487 

♦«        «'        "4.    Partnershin  Purchases  and  Sales 488-500 

"        "       "    5.    Partners'  Fiduciary  Relations 501-506 

'•  VIII.    Agency 507-658 

••        "     Sec.  1.    An  Agent's  Contracts  for  a  Foreign  Principal  •  507-515 
••        ♦'       "    2.    Effect  of  Agents  signing  Contracts  in  their  own 

Names 516-544 

•♦        •'        •'    3.    Rights,   Powers,   and  Liabilities,  as  between 

Principals  and  Agents 544-598 

♦»        •'        "    4.     Officers  of  Companies  as  Agents 598-605 

♦«        •'       •'    5.     Fraud  and  Concealment  by  Agent 605-622 

••        •'        "6.     Ratification  of  Acts  of  Agents 622-630 

"        "       "7.    Consignees,  Factors'  Acts,  etc 630-658 


1 


if 


VOLUME  II. 

BOOK  m. 

RAILROADS. 


Part  I. 


n. 


Station-Aoents  fraudulently  signing  Freight  Re- 
ceipts FOR  Goods  not  received,  —  as  to  Liability 
of  Railway  therefor  to  innocent  Third  Party        1-74 

Railway  Contracts  for  through  Carriage  of 
Goods 75-220 


ii 


rs 


le 


Paou 

.  248-293 

.  294-443 

294-317 

317-319 
320-373 

.  373-406 
.f 

.  407-443 
.  444-466 
.  467-506 
.  467-482 
.  482-485 
•  485-487 
.  488-500 
.  501-506 
.  507-658 
.  507-515 


CONTENTS. 


xvii 


M 


P.ART 


I. 
II. 
III. 

IV. 

V. 

VI. 

vir. 

VIII. 
IX. 


Index 


BQOK  IV. 

STATUTE  OF  FRAUDS. 

What  are  within  the  Statute    .     .    .  "'>1-24T 

f;"^"«^«- .'     ."     .'212-252 

WoKK  AND  Labor ^^^_^^^ 

Exchange  or  Barter 265-274 

Earnest  or  Part-payment 275-316 

The  Acceptance "     '     "  q^^_^^^ 

The  Actual  Receipt 436-504 

The  Note  or  Memorandum  in  Writing     ....  505-583 
The  Essential  Requisites  of  the  Memorandum   .  584-674 


675 


516-544 


544-598 
598-605 
605-622 
622-630 
630-658 


VOL.  I. 


1-74 
75-220 


ill 


illiil 


Hi 


11 


TABLE    OF    CASES    CITED. 


THE  REFERENCES  ARE  TO  THE  PAORS. 


A. 


Page 


Abbey  V.  Deyo  i.  227 

Abbot  V.  Gilchrist  i.  10 

V.  Massie  ii.  593 

Abbott  V.  American  Hard  Rubber  Co. 

i.  200 

I'.  Bayley  i.  193 

V.  B.  &  K.  Steam  Packet  Co.       i.  209 

V.  Pfirfitt  i.  401 

V.  Swordcr  ii.  598 

V.  Wincliester  i.  231) 

Abby  V.  Bilhips  i.  320 

Al)eel  r.  Kiulcliffe  ii.  573,  028 

Aboll  V.  Mutison  ii.  50(1 

r.  Warren  i.  Ill,  132 

Aberaman  Ironworks  v.  Wickens     i.  320 
Aberoorn's  Case,  Marquis  of  i.  350 

Aberdeen  Hy.  Co.  v.  Blakie      i.  299,  308, 

342 
Acatos  V.  Burns  i.  269,  271 ,  272,  274, 277 
Accidental  «&  Mar.  Ins.  Corporation  i.  337 
Acebal  v.  Levy   ii.  320,  324,  U\,  447,  477, 

571 
Ackerman  v.  Runyon 
Ackley  v.  Dygert 

V.  Kellogg 
Ackley  School  District  r.  Hall  i 
Acrainan  i'.  Morriee 
Acton  V.  Acton 
Adams,  In  the  Goods  of 

V.  Adams 

V.  Ilaimibal  &  St.  Joseiih  R. 

V.  Hayes 

r.  Hermess 

I'.  Kehlor  Milling  Co. 

I.'.  Jones 

1'.  Lindsell 

I'.  Roberts 

V.  Wiscasset  Bank 
Adams,  The 
Adams  Kxpress  Co.  v.  Ha 

r.  Schlessinger 

;•.  Trego 

'■.  Wilson 
Adamson's   case,  /n   r 
Steam  Tramway  Co 
Addcrly  r.  Stornn 


Addie  v.  The  Western  Bank 


i.  130 
i.  12:5 

ii.  no 

413.  419 

ii.  320 

ii.  044 

ii.  692 

i  200 

R.  i.  587 

i.  33 

i.  194 

i.  297 

ii.  017 

i.  353,  ii.  598 

i.  595 

i.  409 

i.  033 

ii.  181 

ii.  30 

ii.  42 

ii.  185,  186 

Paraguassa 

i.  32 
i,  370,  300,  403 


vnes 


1.  338,  340, 
341 


Paos 

Addison  v.  Bowie 

i 

117 

V.  Gandassequi 

i 

.509 

648 

Addy  1".  Grix 

ii 

590 

Adce  V.  Cornell 

501 

Adkins  v.  Thornton 

394 

Agar  r.  Athenajum  Life  Assurance 

Society 

i. 

60.3 

Agawani  r.  Hampden 

i. 

417 

Agawam  Bank  r.  South 

Iladley 

i 

410 

Agricultural  Branch  R. 

R.  Co.  r 

Win 

- 

Chester 

i. 

404 

Aguilar  c.  Aguilar 

i. 

202 

Aigen  r.  Boston  &  Maine 

R.R.  ii 

.114, 

115 

Alabama  r.  Burr 

i. 

415 

Albany  &  Rensselaer  Co 

V.  Lun( 

berg 
i. 

623 

Albert  v.  Savings  Bank 

i 

405. 

4(>0 

Alcorn  r.  Westbrook 

1.  13 

Alden  r.  Blague 

.  :J0 

Alder  v.  Bank 

i 

402 

Aldrich  v.  Abrahams 

i. 

123 

Aldridge  v.  Johnson 

ii 

420, 

401 

V.  Muirhead 

i. 

227 

1'.  The  Great  Western  Rv. 

Co.  i 

.02 

Alexander  v.  Bryan 

f.  (Jaiiber 

r.  Oittenden 

(•   (jiartlner    ii.  25G. 

V.  Hutcheson 

r.  Mackenzie 

r.  Miller 

V.  Southey 
.Me.xander,  Die  i. 


254, 
Co., 


i.  461 

ii.  313, 484 

i.  150 

.320,  420,  491,  504 

i.  130 

i.  570,  ii.  10 

i.  143,  1,52 

i.  652 

2.35.  201,  2n2,2«;i. 

205,  284 

Hart's 

i.  S.W 


/,/ 


.Moxnmlra  Park 

Case 

Allan  r.  Bower  i.  594 

Allard  v.  (ireasert  ii.  436,  502 

Alldis  u.  Chapman  i.  173 

Allegheny  City  >\  McClurkin  i.  4.35 

Allen  r.  Agnirre  ii.  270,  279,  280 

V.  Aldrich  i.  162,  105,  183,  188 

r.  Allen  i.  194 

r.  Bennet  i.  575,  ii.  611,  513,  526,  5.30, 

563,  570,  572,  589,  594,  605,  002. 

600,613,647,049,051,000 

I'.  Berryhill  i.  145 

r.  Cameron  i  4.32 

V.  Cc  .ter  Valley  Co.  i  500 

I'.  City  of  Janesville  i.  4'15 


1 


I 


Ml 


XX 


TABLE  OP  CASES  CITED. 


Paoi 

Allen  V.  Curtis  i.  297 

V.  Edgorton  i.  HM 

V.  Garbutt  i.  285 

V.  Gibson  '        i.  4Ui) 

t'.  Graves  i,  182,  323 

V.  Gripper  ii,  454 

V.  Hawks  i.  301 

V.  Jauubi  i.  113 

t'.  J-Kiuish  ii.  573,  028 

V.  Jay  i.  416 

t'.  Louisiana  i.  429 

I'.  Maddock  ii.  053 

V.  Miissey  ii.  49(5 

V.  Merchant  Bank  i.  595 

V.  Ogdun  i.  480,  ii.  40 

V.  Papworth  i.  203 

V.  Polcrecky  i.  33 

V.  Tt-rry  i.  246 

Allcndtr  v.  Kiston  i.  400 

Allin's  Cnso  i.  841 

Allis  V.  Billings  i.  142 

V.  Heed  ii.  296 

Allison's  Case  i.  125 

Allison  I'.  Davidson  i.  503 

Almond  t'.  Almond  i.  201 

Almy  V.  Wilcox  i.  163 

Alston  r.  Herring  ii.  89 

Alty  V.  Fernie  ii.  27 

Ambrose  Lake  Tin  &  Copper  Manuf. 

Co.,  In  re  i.  312 

Ambs  I'.  Honore  ii.  181 

Amelio,  The         i.  249,  261,  278,  281,  290 
American  Express  Co.  f.  Second  Na- 
tional Bank  ii.  158 
American  File  Co.  r.  Garrett  i.  380 
American  Fur  Co.  r.  United  States  i.  587 
American  Ins.  Co.  v.  Cluter       i.  259,  266 
I'.  Coster  i.  268 
American  Tube  Works  v.  Boston  Ma- 
chine Co.                                        i  410 
Ames  V.  Ashley  i.  24 
Amis  V.  Witt  i  86 
A.  Mitchell  v.  City  of  Glasgow  Bank  i.  341 
Amory  v.  Lawrence                            i.  386 
Amos  V.  Amos                                     i.  186 
V.  Smith                                     ii.  274 
Amy  V.  Dubuque                                 i.  395 
Ancona  o.  Marks                                  i.  624 
Andansonia  Fibre  Co.,  In  re               i.  674 
Anderson's  Case                                   i.  337 
Anderson  v.  Fox                                  i.  406 
V.  Hodgson                                   ii.  449 
r.  Lemon                                i.  503,  505 
V.  Philadelphia  Warehouse  Co.  i.  379 
V.  Pitcher                                      1.  600 
V.  Santa  Anna                             i.  414 
V.  Scot        ii.  219,  323,  324,  347,  438, 
441,449,478 
V.  The  Owners  of  the  San  lloman 

i.  270 
V.  Tompkins  i.  600 

Anderson     County    Commissioners 

V.  Beal  i.  421 

Andover  v.  Grafton  i.  377 

Andover,  &c.  Corporation  v.  Gould  i.  320 


Andrews,  In  re 

V.  Allen 

V.  Durant 

t'.  Garrett 

V.  Kneeland 

V.  Pond 
Androscoggin  Bank  v.  Kimball 
Aneroid,  Tlie 


Paqi 
i.  205 
i.  536 
ii.  504 
i.  112 
i.  486,  584.  ii.  40,  70 
i.  397,  400,  616 
i.  616 
i.  289 


Angel  V.  MoLellnn  i.  113,  114 

Angler  v.  Angier  i.  199 

Angle  V.  Mississippi  Railroad  ii.  196,  197, 

198 
V.  N.  W.  Life  Ins.  Co.         i.  897,  400 
Anglesea  Colliery  Co.,  I»  re  i.  337 

Anglo-California  Bank  i-.  Ames        i.  139 
r.  iMahoney  Mining  Co.  i.  600 

Anglo-Egyptian  Nav.  Co.  v.  Rennie     i.  4 
Anglo-French  Co-operative  Soc.,  In  re 

i.  812 
Anglo-Moravian  Junction  Ry.  Co.,  In 

re ;  Dent's  Case  i.  847 

Annn  The  i.  2S9 

Anonymous  (1  Ld.  Ray.  182)   ii.  223,  228 
(12  Mod.  415)  i.  608 

(12  Mod.  514)  i.  29 

(Free,  in  Cli.  502)  i.  196 

(2  Salk.  522)  i.  106, 

(3  Salk.  157)   i.  3,  4, 12,  21,  22,  23,  92. 

ii.  267 

(1  Str.  527)  i.  154 

(1  Vern.  318)  i.  382 

Anonymous  Case  (eited  8  Ve?.  67)    i.  147 

Anonymous  Case  (2  Shower,  290)     i.  200 

Ansoiiia  Brass  &  Copper  Co.  v.  The 

New  Lamp  Chimney  Co.  i.  374 

Anstrie  v.  Seligman  i.  95 

Anttionv  V.  Jasper  County  i.  417, 420,  430 


i.  51 

i.  87 

i.  87 

i.  532,  601,  629 

i.  270 

ii.  320,  412, 530,  646 

i.  226 

i.  128 

i.  435 

i.  255 

i.  410 

il30 


Antrobi  i  i-.  Smith 

Appeal ,  f  Kline 

Appeal  of  Walsh 

Appleton  V.  Binks 

Arayo  v.  Currell 

Archer  r.  Baynes 

V.  Gerill 

V.  Pope 

Argenti  r.  City  of  San  Francisco 

Ariadne,  The 

Arlington  v.  Pierce 

Arnifiold  r.  Tate 

Armory  v.  Delamirie  i.  446,  450 

Armour  i-.  Michigan  Central  R.  R.  Co. 

i.  644, 045,  ii.  8,  15, 18, 20,  21,  22,  23,  25, 

28,  31,  32,  33,  34,  35,  36,  37,  39,  42,  43, 

44,  45,  46,  47,  60,  51,  54,  56,  00,  63,  04, 

05,09,70,71,72,73,112 

Armstrong  v.  Cooloy  ii.  40 

1-.  Stokes  i.  402,  514,  616,  560,  602. 

663,  564,  565,  567,  568,  672,  579, 

680,  681 

Armytage,  In  re ;  Ex  parte  Moore  & 

Robinson's  Banking  Co.  ij.  246 

Arnold  v.  Brown  i.  465 

y.  Engleman  i.  234,  237 

V.  Hickman  i.  147 

V.  Lyman  ii.  304 


■I 


■-■(3: 


TABLE  OP  CASES  CITED. 


XXI 


i.  4 
312 


Paoi 

i.20& 

i.  536 

ii.  504 

i.  112 

I.  ii.  40,  70 

7,  400,  616 

i.  616 

i.  28a 

i.  113,  114 

i.  109 

i.  196,  197, 

108 

i.  897,  400 

i.  337 

s   i.  139 

i.  600 

nnie 

.,lnre 

i. 

[^0.,  In 

i.  847 
i.  289 
ii.  223,  228 
i.  608 
i.  29 
i.  196 
i.  105, 
,  22,  23,  92, 
ii.  267 
i.  164 
i.  382 
.67)  i.  147 
>90)  i.  200 
V.   Tlie 
i.  374 
i.  95 
7, 420,  430 
i.  51 
i.  87 
i.  87 
2.  601,  629 
i.  270 
1, 630,  646 
i.  226 
i.  128 
i,  435 
i.  255 
i.  410 
il30 
446,  450 
U.  Co. 
22,  23,  26, 
39,  42,  43, 
60,  63,  64, 
72, 73, 112 
ii.  40 
660,  562, 
672.  579, 
580,  681 
[oore  & 
ii.  246 
i.  465 
234,  237 
i.  147 
u.  304 


Paok 

Arnold  v.  Mayor  of  Poole  i.  318 

,!.  Kichinond  Iron  Works  i.  142 

Artclicr  r.  Zcli  ii.  S04,  805,  502 

Artliur  V.  Barton  i-  265,  267 

V.  Sthr.  Casino  i.  291 

V.  Clarkson  i.  69 

Ash  V.  Piitniim  i.  ^07 

Ashbiiry  Hallway  Carriage  and  Iron 

Co.  V.  Hiuhe  i.  321 

Aslibury  Hailway  Co.  v.  Riclie         i.  424 

i.  son,  403,603 

ii.  274,  309 

i.  95 

ii.  320,  513 


Asiiby  V.  Bliickwell 

V.  ,Tanu'8 

I'.  West 
Aslicroft  r.  Morrin 


Aslik'v's  Cast'  i.  348 

Asliton  r.  Aslifon  i.  199 

V.  Atliintic  Hank  i.  405 

V.  Blackstiaw  i.  207 

Ashworth  i\  Outram  i.  212,  214 

Asiatic  Hanking  Corp.,  In  re;  Ex  /mrte 

Colluni  i.  371 

Asiatic  Banking  Co.,  In  re;  Symon's 

Case  i.  128 

Aspinall  t\  Wake  i.  4t')l 

Aspinwall  r.  County  of  Daviess  i.  410,  412 
Astbury,    Ex  parte ;  In    re  llieliards 

ii.  242,  24(5 
Astey  V.  Emery  ii.  324,325,320,  33({,  449, 

477,  491 
Astley  V.  Reynolds  i.  405 

Aster  !•.  Union  Insurance  Co.    i.  527,  628 
Astnips  t\  Leroy  i.  269 

Atchison,  &c.  Ii.  R.  Co.,  The,  v.  Roach 

ii.  214 

Athcrton  v.  Tilton  i.  4(18 

Atlantic  Mutual  Ins.  Co.  v.  Iluth      i.  277 

Atlantic,  &c.  R.  R.  v.  Reisner  ii.  56 

Atleo  V.  Backhouse  ii.  517 

Athcrsinitii  r.  Drury  i.  25 

Athcrton  r.  Newhall  ii.  280,  430,  502 

Atkins  V.  Curwood  i.  151,  152,  158 

Atkinson,  Ex  parte  i.  145 

V.  Atkinson  i.  405 

V.  Bell  ii.  253,  254,  255,  266,  258,  259, 

200,  261,  262,  320,  341,  504 

V.  Ritchie  i.  633,  634 

I'.  Stephens  i.  269 

V.  Smith  ii.  523 

Atkyna  v.  Pearce  i.  li>S 

Attaway  v.  The  Bank  of  St.  Louis    i.  300 

Attorney-Oeneral  i-.  Fullerton  i.  450 

V.  Holland  i.  617 

V.  Piirntlicr  i.  144 

V.  The  Corporation  of  Exeter    i.  298 

V.  Wilson  i.  317 

Attwood  V.  Munnings  ii.  45 

V.  R.  I.  Ag.  Bank  i.  304 

V.  Sellar  j.  288 

Atwater  r.  Hough  i.  16 

V.  Woodbridge  i.  409 

Atwood  V.  Chichester  i.  192, 205 

t'.  Cobb         ii.  638,  639,  541,  542,  602 

t>.  Mullings  i.  106 

V.  Small  i.  326,  621 

Audcnreid  v.  Randall  ii.  436 


Paor 
Audley's  Ca?o,  Lord  1. 624 

Augusta  t'.  Kingsflcld  i.  108 

Augusta,  The  i.  256,  263.  284 

Augusta  Bank  v.  Hamblet  i.375 

Aurand  v.  Shacffcr  i.  150,  216 

Aiirora,  The  i.  255.  278,  280 

Austen  v.  Craven  i.  26,  ii.  256,  478 

V  Graham  i.  137 

Austin  r.  Gcrvas  i.  126 

V.  Great  Western  Railway  Co.   ii.  90, 

91 

r.  Pattnn  i.  118 

Australia,  The  i.  251,  277 

Australian   Royal  Mail  Steam  Nav. 

Co.  V.  Marzetti  i.  320 

Australian  Steam  Navigation  Co.  v. 

Morse  i.  258,  269,  272 

Aveline  i'.  Mellhuish  i.  466 

Avery  v.  Bowden  i.  17 

r.  Stewart  j.  410 

Awde  I'.  Dixon  i.  397 

Ayer  v,  Warren  i.  240 

Ayers  v.  Burns  i.  123 

Aylett  I'.  Ashton  i-  202 

Avliffc.  Tracy  ii.  646 

Ayliffe  r.  Murray  i.  459.  464 

Avlsworth  V.  Whitcomb  i.  81,  82 

Ayre's  Case  i.  316,  325 

B. 

Babcock  v.  Terry  i.  202 

V.  The  Lake  Shore  R.  R.  Co.   ii.  13."., 

134 
Bach  V.  Owen  ii.  272,  275 

Backliousc  r.  Mohun  ii.  (>-9 

Bacon  v.  Bacon  i.  617 

r.  Eccles  ii.  301,  433,  434,  500 

Baddelcy  v.  Baddcley  i.  33 

Badger  r.  Badger        i.  295,  304.  305,  456 
V.  Pliinney  i.  123,  133 

i\  The  Bank  of  Cumberland       i.  601 
Baens  v.  Canning  i.  382 

Bage,  E.r  parti'  i.  45'.* 

Bagian  Hall  Collier  Co.,  In  re       i.  10,  .32 
Bagiiall  V.  Carli'ton  i.  312,  343,  368 

Bags  of  Linseed  i.  ()-!5 

Bagstor  t:  Karl  of  Portsmouth  i.  192 

Baliia  &  San  Francisco  Ry.  Co.,  In  re 

i.  309,  603 
Bailev  r.  Bainl)erger 
V.  Bidwell 


V.  Clark 
r.  Culverwell 
f.  Freeman 
V.  Johnson 
V.  Snel  grove 
V.  Sweeting 
V.  Teakle 
Raily  r.  Ogden 
Bainbridge  v.  Lax 
V.  Pickering 
V.  Wade 


i.  129 

i.  426 

i.  468 

i.  62.3,  624,  ii.  492 

ii.  648,  680,  623 

ii.  644 

i.  80 

ii.  630,  531,  646.  671 

i.  503 

ii.  496,  621 

ii.  412 

i.  120, 121,  127 

ii.  526,  570,  671 


Baines  v.  Jevons  ii.  341, 342, 4  tO,  441, 448. 
449,  474,  478,  401 


i 


,1  ; 


xxu 


TABLR  OP  CASES   CITED. 


w 

i 


.  Ill 


Paoi 
Raines  v.  Swainson  i.  642,  645,  64ii 

Hair  v.  Robinson  i.  2'M 

Bnird  v.  The  Bank  of  Washington   i.  HOil 


Baker's  Appeal 

i.  600 

Baker  v.  Barney 

i.  181, 102 

V.  Bent 

i.  684 

I'.  Cooper 

i.  100 

V.  Corey 

i.  201 

I-.  Dening 

ii.  586,  500 

I'.  Keen 

i.  Ill,  121 

V.  Kennett 

i.  130 

V.  Lamb 

i.  238 

V.  Lovett 

i.  128 

I'.  Morris 

i.  110 

V.  Rubins 

i.  407 

V.  Sampson 

i.  161 

i;.  Whiting 

i.  502 

t>.  Williams 

i.  86 

Baldey  v.  Parker 

ii. 

217. 

218,  302.  334, 

335,  340, 356, 357, 

3G5 

3',t7, 408, 400, 438, 

443,  460, 

455,  476 

477,  401,  405 

Baldrick  v.  Garvey 

i.  140 

Baldwin  v.  Canfieid 

i 

375,  376,  377 

1'.  Ely 

i.  107 

V.  Foster 

i.  110 

I'.  Nortli  Brantford 

i.  410 

V.  The  Bank  of 

Newbury           i.  002 

Bale  I'.  Newton  i.  73 
Ball  V.  Carow  i.  405 
V.  Montgomery  i.  190,  200 
Ballard  v.  Walker  ii.  505 
Ballin  r.  Dillaye  i.  240 
Ballingalls  r.  Gioster  i.  17 
Baltimore  &  Ohio  U.  R  Co.  v.  Camp- 
bell ii.  214 
V.  Green  ii.  214 
V.  Schumacher  ii.  100 
V.  Wilkins  ii.  01,  02 
Baltimore  &  Philadelphia  Steamboat 


Co.  V.  Brown 
Bancroft  i».  Couscn 
Bangert  v.  Bangert 
Bank,  In  re 

V.  Dillon 

V.  Ilagncr 

I'.  Kennedy 

J).  Kortright 

i:  Lanier 

V.  Miller 

V.  Monteath 

ti.  Steward 

I".  Taylor 

V.  Warren 
Bank  of  America  r.  Bank 
Bank  of  Augusta  r.  Karlo 
Bank  of  Batavia  r.  Now 

Ii.  R.  Co. 
Bank  of  Bengal  r. 

V.  Leod 
Bank  of   Briti-sh 
Hooper 


I. 


158,  214 
i.  405 
i.  210 
1.402 
1.63(5 
i.  06 
i.  602 
i.  380 

393,  003 
i.  240 
i.  601 
i.  380 
1.240 
i.  380 
i.  217 

301,  387 

&c. 


York, 
II.  ;;-^,  35,  04,  05,  00,  70 
Pagan  i.  106 

i.  100 
North  America  v. 

i.  COO,  601 

Bank  of  Columbia  r.  Fitzhugh  i.  560 

V.  Patterson's  Admstr.  i.  320 

1).  Patterson's  Exrs.  i.  18 

Bank  of  England  v.  Mo£rat  i.  820 


Paoi 
Bank  of  Ireland  ^.Trustees  of  Evans's 

Charities  i.  828,  309,  370 

Bank  of  Kentucky  v.  The  Schuylkill 

Bank  i.  601 

V.  Wister  i.  388 

Bank  of  London  v.  Tyrrell        i.  308,  000 

Bank  of  Louisville  v.  Gray  i.  247 

Bank  of  Middlebury  v.  Rutland  & 

Washington  R.  R.  Co.    i.  375,  377,  378, 

379 
Rank  of  Monroe  r.  Field  i.  604 

Bank  of  Pittsburg  v.  Ncnl  i.  397,  015 

Bank  of  Rochester  v.  tlones  ii.  58 

Bank  of  Scotland  i-.  Watson  i.  487 

Bank  of  the  United  States  f.  Owens  i.  301 
Bank  of  Utica  v.  Smallev  i.  380,  393,  403 
Bank  of  Vergennes  v.  Warren  i,  876,  395, 

001 

Banks  v.  Goodfellow  i.  144 

V.  .luduh  i.  299 

Bannafyne  v.  Bannatyne  i.  144 

Barbe  v.  Parker  i.  8,  0,  18,  21 

Barber  r.  Bruce  i.  660 

I'.  Dennis  i.  008 

V.  Hartford  Bank  i.  407 

V.  Meverstein  ii.  20 

Barbo  v.  Rider  i.  138 

Barclay,  Kt  parte  ii.  245,  247,  248 

Barelli's  Telegraph  Co.,  In  re;  Collie's 

Claim  i.  603 

Bargate  i-.  Shortridge  i.  316.  330,  003 
Baring  v.  Corrie  i.  100,  520,  671,  572,  580. 

507 
Bark  Chusan,  The 
Bark  Herald,  The 


Barker,  In  re 

In  the  Matter  of 

)'.  Bucklin 

V.  Frye 

V.  Greenwood 

u.'IIodcson 

f.  Maine  Ins.  Co. 

V.  Marine  Ins.  Co 

V.  Mcch.  Ins.  Co. 

V.  Roberts 

I'.  York 
Barlow  v.  Ileneage 
Barnaby  v.  Barnaby 
Barnard  v.  Adams 

?'.  Bockhaus 
Barned's  Banking  Co.,  In  re 
Barnes  r.  Ewing 

I'.  Faley 

V.  Insurance  Co. 

t'.  McCrea 

V.  Ontario  Bank 

r.  Toye 
Baniesly's  Case 
Barnett  i\  Farley 

I'.  Glossop 

r.  Ilarshbarger 
Barnslcy,  Ex  parte 
Barnum  v.  Young 
Barque  Griffin,  The 
Barque  Laura,  The 


279,  282 

i.  268 

i.  138 

i.  145 

ii.  304 

i.  52,  07 

i.  586,  503 

i.  634 

i.  465 

i.  453,  602 

i.  320 

i.  14,  15,  16,  100 

i.  268 

i.  73 

i.  130 

i.  272 

i.  490,  ii.  301 

i.  003 

i.  594 

ii.  120 

i.  499 

i.  15,  93.  95 

i.  601 

1.  120, 127 

i.  141 

ii.  412,  471,  493 

ii.  361 

1.234 

i.  146 

1.240 

1.633 

i.  280 


* 

..It 

1' 
n 
li 

1 

n 

1 

Bi 

if 


1 


A 


TABLE   OF  CASES   CITED. 


Paoi 
if  Evans'H 
.  828,  3U9,  379 
•chuylkill 

i.  fiOl 

i.  388 

i.  808,  On« 

i.247 

lutland  & 

876,  377,  378, 

379 

i.  604 

i.  397,  015 

ii.  68 

I  i.  487 

.  Owens  i.  301 

.  380,  893,  403 

en  i.  376,  395. 

001 

i.  144 

i.  299 

i.  144 

i.  8,  9,  18,  21 

i.  f)t)0 

i.  008 

i.  497 

ii.  29 

i.  138 

.  245,  247,  248 

•e;  Collie's 

i.  603 

,  316,  380,  003 

571,  572,  580. 

597 

279,  282 

1  i.  268 

i.  138 

i.  145 

ii.  304 

i.  52,  07 

i.  580,  593 

i.  634 

i.  465 

i.  453,  502 

i.  320 

15,  16,  100 

i.  268 

i.  73 

i.  130 

i.  272 

496,  ii.  301 

i.  003 

i.  594 

ii.  120 

i.  499 

.  15,  93,  95 

i.  601 

i.  120, 127 

i.  141 

12,  471,  493 

ii.  351 

i.  234 

i.  145 

i.  240 

1.033 

i.280 


3 


i. 


Paoi 

i.  t>:!3 

i.  103.  It'iO 

i.  126,  315 

i.  98 

i.  242 

147,  148 

ii.  504 

ii.  252 

i.  632 

i.  2N') 

i.  55(1 

i.  544 

ii.  547.  508,  593,  (!(I2 

i.  3l5,  310,  599 


n.irquc  Tangier,  The 
Hiirr  /'.  Armstrong 
Harreli.  AV  }<aile 

V.  .Siibiiiu 

V.  Tillou 
niirrutt  r.  Uu.xton 

I'.  (loihhird 

u.  Luciiij 

I'.  Koxers 
Rarron  >'.  Stewart,  The  Panama 
IJarrow  /'.  Coluu 

V.  Dyster 
Barry  r.  ('noiiibe 

V.  Crosiit-y 

V.  Ni'sliain 

I..  Miilliiiid  Hy.  Co. 
Barry  Railway  Co..  In  re 
Barsi'll  V.  i;iiani'fllor 
Barti'ls  ''.  .Moore 
Barter  v.  Wheeler 
Bartholomew  i:  Finneniore 

I'.  Leach 

II.  Markwic.'k 
Bartlett  r.  Hniley 

I'.  I'eiitlaiid 

I'.  Keniinjiton 

V.  Uinfried 

V.  Weils 
Barton  r.  (lamer 

I'.  Williams 

Bartop  c.  lloare 

Bartram  r.  I'ayne 

Barwick  c.  The  Hnplish  Joint  Stock 

Bank  i.  331,  3;i5,  339,  310,  309.  599.  603. 

tUK).  008,009.  012.017 

Basket  i'.  Ilassell     i.  38,  69,  70,  73.  74,  75. 

.  70,  78,  79,  83,  85.  8(i 

Bastow  V.  Bennett  ii.  527 

Bastrcss  r.  Chickering  i.  15,  93,  97 

i  543 


468,  477 

i.  010 

i.  308 

i.  138 

i.  115 

ii.  202 

i.  129 

i.  453,  502 

i.  17 

i.  132 

i.  578,  58(5 

i.  70 

i.  230 

i.  133,  134 

i.  80 

i.  042 

i.  292 

ii.  250 


i.  454 

i.  502 

527,  536,  ii.  539, 

670 

i.  107 

ii.  300 

ii.  028 

ii.  244 

i.  375 

i.  344 

ii.  8 

i.  382 


Bate  V.  Cartwright 

I'.  Hooper 

V.  Scales 
Bateman  v.  Phillips       i. 

V.  Pool 
Bates  V.  Chesebro 

V.  Col 

V.  Duke  of  Beaufort 

V.  Keith  Iron  Co. 

V.  Mackiuley 

V.  Todil 
Rates  Countv  v.  Winters 
Bath,  The  Karl  of  v.  The  Earl  of  Brail- 
ford  i.  143 
Batre  v.  Durand  i.  0.)7 
Battye  v.  Cressley  i.  378 
Batiit  V.  Hartley  i.  056 
Bauennan  v.  Uadenius  i.  487 
Baumann  v.  Janies  i.  575,  ii.  698,  621,  672 
Bawdes  r.  Amhurst  ii.  644 
Baxendale  r.  The  Great  Eastern  Ry. 

Co.  ii.  92 

Baxter  v.  Rush  i  1;W 

V.  Earl  of  Portsmouth       i.  138,  142, 

148, 192 


XXlll 

Paoi 

I.  232 
i.  lOU 
i.  30 
i.  013 
i.  668 
1.480 
i.  678 
i.  500,  5»)2 

Baylis  c.  Dnieley  i.  118,  127 

Baviies  r.  l'a\  ne  i.  9 

Bazeley  r.  hlrdcr  i.  181,  183,  184, 186,  186 
Beach  <•.  Miller  "  """ 

Beak  V.  Beak 


Baxter  v.  Maxwell 
Uayley  f.  (iouldsniith 

t^.  Iloinaii 

V.  Manchester,  &c.  Ry.  Co 

V.  Morley 

V.  Taber 

I'.  Wilkina 
RavlilTe  c  Butterwortii 


Beak's  Estate.  In  re 
Beal  r.  McKieriian 
Beale  v.  Arabia 

r.  Lee 
Beals  V.  Allen 
Bean  v.  Boothby 
V.  Burbank 
V.  Hyde  Park 
I'.  Patterson 
(•.  Valle 
Beane  r.  Morgan 
Bear's  Estate 
Beard  r.  Dedolph 
Beardsley  c.  Boot 
V.  Smith 


i.  297 

i.  86 

i.  ;w 

i.  453,  459,  502 

i.  190 

i.  139,  140 

i.  480,  ii.  40 

i.  229 

ii.  554,  657,  562,  002 

i.  410 

i.  208 

ii.  537 

i.  193 

i.  237 

i.  222 

i.  460 

i.  409 

Bcatty  v.  North  West  Tr,  Co.    i.  300,  307 
Beaudry  i'.  Belch  i.  205 

Beaufort,  Duke  of  v.  Bates  ii.  240 

(•.  Neeld  i.  486 

Beaumont  v.  Brengeri        ii.  368,  450.  476 
Beuven  v.  McDonnell  i.  139,  140 

Beck  c.  Kanterwicz  i.  308,  342,  (iUO 

c.  Kebow  ii.  247 

Becker  v.  Smith  i.  99 

Beckett  f.  Corilley  i.  134 

Beckham  r.  Drake  i.  639 

Beckwith.  In  re  i.  140 

c.  Talbot  ii.  073 

Bedell  c.  Bedell  i.  186 

I'.  Carll  i,  50,  55.  50,  h8 

Bedford  v.  Biigsliaw  i.  310,  599 

Bellinger'-.  Whittemore  i.  24 

Beebee  r.  Robert  i.  524 

Beech  /•.  Keep  i.  33 

Beed  v.  Bhmdford  i.  334 

Heeler  v.  Young  i.  Ill,  122 

Beer  V.  London  &  Paris  Hotel  Vii.   ii.  618, 

657,  660.  072 
Beers  r.  Plurnix  Glass  Co.  i.  375,  001 


Beeston  r.  Beeston 
Beeswing.  The 
Begbie  v.  Clarke 

f.  Fen  wick 
Rehn  v.  Burness 
Behrens  v.  McKenzie 
Belch  ier.  Et  parte 
Bell  r.  Brnen 

I'.  C'unningliam 

I'.  Kellar 

V.  Lakin 

V.  Palmer 

i».  Stoecker 


i.  543 

i.  270 

ii.  8 

ii.  245.  240.  247 

ii.  420,  492 

i.  140 

i.  617,  ii.  214 

ii.  673 

i.  627 

i.  206 

i.  652 

i.  655 

i.  216 


iii 

*■  I 


if 


XXIV 


TABLE  OF  CASES  CITED. 


Paok 
Bell  f.  Walsh  i.  201 

BeUlen  v.  (.'urter  i.  t)l 

Beldoii  I'.  Campbell    i.  2G4,  255,  201,  2U5 
Bulfast,  Till'  i.  2H7 

Belktutp'H  (Sir  Thomas)  Case 


i. 


1. 


i.  20(» 
:i.  ;}M4 
i.  142 
i.  4rj2 
630,  634,  li.  278 
ii.  m:i 
i.  3(W 
i.  GOU 
i.  4f)'J 

i.  1G3,  154 
i.  684 
i.  C«(J 

i.  464,  45i) 
i.  013 

ii.  691,  6!t2 

i.  130 

i.  07 

ii.  I'.tO 

i.  164,  108,  171,  175 

i.  2.34 


Bellamy  r.  Siibino 
Boiler  v.  Joirb 
Bellew  V.  HiiHHell 
Belsliaw  v.  HuhIi 
Belt  ij.  Marriott 
Beiiian  ".  liulTord 
Benedict  r.  Davis 
Beniiij;fleiil  v.  Baxter 
Benjaiiiin  r.  Henjaniin 

V.  I'orteoiis 
Bennell  v.  Hurley 
Bennett,  Ex  parte 

V,  BayeH 

V.  Hruinfitt 

r.  ('alking 

V.  Cook 

V.  Filynw 

V.  Jones 

V.  Matiiin(;Iey 

V.  McLaueiilin  i.  132 

V.  St.  Louis  Car  Roofing  Co.      i.  208 

V.  Stout  i.  228 

V  Vade  i.  141 

Benoit  r.  Conway  i.  410 

Bensley  v.  Hignold  i.  543,  ii.  261 

I'.  Burden  i.  205 

Benson  v.  Cliapman  i.  276 

V.  Hawtiiorne  i.  290,  308 

V.  Heathorn  i.  205,  502 

V.  Sinitli  ii.  310,  044 

Bent  r.  Manning  i.  122 
Bentall  v.  Burn   ii.  220,  335,  308,  445,  477 

Bentlial  v.  Judkins  ii.  534 

Bentley  i'.  (Graven  i.  501,  OOti 

1-.  Griffin  i.  102,  103 

BeresfonI,  A'x  parte  i.  370,  371 

Berg  V.  The  Atchison  ii.  163 

V.  The  Narragansett  Steamship 

Co.  ii.  134,  135,  130,  214 

Bergen  v.  Bergen  i.  186 

Berger  v.  Clark  i.  237 

r.  Duff  i.  401 

Berkeley  v.  Watling  ii.  8,  2»,  34 

Bernard's  Case  i.  332 

Bernard  v.  Aaron  i.  267 
Bernard's  Township  v.  Stebbins      i.  413, 

418,  422 

Berrien  v.  McLean  i.  83,  453 

Berry  v.  Alderman  i.  420 

V.  Berry  i.  00,  82 

V.  C.ihhons  i.  384,  385 

V.  Williamson  i.  050 

Berryiiian  i'.  Wise  i.  425 

Bertliold  v.  Goldsmith  i.  408 

Besonby,  In  re  i.  117 

Bethel  i-.  Woodworth  ii.  044 

Bettle  V.  Wilson  i.  190 

Betts  V.  Carroll  i.  132, 139 

Betty  Cathcart,  The  i.  259 

Bevan  v.  Gething  ii.  274 


Bevan  c.  Haydcn 

V.  Williams 
Bever  i:  butler 
Beverley's  Case 
Beverley  v.  The 

&  Coal  Co. 
Buxwell  V.  Christie 
Beyer  v.  Adams 
Bianclii  i>.  Nash 
Bilk  I'.  Motley 
Bickerton  v.  Burrell 
Bickford  v.  Gibbs 
Bicknell  v.  Smith 
Bittin  r.  Bignell 
Bigelow  V.  Kinney 
Bigg  i;.  Whisking 

Bigley  v.  Risher 
Bill  1-.  Bament    ii 


Paoi 
i.  238 
i.  425 

ii.  044 
i.  146,  146 
Lincoln  Gas  Light 

i.  317,  320 

i.  605 

i.  543 

i.  100 

1.  602 

1.570 

ii.  634 

i.  290 

i.  103,  100 

i.  118,  129 

ii.  302,  803,  834,  387, 

438,  443,  470,  491 

i.  20 

285,846,  861,807,460, 

452,  470,  477 

ii.  278 


ii. 


461,  007 

i.  163 

i.  378 

i.  132 

617,  623 

i.  017 

i.  624,  025 

i.  146 

ii.  660,  654 

ii.  539,  540 

ii.  482 

515,  670,  677 


V.  Porter 

Billage  v.  Southee 

Billing  i<.  I'ilcher 

Billings  v.  I'rinn 

Bingham  v.  Barley 

Birckhead  v.  Brown 

Bird,  tn  re 
V.  Brown 
V.  Lefevre 
V.  Monroe 
t;.  Richardson 

Birkett  v.  Jenkins 

Birkmyr  v.  Darnell  ii, 

Birmingham  v.  Sheridan 

Birt  V.  Birt 

Bish  r.  Johnson 

Bishop  V.  Brainerd 
V.  Crawshay 
V.  Klhott 
V.  Ware 
I'.  Young 

Bishop  of  Winchester  i".  Paine 

Bissel  r.  Spring  Valley  Township 

Bissell  V.  Balcom        ii.  281,  290,  201,  292, 
293,  204,  300,  502 
V.  City  of  Jeffcrsonville  i.  432 

V.  Foss  i.  606 

V.  Jeffcrsonville  i.  408,  600 

V.  Kankakee  i.  416 

V.  Michigan  Central  R.  R.  Co.   i.  401 

Bitter  v.  Rathman  i.  231 

Black  i;.  Bryan  i.  105 

V.  Sippy  i.  242 

V.  Zacharie  i.  380,  634 

Blackburn  v.  Mackay  i.  Ill 

V.  Smith  i.  126,  334 

V.  The  State  i.  412 

V.  Vigors  i.  013,  016 

Blackett  v.  Royal  ExchangeAss.  Co.  i.  600 

Blackmore  i'.  Bristol  &  Exeter  Ry. 
Co.  i.  500 

Blackwood  i>.  Borrowes  i.  617 

Blag  V.  Insurance  Co.  ii.  56 

Blagden  v.  Bradbear  iL539,  542,  683,  580, 

044,  606 


351 
450 
404 
404 
273 
245 
i.  631 
ii.  535 
i.  382 
i.  420 


Bl( 


Blo.x 


TABLK  OP  CASES  CITED. 


Paoi 

1.  '2;i8 

i.  425 
ii.  044 

145,  146 

m,  320 

i.  605 

i.  543 

I.  100 

i.  502 

i.  670 

ii.  684 

i.  2tt0 
103, 100 
118,  129 

8:i4.  ;W7, 

,  470,  491 
i.  20 
867,  450, 
,  no,  477 
ii.  278 
.  451,  607 
i.  103 
i.  878 
i.  132 
i.  617,  623 
i.  017 
i.  624,  625 
i.  145 
li.  550,  554 
ii,  539,  540 
ii.  482 
5,  670,  577 
i.  351 
i.  450 
i.  404 
i.  404 
ii.  273 
ii.  245 
1.631 
ii.  535 
i.  382 
.liip  J.  420 
0,  201,  292, 
14,  300,  502 
i.  432 
i.  506 
i.  408,  600 
i.  416 
,  Co.  i.  401 
i.  231 
i.  166 
i.  242 
i.  380,  634 
i.  Ill 
i.  126,  334 
i.  412 
.  i.  613,  615 
L.  Co.  i.  560 
ler  Ry.   „ 
■     i.  5P0 
i.  617 
ii.  66 
b,  683,  580, 
'   644, 666 


I'Ani! 

nirtikic  r.  Stcniliriilgo  ii.  89 

niiiir  r.  UrDinlfv  I.  621 

V.  Cmiiiin}  County  I.  417 

r.  (Jriiy  i.  '574 

f.  Oriiioiid  ii.  271 

r.  SiiiMl(irilS9  ii.  oHl 

Uliilti-  r.  UulTiiio  Crcik  U.  R.  Co.     i.  ;«»(» 

I'.  .Mipwiit  I.  l!4l 

Uliiiti',  I'lic  Julia  i.  200,  277,  278 

Uliilvily   oriiihiiiK'e  Co.,   Luinsilfn's 

('ii!<i',  //(  !■!•  i.  12H 

Bill  key  r.  Diiisilnie  ii.  275 

Bliinchiini  r.  I'Viiring  i.  207 

V.  ShcMciii  i.  8M 

I'.  TIr-  Maysviili',  &c.  Co.  i.  :m 

V.  Trim  ii  014 

Blanclifts  r.  (ii-nernl  Stciim  Nav.  Co. 

ii.  1.1 

Blnscn  i:  Fli'tclicr  i.  'J70 

Biiisd.'l  r.  I,()iki'  i.  75,  70,  77,  82 

i        Bliiti'liforii  r.  Christian  i.  141 

;,       Bk-aki'V  r.  Smith  ii.  587 

I       BlonkiiisDj)  r.  Clayton       ii.  275.  280,  320, 

■i  336,  331*,  342,  350,  378,  438,  4'.il 

Bli}{h  I'.  Uri'nt  ii.  222 

•;        Blife'ht  r.  l»ii);e  i.  034 

iv.  'I'ol.in  i.  494 

>li88  I'.  Ivlinonson  i.  3()ti 

V.  MatttTson  i.  300 

V.  Hopes  i.  2*)7 

t;      Blissctt  r.  Daniel  i.  402,     13 

,|      Block  V.  CoMitnissioners  i.  i.!2 

''  r.  Hfiver.'iham  i.  343 

^      Blood  r.  (ioodrich  ii.  315,  043 

M  V.  Ilanly  ii.  044 

W  )'.  I'lllllIlT  1.   15 

:■       Bloomer  r.  Waldron  i.  29 

>      Bloomfiell  V.  Charter  Oak  Bank     i.  400, 

f  410 

i      Blore  V.  Sutton  i.  650 

I      Blount  ('.  Burrow    i.  39,  40,  67,  65,  86,  87 

i'li      Bliiwers  r.  Sturtevant         i.  153,  180,  187 

Blo.xam's  Ciise  i.  357,  305,  300 

Blo.\aiu,  /vr  /mrte  i.  .304 

r.  Saiiilers  i.  105,  62.%  ii.  475 

Blum  r.  Uoss  i.  223,  224 

Board  of  Commissioners,  &c.  The,  c. 

Heyiiolds  i.  308 

■      Board  of  Supervisors  r.  Budlong      i.  188 

Boarman  v.  (iraves  i.  240 

Bock  V.  (lorrisen  1.  (Ml 

.'v      Boden, /i.r /(«)7e  i.  041 

:#     Bodenhain  v.  Hoskins  i,  574,  680 

J      Bodfjer  f.  Arch  ii.  274 

;      Bogan  V.  Finlay  i.  47 

^i-      Bojfert  <•.  (Julick  i.  238 

$  u.  Ogdens  ii.  507 

i^      Bogget  V.  Frier  i.  200 

71      Bog  Load  Mining  Co.  ».  Montague  ii.  370, 

372,  373,  410,  426,  426,  431,  4.34,  402, 

493,  499 
Boggs  i\  Bond  i.  4(5 

Bogle  c.  Stewart  i.  4.'>1 

Bolieau  v.  Kutlin  i.  385 

Bold  Buccleugh,  The  ii.  48 


Boiling  I'.  Carter 

r.  M(uk 
Bolton  r.  Holton 

I".  I'rentice 

V. 


XXV 

Paoi 

i.  385 

i.  230 

i.  73 

1.168 


The  Lancashire,  &c.  Railway 
Co.  ii.  468 

Bonaparte,  The  i.  261,  254,  258,  209,  283. 

285 


lionard  r.  Kittering 

i.  224 

Bond  r.  Hond 

i.  142 

r.  War.l 

i.  20,  27,  4M 

Honfield  ('.  Uassull 

i.  (K« 

iionhain's  ('asu 

i.  022 

Bonhaui  v.  Needles 

1.  427 

Hon nc well  v.  Jenkini          ii 

006,  000,  001 

IV.nsfleld  1).  Wilson 

i  543 

Hoimteel  v.  Vanderbllt 

i.  490 

lion/.!  V.  Stewart 

i.  042,  040 

Moody  r.  iMcKenney 

i.  129 

IJooker  r.  Waller 

i.  150 

liooth  ('.  Itooth 

i.  017 

V.  Smith 

i.  29,  227 

Borneman  v.  Sidlcnger        i. 

.18.  80,  87,  00 

Horries  r.  Imperial  Ottoman  Bank  i.  525, 

570,  577 

Morrodailfc  v.  Middleton 

i,  9 

Horrouglis  v.  Hichman 

i.  147 

Horrowscale  c.  Bosworth 

ii.  4.36,  495 

Bosaiu    et  v.  Shortridge 

i.  538 

llostock  V.  Floyer 

i.  017 

V.  .lardine                      i 

500,  502.  597 

Boston  &  Maine  R.  R.  Co.  v 

.  Bartlett 

ii,  00.3,  604 

Boston  Bank  v.  Chamberlai 

n            i,  118 

I'oston    Colorado    Smeltin 

S    Co.    V. 

Smith 

i.  501 

Bostwick  V.  Atkins 

i.  127 

Mo.swell  i\  Kilborn 

ii.  5(H 

IJott  r.  .VIeCoy 

i.  528 

Bottomley  v.  Nuttall 

i.  549,  030 

Botts  t'.  Knab 

i.  230 

Bonclu'll  V.  Clary 

i.  110 

Boucher  v.  Lawson 

i.  290.  ii.  0.  7 

Boughton  V.  Knight 

i.  144 

Boulter  r.  Arnott       ii.  219, 

320,  343,  449, 

470,  491 

Bouts  V.  Ellis 

i.  33,  8(i,  87 

Bout  well  r.  O'Kecfo 

ii.  303 

Uourno  r.  Fosbrooke 

i.  47 

V.  Freetli 

i.  506 

BouviiT  r.  Caldwell 

ii.  506 

Bovard  v.  Kittering 

i  236 

Bovey  v.  Tracey 

i.  317 

Bowiien  v.  Johnson 

i.  387 

Bowen  r.  Burk 

i.  98 

V.  Morris 

ii.  611,  594 

Bower's  Appeal 

i.  240 

Bowers  ;•.  Anderson 

ii.  503 

>'.  Ilurd 

i.  86 

Bowes  V.  London  Water  Works        i.  454 

t'.  Pontifex 

ii.  412 

Bowlby  V.  Bell 

ii.  222 

Bowmanville  Machine  Co. 

V.  Demp- 

ster 

i.  605 

Bowring  v.  Shepherd 


i.  32.3,  544 


■rr 


! 


I 


'!i 


il 


I      ' 


XXVI 

Boyce  r.  Edwards 

I".  Green 
Boyd  I'.  Alabama 

V.  Hrotlierson 

V.  Hawkins 

V.  llitflieock 

V.  Slierrock 

V.  Stone 

V.  Vaiulonbcrg 
Boydell  (■.  IJrmnHiond 


TABLE  OF  CASES  CITED. 


Page 

ii.  017 
ii.  608,  618,  645 
i.  4'4 
i.  397,  400 
i.  405 
129 
ii.  245,  246,  247 
ii.  -2m 
i.  5% 
ii.  542,  552,  6«',t, 
573,  5!t8,  606,  044,  64",»,  660 
V.  MeMieliael  ii.  250,  252 

Boyett  '•.  Potter  i.  150 

Boytitoii  (•.  Isaacs  i.  00 

Brabin  r.  Uyile  ii  270,  304,  305,  300 

Bracken ri(l{,'c  v.  Holland  i.  4(15 

Bradbury  v.  Barnes  i.  503,  605 

Braden  r.  (iose  i.  221,  222 

Bradford's  Appeal  i.  150,  210 

Bradford  v.  The  South  Carolina  K.  H. 

Co.  ii.  108 

Bradford  &  Patton  v.  The  South  Car- 
olina 11  R.  Co.  ii.  108 
Bradlev  r.  Cary                                ii.  017 
r.  Varwell  i.  207 
V.  Ilarknes!                                   i.  506 
V.  Holds  worth                             ii.  222 
r.  Hunt  i.  87 
Bradly  r.  Boston  Glass  Co.               i.  524 
r.  (Jregory  i.  30 
Bradstreet  v.  Kvesson                         i.  595 
V.  Heran                                         ii.  50 
Brady  ;•.  Todd                             i.  610,  613 
Bragdon  v.  Insurance  Co.                  i.  500 
Bralian  ;■.  Uagland                              i.  3'.I9 
Braley  c.  Goddard                              i.  4''8 
Bramwell  i'.  S|)iller                             i.  571 
Brancli  v.  City  of  Charleston     i.  434,  440 
V.  Jcssup                                       i.  380 
r.  Hoberts                                     i.  800 
Brand    .  Brand                                  ii.  307 
V.  Fociit                                       ii.  500 
Brandt  v.  Howlhy                               i.  056 
Brant  v.  Virginia  Co.                         i.  410 
Brantley  v.  Wolf                                 i.  i:!2 
Brantoni  r.  Griffits                     ii.  240,  241 
Braslier's  Ex'rs  r.  Cortlandt              i.  145 


Brass  c.  Maitlanil 
Brassiiigton  i\  Ault 
Bray  r    Bates 
r    Kettle 
Braysbaw  r.  Eaton 


i.  272,  ii.  80 

i.  4(il 

i.  285 

i.  508,  512,  530,  503 

i.  Ill),  120,  121,  127, 

265 


Breed  v.  Jndd 
Bremner  v.  Bremner 
Brender  v.  Pliillip.4 
Brenton's  Estate,  In  re 
Breslaucr  v.  Geilfuss 
Bretz  V.  Diehl 
Brewer  r.  East  Machias 

V.  Swirles 
Brewster  v.  Taylor 
Brice  r   Stokes 
Brices'a  Case 
Brickliouse  v.  Briukhouse 


i.  125,  120 
i.  104 
i.  OiV) 

i.  33 
i.  222 

i.  00 

i.  103 

i.  454 

ii.  434,  500 

i.  617 

i.  18 

i.  86 


Paoi 
Brickley  i'.  Walker  i.  222 

Bridge  i'.  Bridge  i.  33,  61. 

Bridgeport  Bank  v.  New  York  &  New 

Haven  H.  Ii.  i.  603 

Bridger  r.  Savage  i.  643 

Bridger's  Case,  In  re  General  Provi- 
dent Ass.  Co.  i.  355,  364 
Bridges  v.  Blanchard  ii.  234 
Bridgnian's  Case                         i.  100,  248 
Bridgnian  v.  Bridgman  i.  151 

V.  Holt  i.  022 

Brierly  r.  Kendall  i.  105 

Brig  Eledona,  The  i.  208 

Brig  Jacniel  Packet,  The,  and  her 

cargo  i.  208 

Brig  .Mary,  The  i  272 

Brig  Nestor,  The  262,  279,  280 

Brig  Sarah  Ann  i.  504 

Briggs  V.  A  Liglit  Boat  i.  533 

V.  Home  Insurance  Co.  i.  409 

V.  Penniman 

V.  Vandcrbilt 
Brigliam  v.  Mead 
Bright  V.  Boyd 

v.  Hutton 

V.  Legerton 
Brightnian  r.  Eddy 
Brisco  V.  Brisco 

V.  McGee 
Bristol  I'.  Burt 
Bristol  &  Exeter  Railway  Co.  j'.  Col- 
lins   ii.  81,  82, 84,  86, 87, 95, 90,  07, 1 18, 

133,  138,  I'.tS 
Bristol.  Governor,  &e.  of  v.  Wait  i.  023 
Bristol  Milling  Co.  v.  Probasco  i.  298 
Bristow  V.  Eastman  i.  133,  134,  135 

V.  Wright  i.  0 

Briswalter  v.  Paloniares  i.  247 

British  &  American  Steam  Nav.  Co., 

Jn  re  ;  Ward's  Case  i.  304 

Britnall  v.  The  Saratoga,  &c.  R.  R.  Co. 

ii.  153 
Brittan  v.  Barnaby 
Britton  v.  Darker 
Broadliurst  a   Balpuy 
Brockway  v.  Allen 
Brodie  «•.  St.  Paul 
Brogden  v.  Marriott 

(".  Metro|)olitan  Ry.  Co. 
Bromley  v.  Brunton 

V.  Coxwell 

I'.  Jeffries 
Bronson  v.  Rodes 
Brook  i\  Evans 

V.  Middleton 
Brooke  r.  Gaily 

V.  New  York,  &c.  R.  R.  Co 


i.  403 

urn 

i.  402 
i.  504 
i.  330 
i.  455 
i.  292 
i.  108 
i.  469 
i.  100 


r.  White 
Rrooker  v.  Scott 


i.  630,  031.  635 

i.  400 

i.  454,  400 

i.  522 

ii.  630,  620,  030 

i  85 

ii.  653,  060 

i.  33 

i.  100 

573,  683 

i.  6 

i.  492 

i.  9 

110,  454 

ii.  34, 

36 

i.  7,  12,  1.3,  17,  21,  ii.  314 
i.  110,  119 


11. 


Brookes  v.  The  Earl  of  Rivers 
Brookly  v.  Insurance  Co, 
Brooklyn  r.  Insurance  Co. 
Brooklyn  Trust  Co.  v.  Hebron 
I  Brooknian  r.  Hamill 


022 
i  418 
i.  4:i2 
i.  410 

i.  287 


* 


TABLE   OF  CASES   CITED. 


XXVll 


Paok 
i.  '222 
i.  33,  51 
&New 
i.  603 
i.  543 
Provi- 
i.  355,  3f.4 
ii.  234 
i.  160,  248 
i.  151 
i.  «22 
i.  105 
i.  2(58 
nd  her 

i.  268 
i  272 
62,  279,  280 
i.  504 
i.  533 
i.  409 
i.  403 
i.  409 
i.402 
i.  504 
i.  330 
i.  455 
i.  2H2 
i.  1G8 
i.  469 
i.  100 
..  P.  Col- 
5,yC,,fl7,ll«. 
133,  138,  r.i5 
Vait      i.  623 
CO         i.  •-i'.'S 
133,  134,  135 
i.  9 
i.  247 
[av.  Co., 

i.  364 
R.  R.Co. 

ii.  153 
630,  031,  635 
i.400 
i.  454,  466 
i.  522 
630,  620, 630 
i  85 
ii.  653,  660 
i.  33 
i.  100 
ii.  573,  583 
i.  5 
i.  492 
i.  y 
i.  110,  454 
Co.    ii.  34, 
36 
17,21,11.314 
i.  110,  119 
■rs    i  622 
i  418 
i.  4:'.2 
,n    i.  410 
i,  237 


i 


Page 

Brookman  v.  Rothschild            i,  502,  618 

IJrooJJS  r.  Dent 

ii.  681 

V.  Hubbard 

i.  13,  14 

V.  Marbury 

i.  4!»4 

V.  Martin 

i.  503 

V.  Wliitc 

i.  29 

Brookwell's  Case 

i.  332 

Broome  v.  Taylor 

i.  412 

Broower  r.  Ilarbeck 

i.  375 

Brothers  i-.  Brothers 

i.  2'JO 

Brouf^liton  c.  I'ensacola 

i.  423 

I'.  The  Manchester 

Waterworks 

Co. 

i.  320 

Brow  r.  Brifihtman 

i.  113 

IJioHcr  V.  I'ishur 

i.  138 

IJrosvii  r.  Adiiins 

i.  370 

u.  Ackroyd 

i.  161,  104 

V.  Bi'llows 

ii.  539 

I'.  Hrowii 

i.  33 

V.  Byrne 

i.  627,  550,  607 

I'.  Caldwell 

i.  110,  128 

r.  Chase 

i.  146 

V.  Deloach 

i.  114 

V.  Fry 

i.  12 

i;.  (ioodinan 

ii.  6:^5 

V.  Gracey 

i.  276 

I'.  Hare 

u.  420,  402 

V.  Hodgson 

ii.  484 

V.  Kennedy 

i.  83 

V.  Maxwell 

i.  134 

V.  Mayor 

i.  414 

i;.  Mct^oine 

i.  123 

r.  McCiran             i. 

650,  651,  654,  (iou 

I'.  iMudfrett 

i.  178,  188 

V.  National  Bank 

i.  379 

V.  O'Connell 

i.  412 

V.  Patton 

i.  1(>5 

V.  I'eck 

i.  405 

V.  Pierce 

i.  405 

V.  I'owell  Coal  Co. 

ii.  14,  56 

V.  Purviance 

ii.  40 

V.  Towkinj^ton 

i.  301 

V.  Trantrunj 

i.  486,  ii.  40 

u.  Vandyke 

i.  300 

V.  Witter 

i.  3;>i 

Brown,  The 

ii.  56 

Brown,  Tiie  J.  W. 

ii.  53 

Browne  v.  Hare 

ii.  482 

I'.  Joddrell             i. 

138,  139,  143,  191 

Brownell  v.  Palmer 

i.  410 

Browning  v.  The  Provincial  Ins.  Co, 

of  Canada  i,  529 

Brownlee  v.  Bolton  ii.  435 

Brownsmith  v.  Gilbourne  i.  61 

Bruce  v.  Wcscott  i.  400 

Bruilf^e  c.  Bolin  i.  227 

Bruff  y.  Mali  j.  go;} 

Brumfitt  r.  Bremner  ii.  501 

Brunswick  First  Parish  i>.  McKean  i.  400 

Brimswick,  &c.  Co.  v.  Hoover        i.  97,  08 

Brush  V.  Admstrs.  of  Ileeves  i.  388 

Bryan  r.  Hunt  ii,  (544 

V,  Jackson  i.  1  Ki 

«.  Memphis,  &c.  B.  R.  Co.         ii.  214 

V.  Walton  i.  122,  128 


Paob 
Bryant,  v.  Commonwealth  Ins.  Co.  i.  268, 

259,  200,  2(W 

V.  Moore  i.  486 

V.  Pottinger  i.  132 

Buchanan  v.  Litchfield       i.  413,  415,421, 

427,  429 
Buck,  Expiirte  ;  In  re  Fawens  i.  641 

Buckel  V.  Blenkhorn  i.  82 

Buckingham  v.  Freeman  ii.  59 

V.  Osborne  i'.  424 

Buckhouse  i'.  Crosby  ii.  510,  511,uti3,  694 
Buckingliamsliire,  Karl  of  r.  Drury  i.  134 

ii.  572 

i.  482 

i.  27 

ii.  66 

i.  228 

i.  425 

ii.  526 

i.  190 

i.  130 

i.  337,  354,  396 

i.  428 

i.482 

ii.  644 

207,  298 


Bucklte  V.  Beardslee 
Buckk'y  c.  Barber 

V.  Gross 

r.  Naumkeag  Co. 

V.  Wells 
Buckman  v.  Buggies 
Buckmyr  f.Darnall 
Buckner  0.  Ruth 

I'.  Smith 
Budd's  Case 
Budd  V.  The  State 
Buddington  v.  Stewart 
Buel  V.  Miller 
Buell  V.  Buckingham 
Buffalo  &  Alleghany  R.  R.  Co.  v.  Cary 

i.  401 
Buffalo  &  N.  Y.  City  R.  R.  v.  Dudley  i.  404 
Buffalo  City  R.  R.  Co  v.  Douglass  i.  402 


Buffington  v.  Gerrish 
Bufifum  V.  Chadwick 

I'.  Merry 
Bugbee  i'.  Blood 
Bulkley  v.  Andrews 
Bullard  v.  Harrison 
Bullen  V.  Sharp    i 

Bullock  V.  Babeock 

V.  Dommitt 

V,  Menzies 
Bullpin  I'.  Clarke 
Bundy  v.  Hyde 

V.  Jackson 
Bunn  V.  Critchell 

V.  Markham 
Bunting's  Case 
Burbridge,  Ex  /xirle 
Burcli  c.  Leeko 
Burdott  V.  Williams 
Burdick  i-.  (Jreen 
Burgess  i;.  Clements 

I'.  McLean 

V.  Seligman 


i.  331 

i.  523 

15,  16,  26,  101 

i.  205 

i.  100 

i.  161 

469, 470,471, 47-2, 474. 

477,  478,  493 

i.  134 

i.  634 

i.  199 

i.  201,  202 

i.  116 

i.  297 

i.  161 

i.  37,  47,  79,  86,  87 

i.  195 

ii.  221 

i.  149 

i.  130 

ii.  278 

ii.  674 

i.  208 

i.  410,  414 


Burghart  v.  Angerstein      i.  110,  119,  127 


V.  Hall 
Burke  r.  Allen 

i;.  Haley 

V.  Smith 

I'.  Tuite 

i:  Turner 

V.  Wenklo 

V.  Winkle 
Burlingame  v.  Burlingame 
Burlington  v.  Beasley 


i.  100,  110,  110,  1(50 

i.  013 

ii.  .581 

1.391,40.3.405 

1.202,204 

i.  117 

i.  198 

i.  '2m 

ii.  266 

1.417 


XXVlll 


TABLE   OP  CASES   CITED. 


I  .  ,  !  I, 


Paob 
Burlington  v.  New  Haven  &  North- 
ampton Co.  i.  410 
Biirlinson's  Case  i.  40;J 
Burn  V.  Boulton  i.  SOU 
V.  Carvalho                                 i.  691 
Burnard  v.  Haggis                             i.  133 
Barnes  v.  IVnnull               i.  316,  333,  340 
Burnett  v.  Insurance  Co.                   i.  4!I9 
I'.  Lynch                                        i.  352 
V.  Snyder                                      i.  500 
Burney  v.  Poyntz                             ii.  278 
Burnliau'  v.  Buwca                            i.  420 
V.  Kid  well                                     i.  14fi 
V.  Webster                                    i.  601 
Burns  v.  Bangert                                 i.  220 
V.  Maddigan                                  i.  116 
Buron  c.  Dcninan                        i.  623,  620 
Burquin  >■.  Flinn                                  i.  262 
Burroughs  v.   Norwich  &  "Worcester 
It.  It,   Co.   ii.  110,  112, 113,  114,  138, 

171 
Burrowcs  v.  Lock  i.  315,  316 

Burrows  v.  Walls  i.  454 

Bursill  V.  Tanner  i.  215 

Burtis  V.  The  Buffalo,  &c.  R.  R.  Co. 

ii.  127,  168,  206 

Burton  ?•.  Bank  i.  77 

f.  Stewart  i.  16 

V.  Wookey  i.  502 

Busby  V.  Finn  i.  304 

Bush's  Case  i.  32 

Bush  t'.  Canfield  i.  14 

V.  Lathrop  i.  430 

Bushel  V.  Wheeler     ii.  320,  353,  354,  356, 

357,  358,  350,  360,  361,  362,  36.3,  366, 

367,  371,  378,  393,  408,  450,  453,  476, 

477,  486,  489,  495 

Bushnell  v.  Kennedy  i.  388 


v.  Miller 
Busk  V.  Davis 
Butler  V.  Breck 

r.  Butler 

V.  Carter 

V.  Haskell 

r.  Maples 

V.  Mulvihill 

V.  Murray 

V.  Palmer 

V.  Thompson 
Butricke  v.  Broadhurst 
Butter  &  Baker's  Case 
Butterfield  v.  Lathrop 
Ruttrick  v  Holden 
Butts  I'.  Wood 
Buxton,  E.r  parte 

V.  Rust 


i.  652 

i.  26,  ii.  266,  478 

i.  117 

i.  200 

i.466 

i.  463,  454,  465,  602 

1.  588 

i.  147 

i.  268,  2(i9 

i.  433 

ii.  603 

i.  128 

i.  824 

i.  15,  95 

i.  405 

i.  298,  300 

1.  459 

ii.  666,  671 


V.  The  North  Eastern  Railway 

Co.  ii.  91, 94 

Byass  v.  Gates  i.  464 

Bynum  v.  Frederick  i.  150 

Byrne  v.  Weeks  ii.  43 

Bywater  v.  Richardson  i.  527 

Bwlch  Mining  Co.'s  Case,  The  i.  330 

Bwlch-p-1'lwni  Lead  Mining  Co.    v. 
Baynes  i-  373 


c. 

Paoi 
Cabet );.  Harking  ii.  304 

Cadnian  r.  Horner  i.  826 

Cain  V.  Weston  i.  16 

Cairnes  v.  Bleecker  i.  693 

Calais  Steamboat  Co.,  The,  v.  Scud- 

der  i.  466 

V.  Van  Pelt  i.  406 

Calder  v.  Dobell  i.  627,  629,  639,  548,  675 ; 

ii.  618,  621 
Caldwell  i'.  Hart 

V.  Renfrew 

V.  Smith 

V.  Taggart 
Calkins  r.  Falk 

V.  Lang 

V.  Long 
Callis  V.  Bowthandcy 

V.  Tolson 
Callander  t".  Howard 
Callonel  v.  Briggs 
Calypso,  Tlie 
Cambrian      Railways 

Scheme 
Camden  v.  Anderson 
Camden  &    Amboy  R. 

Forsyth 
Camerat  v.  Goldsmith 
Cameron  v.  Clarke 
Cammell  v.  Sewell 
Camnieyeri'.  United  German  Ciiurches 

i.  375,  378 
Caniors  v.  Caniors 
Camp's  Appeal 
Camp  V.  The  Wardens 
Campbell  v.  City  of  Kenosha 


i.  246 

i.  88,  218 

i.  238 

i.  404 

ii.  567,  573 

i.  162 

i.  188,  190 

ii.  513,  514 

i.  100 

ii.  274 

ii.  312 

i.  284 

Company's 

i.  387 
i.  543 


R.    Co.    V. 


i.  334;  ii.  365,  451,  452 
i.  141 


Fleming 

V.  Hooper 

V.  Kctcham 

V.  Knapp 

I'.  MuUett 

V.  Penn.  Life  Ins.  Co. 

i;.  Race 

V.  Sewell 

V.  Stairt 

i;.  Walker 

V.  White 
Canada    Southern    Rail'  ay  Co 

Gebhard 
Canadian  Bank  v.  McCrea 
Canal  Nav.  Co.  v.  Pritehard 


ii  158 

i.  162 

i.  18,  24 

i.  269 


i.  150 

i.  7.'],  77 
i.  581 
i.  418,  420 


i.  147 

ii.  535 

i.  500 

i.  405 

i.  161 

i.  9, 17,  21 

ii.  40 

i.  164,469,404 

i.  240 

V. 

i.  387 

i.  il6 

i.  634 


Candee  v.  Tlie  Pennsylvania  R.R.Co.ii.  214 
Canden  v.  Hurford  i.  461 

Canfield  v.  Fairbanks  i.  140 

Cannan  v.  Bryce  i.  643 

Cape  v.  Adams  i.  201 

Cape  Breton  Co.,  In  re        i.  309,  310,  312 
Capers  v.  McKee  i.  161 

Capper's  Case  i.  128,  129,  349 

Caregan  v.  Richards  ii,  070 

Carey  v.  White  i.  262, 263 

Cargill  r.  Cargill  i.  187 

Cargo,  Ex  Argos,  Gaudet  v.  Brown 

i.  270 


i  i 


TABLE  OP  CASES  CITED. 


XXIX 


Paoi 

i.  269,  272, 

285 

i.  258 

i.  62 

i.  160,  24(i 

i,  98 

i.  411 


Cargo,  The,  ex  Hamburg, 

Cargo,  The,  ex  Sultan, 
Carleton  v.  Lovejoy 

V.  Hi     .'s 

V.  Siiinner 

i;.  The  People  

Carling,  Hespcler  &  Walsh's  Cases  i.  391 
Carlisle  r.  Trears  '   " 

V.  Wallace 
Carman  i'.  Meaburn 
Cam  V.  Brice 
Carnegie  i'.  Morrison 
Carney  v.  Gleissner 
Carpenter  v.  Carpenter 

V,  Dodge 

i;.  Farnsworth 

r.  Griffin 

V.  Mitciiell 
Carpmael  u.  Powis 
Carr  v.  Burke 

V.  Clough 

V.  Duval 

V.  Halliday 

V.  Ilinchcliffe 
,  Jackson 


I.' 

V.  Lancashire  &  Yorkshire 

Co. 
V.  Steamboat  Michigan 


i.  9 

i.  15,  93,  96 

i.  259 

i.  149 

ii.  G17 

i.  222 

i.  123, 132, 133 

i.  33 

i.  569, 601 

i.  16,  93 

i.  214 

i.  455 

i.  268 

i.  123,  131 

ii.  604 

i.  140,  146 

i.  626,  600 

627,670 

Ry. 

ii.  96 

ii.  214 


V.  The  London  &  N.  W.  Ry.  Co.  ii.  33 


Carroll  )•.  Blencoe 
Carroll's  Lessee  v,  Maydwell 
Carroll  County  v.  Smith 
Carringham  v.  Plunkett 
Carrington  v.  Comstock 

V.  Hoots 
Carrutliers  v.  Payne 

V.  Shedden 
Carson  v.  Murray 
Carstens  v.  llanselman 
Cartant  v.  Scliuyler 
Carter  v.  Breton 

V.  Carter 

V.  Eveleigh 

V.  Home 
Howard 
Peck 
Scargill 


V. 
V, 
V. 
V. 


i.  206 

ii.  266 

i.  420 

i.  33 

i.  8 

234 

256 

657 

190 

240 

i.  38 

ii.  272 

i.  369 

1.205 

i.  503 

i.  205 

ii.  193,  195 

i.  127 


II. 
ii. 

i. 

i. 

i. 


Toussaint  ii.  220, 256, 303,  332 

342,  443,  447,  460,  476,  491 

V.  Wlmllcy  i.  600 

V.  Worthington  i.  246 

Cartright  Admr.  v.  Cook  i.  29 

Cartwriglit  v.  Cartwright  i.  137 

Cary  i;.  Hotailing  i.  407 

V.  Pntton  i.  152,  102,  165 

Case  V.  Abeel  i.  464 

V.  Bank  i.  389,  395 

V.  Barber  i.  29 

V.  Beauregard  i.  600 

Casey  v.  Cavaroc  i.  107 

Cassaboglon  v.  Gibb  i.  646 

Cassidy  t:  Hall  i.  501 

Cnssius,  The  ii.  60 

Casson  v.  Roberts  ii.  S15 


Cassy    .  Patton 
Castellain  i-.  Thompson 
Castellan  l:  Hobson 
Castello's  Case 
Castle  V.  Beardsley 


Paoi 
i.  192 
i.  288 
i.  322,  323,  348 
i.  128 
ii.  674 


i;.  Sworder  ii.  404,  405,  400,  436,  450, 

471,  476 

V.  Warland  i.  617 

Castling  v.  Aubert  ii.  676 

Cates  i".  Woodson  i.  142 

Catlin  V.  Bell  i.  100 

Catling  V.  King    ii.  608,  619, 657, 660, 6tJ6 

V.  Skoulding  ii.  309 

Caton  I'.  Caton  ii.  687,  693,  666 

Catterali  v.  Hindle  i.  678 

Catts  V.  Phalcn  i.  134 

Caulkins  v.  Hellman  ii.  363,  435,  498, 600 

Cave  V.  Cave  ii.  245,  247 

V.  Hall  ii.  278 

V.  Hastings  ii.  598,  665 

V.  Lord  Allen  i.  452 

Cavendish  Bentinck  v.  Fenn     i.  310,  311 

Cecile,  The  i.  283 

Central  Bank  v.  Copeland  i.  406 

V.  Emj)ire  Sl'iie  Dressing  Co.     i.  433 

Central  Branch  Union  Pacitic  R.  R. 

V.  Smiin  i.  416 

Central  City  Savings  Bank  v.  Walker 

i.  600 

Central  Railroad  i'.  Combs  ii.  214 

Central  Railway  Co.  v.  Mills  i.  385 

Central  Hv.  Co.  of  Venezuela  i".  Kirsh 

i.  315, 316,  325,  320,  327,  333,  341,613, 

021 

Chalmer  i\  Bradley  i.  464 

Chamberlain  v.  Dow  ii.  276 

V.  Farr  ii.  602 

V.  Harrod  i.  292,  465 

V.  Smith  i.  99 

Cliamberliii  v.  Hugenot  Manuf.  Co.  i.  374 

V.  Tlie  Inhabitants  of  Dover      i.  626 

Chamberl^n  r.  Delarive  ii.  274,  278 

Chambers  v.  Hetty  i.  452 

V.  Minchin  i.  617 

Champion  v.  Bostwick  i.468,  499;  ii.  100 

i;.  (Griffith  ii.  534 

V.  Plummer  ii.  511,  51.3,530,  570,  571, 

572,  694,  696,  599,  602,  605,  606, 

009,  013,  015,  649 

V.  Rigby  i.  452 

Champney  v.  Blanchard  i.  43 

Chandler  v.  Hill  i.  116 

V.  Spencer  i.  234,  239 

V.  Sjjrague  i.  108 

Chandron  v.  iMagoe  i.  385 

Chanter  v.  Lees  ii.  523 

Chapin,  In  re  Will  of  1.  138 

r.  Laytin  i.  82 

Chaplin  r.  Rogers  ii    210,  287,  303,  320, 

326,  328,  329,  330,  339,  340,  342, 

378,  437,  438,  441,  474,  476,  491 

V.  Young  i.  308 

Chapman  v.  Biggs  i.  303 

V.  Briggs  i.  194 

V.  Chapman  L  200 


^1!'  ' 


I 


l'" 


XXX 


TABLE  OP  CASES  CITED. 


i 


Pack 

Chapman  v.  Forsyth  i.  GuO 

V.  Kellogg  i.  230 

V.  Mad  River  Ry.  Co.  i.  40ti 

V.  Morton  i.  125, 270,  271 ;  ii.  865,  451, 

452,  455,  41)4 

V.  Searle  ii.  502 

V.  Kheplierd  i.  352 

V.  Speller  i.  126 

V.  Steinmetz  ii.  276 

V.  Tuft8  i.  677 

Chapman  &  Barker's  Case  i.  3U0 

Chappel  i:  Allen  i.  803 

Chappell  V.  Allen  i.  505 

Chiipple  V.  Cooper  i.  110,  117,  HI) 

Charitable  Corporation  v.  Sutlon      i.  317 

Charles  i-.  Blackwell  i.  675 

Cliarlewood  i\  The  Duke  of  Bedford 

ii.  670,  6U8,  603 

Charlton  v.  Hay  i.  342 

Charter  v.  Beekett  ii.  575 

V.  Trevelyan  i.  (i07 

Chase  i'.  Curtis  i.  374 

i;.  Debolt  i.  6;]li 

ti.  Lowell  ii.  002 

V.  Merrimack  Bank  i.  409 

V.  Washburne  i.  27,  93,  96 

i.  630 

ii.  234 

i.  6 

i.  408 

i.  105 

ii.214 

i.  27 

i.  4(M) 

i.  056 

i.  446,  448 

ii.  608 

i.  617 

i.  237 


V.  Westmore 
Chater  v.  Beckett 
Cheang-Kec  i\  United  States 
Cheap  V.  Cramond 
Check  V.  Bellows 

I'.  The  Little  Miami  R.  R.  Co 
Chedworth,  Lord  v.  Edwards 
Cheek  v.  Watkins 
Cheescman  v.  Exall 
Cheetwurtli,  Lord ;;.  Edwards 
Cherry  v.  Ueniing 
Chertsey  Market,  In  re 
Cheshire  v.  Burlington 
Cheslyn  v.  Dalby  ii.  309 

Chester  v.  Dickerson  i.  494 

V.  Pierce  i.  158 

Chesterfield,  &c.  Colliery  Co.  v.  Black 

i.  308 
Chester  Glass  Co.  v.  Dewy  i.  297 

Chew  0.  Bank  of  Baltimore  i.  403 

Chicago  V.  The  People  i.  435 

Chicago  City  r.  liobbins  ii.  171 

Chicago  &  N.   W.   Railway  Co.  v. 

Church  ii.  187, 195 

V.  Montfort  ii.  179,  180,  187 

V.  The  People  ii.  179 

Chicago,  &c.  R.  R.  Co.,  The,  v.  Cole- 
man 1.  604 
Chichester  v.  Cobb  ii.  693 
Child  V.  Hardy  man  i.  167 
Chinery  i-.  Viall  i.  105 
Chinnock's  Case  i.  396 
Chinnock  v.  The  Marchioness  of  Ely 

ii.  658,  660 
Chisman  v.  Count  i.  17 

Chittenden  i-.  Hurlburt  ii.  636 

Chouteau  v.  Leech  ii.  214 

Christian  v.  Welch  i.  134 

Christmas  v.  Mitchell  i-  146 


Christofiferscn  v.  Hansen 
Chubb  V.  Stretch 

V.  Upton  i. 

Church  V.  Abell 

V.  Brown 

V.  Church 

V.  Jacques 

V.  Knox 

V.  Landers 

V.  The  Marine  Ins.  Co. 


Paoi 

i.  531 

i.  205 

391,  401,  402 

i.  584 

ii.  673 

i.  603 

i.  205 

i.  497 

i.  153, 164 

i.  292,  453, 

465,  602 

V.  The  Imperial  Gas  Light  &  Cuke 
Co.  i.  817 

Chusan,  The  i.  279,  282 

Cincinnati,  &c.  R.  R.  Co.,  The,  v.  Pon- 
tius ii.  214 
V.  Spratt                             ii.  164,  214 
City  V.  Lamson                   i.  395,  414,  418 
City  Bank  v.  Bangs  ii.  618 
I'.  Barrow  i.  107 
City  Discount  Co,  v.  McLean           i.  460 
City  of  Lexington  v.  Butler      i.  382,  388, 
407,  408,  412,  434,  439 
City  of  London  v.  Wood  i.  622 
City  of    Memphis   v.   The  Memphis 

Water  Co.  i.  428 

City  of  New  York,  In  the  i.  291 

City  of  Savannah  i;.  Kelly  i.  422 

City  of  St.  Louis  t;.  Shields       i.  425,  433 

ClaHIn  V.  Godfrey  i.  460 

t'.  Rosenburg  ii.  490 

Clairborne  County  i;.  Brooks     i.  408, 420 

Clancy  v.  Pigott  ii.  626 

Clark  V.  Alexander  i.  599 

V.  Bedford  i.  133 

V.  Bulwer  ii.  266 

V.  Crownshaw  i.  207 

V.  Fairchild  1.  12, 14 

V.  Fairfield  i.  18,  21 

V.  Gilbert  i.  602 

V.  Gotts  ,  i.  116 

V.  Graham  '  ii.  265 

V.  Hay  i.  244 

V.  Iowa  City  i.  396 

V.  Jack  i.  98,  99 

V.  Killian  i.  208 

V.  Mundal  ii.  278 

t>.  Mumford  ii.  264 

V.  Periam  i.  141 

r.  Perrier  i.  454 

V.  Pinney  i.  14 

V.  Smith  i.  14,  21 

V.  The  City  of  Davenport  i.  437 


V.  Tucker 

17.  Wright 

V.  United  States 
Clark,  The  Ella  A. 
Clarke  v.  Clark 

V.  Cobley 

V,  Commonwealth 

V.  Cuckfield  Union 

V,  Dickson 

t'.  Dunham 

V.  Hutchins 

V.  Marriott 


ii.  304,  305 

ii.  673,  683 

ii.  674 

i.  284,  286,  289 

i.  113 

i.  133, 184 

i.  412 

1.817,318,319 

i.  312,  330,  333.  334,  341 

i.  148 

ii.  463 

ii.  478 


TABLE  OP  CASES  CITED. 


XXXI 


Paos 

ii.  507,  «i43 

ii.  313 

ii.  6V2,  573,  587,  092. 

«02 

ii.  u'Jo 

i.  4St2 

i.  31 

ii.  ?58,  259,  260,  201,  2t)2, 

2U3,  264 

Clay  County  v.  McAlccr  i.  418 

Clayton's  Case  i.  444,  448,  440,  450 


Clarke  r.  Russell 
Clarkson  v.  Carter 
Clason  V.  Bailey 


V.  Merritt 
Clay  V.  Cottrell 
t;.  Huston 
V.  Yates 


Clayton  v.  Andrews 
ClefTK  I".  Ktlniondson 
Cleland's  Case 
Clement  v.  Mattison 

V.  Tasburgh 
Clements  o.  Hall 
Clerk  V.  Wright 
Cleveland  i'.  Cole 
Clifford  y.  Laton 
Clifton  I'.  Coekburn 
Climie  v.  Wood 
Clinan  v.  Couke 

Clinton  v.  Rowland 


ii.  217 

i.  351 

i.  10 

i.  1«H 

i.  320 

i.  502 

ii.  640,  (iTO 

i.  222 

i.  151,  160,  162 

i.  454 

ii.' 245,  247 

ii.  539,  542,  5t>9,  589, 

029,051,652 

i.  110 


Clinton  National  Bank  v.  Bright       i.  2.'35 

Cliquot's  Champagne  i.  587,  001 

Clive  V.  Clive  i.  344 

Clopton  V.  Matheny  i.  217 

Clough  I".  Burd  i.  til 7 

V.  Clough  i.  38,  42,  87.  90 

Clute  r.  Small  i.    00 

Clyde  V.  Hubbard  ii.  \M 

Clydesdale  Bank  v.  Paul  i.  338,  340 

C.  M.  Titus,  The  i.  209 
Coates's  Case,  /«  re  Limeliouse  Works 

Co.  i  9 

Coates  V.  Chaplin  ii.  4-53, 478,  484 

V.  Lewes  i.  567 
V.    The    United    States    Express 

Co.  ii.  214 

U.Wilson  LllO 

Cobb  V.  Abbot  ii.  100 

V.  Beeke  i.  5!»5 

V.  Goodhue  i.  308 

i\  Sawyer  i.  86 

Cobequid  Mar.   Ins.  Co.  i".  Barteaiix 

i.  272,  290 

Cocheco  Bank  c.  Haskell  i.  604 

Cochran  r.  Ketberg  i.  500 

Cochrane  v.  Moore  i.  47,  58 

Cochrane,  The  Lord  i.  258,  284 

Cocke  V.  Halsey  i.  412,  425 

Cockerell  v.  Cholmeley  i.  422,  459 

Coekran  v.  Irlain  i.  042,  050 

Codd  V.  Codd  i.  2(M) 

Coder  v.  Muling  i.  505 

Cody  V.  Hough  i.  461 

1).  Phelps  i.  240 

Coe  i\  Cayuga  Lake  R.  R.  Co.  i.  388 

Coffin  V.  Collins  i.  402 

Cogley  c.  Cushman  i.  132 

Coggs  V.  Bernard  i.  92,  104,  105 

Cohalan  v.  Monroe  i.  246 

Cohen  v.  Armstrong  i.  127 


Paoi 

Colien  V.  Gwynn  i.  403 

V.  The  Southern  Express  Co.    ii.  214 

Coie  I'.  Houston  i  29 

Coit  V.  The  Commercial  Ins.  Co.       i.  528 

Colbeck,  In  re  i.  468 

Colburn  V.  Averill  ii.  634 

Coldham  v.  Showier  ii.  023 

Cole,  In  re  Will  of  i.  138 

V.  Bishop  i.  334' 

V.  Cattingham  i.  127 

V.  Duffleld  ii.  526,  571 

V.  Dyer  i.  297,  520,  570 

V.  Gibbons  i.  454 

V.  Gibson  i.  454 

V.  Hebb  i.  100 

V.  La  Grange  i.  410 

V.  North- Western  Bank      i.  107,  642, 

(546 

V.  Robins  i.  138, 146,  147, 148 

V.  Saxby  i.  127 

Colegrave  v.  Upcot  ii.  600 

Coleman  v.  Gibson     ii.  336,  359,  360,  305 

V.  Railroad  Co.  i.  300 

V.  Riches       ii.  2,  3,  10,  16,  17,  18,  19, 

25,  31,  32, ;«,  36.  39,  42.  59 

V.  Upcot       ii.  510,  616,  563,  698,  («)0, 

615 
Coles  V.  Bristowe        i.  132,  322,  346,  348, 

351,  371,  372 
V.  Trecothick       i.  454,  459,  404,  465, 
660;  ii.  511,  503,  569,  684,  587, 
589,  594,  607,  629,  044,  066 
V.  Wright  i.  652 

Collet  0.  Robinson  i.  192 

Collector,  The,  v.  Dodswell  i.  698 

Collie's  Claim,  In  re  Barelli's  Tele- 
graph Co.  i.  603 
Collier  V.  Coales  i.  24 
Collinge  v,  Heywood                         i.  346 
Collins  V.  Foster                                   i  16 
I'.  Mitchell                                     i.  165 
I'.  Rudolph                                    i.  205 
V.  Stimson                                    ii.  315 
V.  Ihe  Bristol  &  Exeter  Railway 

Co.  ii.  82,  162 

V.  Wassell  i.  234 

CoUinson  v.  Patrick  i.  07 

Collum,  Kx  parte,  In  re  A  "  .tic  Bank- 


ing Corp. 
Colinan  r.  Sarrel 
Colt  V.  Las'nier 

V,  Woollaston 
Colvin  V.  Newberry 
Combes'  Case 
Combs  V.  Bateman 


i.  371 
i.  73 
i.  400 
i  315 
i.  274,  275 
i.  650 
ii.  270,  276,  277, 
278 
Commercial  Bank  of  Buffalo  v.  Kort- 

wright  i.  I'tO,  380,  393,  395 

Commercial  Bank  of  Lake  Erie  v. 

Norton  i.  001 

Commercial   Bank  of  Pa ,   Tiie,  v. 

Union  Bank  of  New  York  i.  595 

Commercial  Mutual  Marine  Ins.  Co. 

V.  Union  Mutual  Ins.  Co.  ii.  074 

Commins  i;.  Scott  ii.  010,  660,  666 


^^ai 


<mmmm 


xxxu 


TABLE  OF  CASES  CITED. 


fi.)4 


¥  !i; 


Ih 


Paq* 
Commissioners  of  Douglas  County  v. 
BoUes         i.  407,411, 421,422, 423, 432, 

43;J,  434 
Commissioners  of  Knox  County  v. 

Asiiinwall  i.  805,  427,  432 

Couiniifisioners  of  Johnson  County  v. 

January  i.  407,  432,  434 

V.  Tiiayer  i.  433 

CommiBsiontT'.'  of  Marion  County  v. 

Clark  i.  410,  421,  436,  440 

Comniunwealtli  v.  Allegheny  Co.     i.  600 
V.Clark  i.  10,92;  ii.  271 

i.  425 
i.  146 
i.  161 
i.  600 
i.  301 
ii.  222 
1.  632 
400,  410 


V.  Fowler 
V.  Hill 
V.  Manley 

i;.  Tlie  City  of  Pittsburg 
Comstock,  In  re 
Comteis  v.  Johnson 
Conard  v.  Insurance  Co. 
Concord  t;.  Robinson 
Condict  V.  The  Grand  Trunk  Ry.  Co. 

u.  133, 134 
Confederate  Note  Case  i.  461 

Conkey  v.  Milwaukee  &  St.  Paul  Rail- 

u.  182, 183 
i.  184 
i.  151 
Co.  V.  McCor- 

i.  205 

Co.  V.  Bailey  ii.  603 

i.  121 


way  Co. 
Conklin  v.  Thompson 
Condon  v.  Barr 
Connecticut  Life  Ins. 

niick 
Connecticut,  &c.  R.  R 
Connelly  Ads.  Hull 
Conner  v.  Henderson  i.  407 

Connors  v.  Connors  i.  216 

Conolan  v.  Leyland  i.  215 

Conover  v.  Mutual  Insurance  Co.     i.  375 
Conro  v.  Crane  i.  457 

V.  Port  Henry  Iron  Co.    i.  378 ;  ii.  278 
Conroe  v.  Birdsall  i.  118 

Considerant  v.  Brisbane  i.  528 

Continental  Bank  Corp. /«  re;  Cas- 

tello's  Case  i.  349 

Contract  Corporation,  In  re  i.  131 

Claim  of  Ebbw  Vale  Co.  i.  319 

Gooch's  Case  i.  132 

Conturier  v.  Hastie  ii.  677 

Converse  v.  Norwich,  &c.  N.  Y.  Trans. 

Co.  ii.  147 

Conybeare  i;.  The  New  Brunswick, 

&c.  Co.  i.  816,  326 

Cook  V.  Haine  i.  232 

V.  Bennett  i.  116 

Bradley  i.  116 

Deaton  i.  119,  127 

Ligon  i.  217 

Perhyn  Slate  Co.  i.  500 


V. 
V, 
V. 
V. 
V. 
V. 


Tuilis 
Wright 
Cooke,  y?.r  pnite 
V.  Cooke 
V.  Clay  worth 
V.  Eslielby 
V.  Lamotte 
V.  Millard 


i.  460,  624,  025 

ii.  517 

i.  460, 463,  674,  686 

i.  186.  200 

i.  138,  146,  147,  148 

i.  625 

i  455 

ii.  600 


V.  Wilson    i.  517,  634,  635,  620;  ii.  27 
Cookney's  Case  i.  357,  864,  365,  366 


Paqi 

Cookson  r.  The  Bank  of  England    i.  676 

V.  Toole  i.  247 

Cooley  V.  Norton  i.  604 

Coolidge  V.  Brig'  am  i.  334,  407 

Coombes  v.  Bet  jmont  ii.  262,  267 

Coombs  V.  Janvier  i.  148 

?'.  Tlie  Bristol  &  Exeter  Ry.  Co. 

ii.  306, 471,  477, 478, 485, 486, 492 

Coon  V.  Rigden  i.  228 

Coope  V.  Ayer  i.  468,  469 

Cooper  i\  AUport  i.  123 


V.  Bill 

ii.  471 

V.  KIston  ii.  230,  284, 

322, 

425,  437, 
493 

V.  Ham 

i. 

227,  228 

V.  Kane 

i. 

627,  560 

V.  Parker 

ii.  517 

V.  Smith        ii.  513,  630,  602, 

645,  646 

V.  Town  of  Thompson 

i.  388 

Cooper  Manufacturing  Co 

f.  Fergu- 

son 

i.  301 

Cope  V.  Clark 

i.  466 

Copeland  v.  Johnson  Manuf.  Co. 

i.  300 

V.  Merc.  Ins.  Co 

i.  502 

17.  North  Eastern  Ry.  ( 

Do. 

i.  328 

Copeman  v.  Gallant 

ii.  481 

Copenrath  c.  Kienby 

i.  148 

Copland  i-.  Merc.  Ins.  Co. 

i.  453, 459,  46i, 

Copper  Miners'  Co  ,  The, 

V.  Fox    i.  317, 

318,  320 

Coppin  V.  Gray  i.  202 

Coquand  v.  Wemse  i.  100 

Corbett  v.  Woodward  i.  297 

Cork  &  Bandon  11.  Co.  v.  Cazenove  i.  131 
Cork  &  Youghal  Railway,  In  re        i.  424 

V.  Paterson  i.  403 

Corlies  v.  Cumming  i.  536 

Cornawall  v.  Valentine  i.  193 

Cornelia  v.  Ellis  i.  152 

Cornell  v.  Hay  i.  342 

Cornett  v.  Williams  i.  461 

Corn  Exchange  v.  Babcock  i.  240 

Cornfoot  v.  Fowke  i.  316,  840,  609 

Corning  v  J'owler  i.  227 

Cornish  v.  Dews  i.  494 

Cornwall  v.  Hawkins  i.  127 

V.  Hoyt  i.  193,  206 

Corpe  V.  Overton  i.  123, 125 

Corporation  of  Ludlow  v.  Greenliouse 

i.  317 
Corpp  V.  Campbell  i.  284 

Cory  V.  Cory  i.  147,  200 

V.  GertL'hen  i.  133,  135 

Cosnahan  v.  Grice  i.  37 

Cothay  v.  Sydenham  i  456 

Cottam  r.  Eastern  Counties  Ry.  Co.  i.  869 

V.  Partridge  ii.  309 

Cotterell  v.  Apsey  ii.  257 

V.  Cuff  i.  24 

Cotterill  v.  Myrick  i.  174 

V.  Stevens  ii.  304 

Cotton,  Er  parte  ii.  247,  248 

V.  Lee  ii.  510,  616 

V.  New  Providence  i.  412 

Coughlin  V.  Knowles  i.  24 


'    ij  iii 
V  i    <    ' 


TABLE  OP  CASES  CITED. 


XXXUl 


Faoi 
Coughlin  V.  Kyan  i.  218,  280 

Countess  of  Dunmore  v.  Alexander  ii.  608 
Countess  (The)  of  Portland  v.Prodg- 

ers  i.  206 

County  V.  Rogers  i.  434 

County  Commissioners  u.  Chandler   i.  417 
County  Life  Assur.  ("o.,  In  re  i.  003 

County  of  Bates  i\  Winters       I.  382,  434 
County  of  Callaway  u.  Foster   i.  422,  420, 

434,  440 

County  of  Cass  v.  Gillett  i.  426,  430 

V.  Johnston  i.  433, 438,  430 

t;.  Shores  1.  440 

County  of  Clay  v.  Society  for  Savings 

i.428 
County  of  Daviess  v.  Dickenson       i.  4'.0, 

412,  413 
1).  Huidekopcr 
County  of  Henry  i>.  Nicolay 
County  of  Leavenworth   v. 


County  of  Macon  v.  Shores 


1.  433 

i.  420 

Barnes 

i.  433,  440 

i.  401,  412. 

418,  425 

County  of  Morgan  i>.  Allen        i.  391,  427 

County  of  Moultrie  v   Fairfield        i.  428 

V.   Uockingiiam    Savings    Bank 

i.  382,  406,  427,  432 
County  of  Ralls  t\  Douglass    i.  414,  424, 

425,  42(5 
County  of  Randolph  v.  Post  1.  433,  442 
County  of  Ray  v.  Vansycle  i.  397, 434 
County  of  Schuyler  v.  Thomas  i.  434 
County  of  Scotland  v.  Thomas  i.  420, 
431,  434,  439,  440, 
County    of   Tipton    v.    Locomotive 

Works  i.  428 

County  of  Warren  y.  Marcy     i.  382,  411, 

421,  432,  434 
Countv  of  Wilson  v.  National  Bank  i.  428 

i.  572 

i.  30 

i.  113 

ii.  417,  422,  473 

i.  86, 91 

i.627 

Bowler's 

i.  200 


V. 


Courcier  v.  Hitter 

Courtois  ('.  Carpenter 

Courtright  i».  Courtright 

Couston  ('.  Chapman 

Coutant  V.  Schuyler 

Couturier  v.  Ilastic 

Covington  &  L.  R.  Co. 
Heirs 

Coward  &  Adam's  Purchase,  In  re    i.  215 

Cowdrey  v.  Vandenburgh  i.  430 

Cowell  I'.  Gatcombe  i.  617 

I'.  Watts  i.  461 

Cowls  V.  Cowls  1.  113 

(^owly  IV  Nailor  i.  147 

Cox  V.  Bruce  ii.  13,  14 

V.  Godsalve  ii.  223 

V.  Hickman  i.  467-480,  482,  485,  480, 

488,  489,  491,  492,  493,  501,  507  ; 

ii.  338 

V.  Kitchin  i.  192 

V.  Midland  Railway  Co.  ii.  56 

V.  Miller  i  221 

Coxhead  v.  MuUis  i.  127 

Coxon  V.  The  Great  Western  Railway 

Co.  ii.  87,  88 

Coy  V.  Mason  i.  404 

VOL.  I.  c 


PAsa 

Cragin  v.  Lovell 

i.  412,  573 

Craig  V.  Craig 

i.  8tt 

V.  Kittredge 

i.  33 

Cramer  v.  Redford 

i.  150,  216 

Cramwell  v.  Cramwell 

i.  180 

Crane  v.  Gough 

i.24 

V.  Meginnis 

i.  200 

Crnnmer,  Kx  parte 

J.  138.  145 

Craven  v.  Ryder 

1.  632 ;  ii.  477 

Crawford  i:  Roberts 

i.  269 

V  Southern  Railroad  Assoc.       ii.  163 

V.  The  William  Penn 

i.  268 

Crawley's  Case,  In  re   Peruvian  Ry. 

Co. 

i.  855,  356 

Crawshay  v.  Collins 

i.  602 

V.  Muule 

i.  606 

V.  Thornton 

i.  326 

Creagh  v.  Blood 

i.  144 

Crease  v.  Babcock 

i.  392,  896 

Crcsinger  v.  The  Lessee  of  Walsh     i.  127 

V.  Welch 

i.  131 

Cridland  r.  Lord  De  Mauley 

i.  316 

Cripps  V.  Hartnoll 

ii.  577 

Crocker  v.  Higgins 

ii.  804 

Crockett  i'.  Lide 

i.  246 

Crofoot  V.  Bennett 

i.  27 

Croft  0.  Allison 

i.  610 

Crofts  V.  Middleton 

i.  205 

Cromwell  v.  Benjamin       ii. 

113,  155,  158 

V.  County  of  Sac  i.  388, 397,  425,  432 

Crookshanks  c.  Turner  i.  298 

Cropper  v.  Cook  i.  636 

Crosby  r.  Church  i  202 

V.  The  Delaware,  &c.  Canal  Co.  i.  100 

V.  Wadsworth    ii.  225,  220.  227,  '-'29 

233,  238,  251,  205 

Cross,  In  re  i.  459,  466 

V.  Eglin  i.  691 

f.  O'Donnell  ii.  363, 431,  432,  433,  502 


V.  Sprigg 
Crosse  v.  Kay 
Crossley  ».  Ham 

V.  Maycock 
Crouch  I,'.  London  &  North 

Ry.  Co. 
Croup  c.  Morton 
Crow  V.  Boyd 

V.  Oxford 
Crowe  V.  Ballard 

V.  Clay 
Crowther  v.  Rowlandson 
Cruse  V.  Paine 


i.  33 
i.  425 

i.  400 

ii.  600 

Western 

ii.  80,  157 

i.  150 

i.24 

i.  410,411 

i.  466 

i.  576 

i.  142 

i.  132,  322,  346,  849,  372, 

.373 

Cubborlcy  v.  Scott  i.  228 

Cubhidge  w.  Boatwright  i.  460 

Cud  V.  Rutter  ii.  314 

Cuddee  v.  Rutter  ii.  813,  814 

Cudlipn.  Rundle  i.  9 

Cuff  V.  Penn        ii.  .303,  500,  626,  627,  6.30, 
631,  632,  633,  634,  636, 636,637, 638, 

639,  648 

Cullen  I'.  Duke  of  Queensbury         i.  541 

V.  Thompson  i.  816 

V.  Thompson's  Trustees    i.  599,  612, 

618 


ii 


hi '   h! 


XXXIV 


TABLE   OF  CASES  CITED. 


Paob 
i.  11)2 
ii.  245,  247,  248 
i.  a»2, 883 
I'.  Slicrmnn    i.  2*.>9, 
a(X),  303,  806 
Cumberland  Valley  lly.  v.  Baub      ii.  GOIJ 


Culley  V.  Cliarman 
CuUwick  V.  Swindell 
Culpepper  v.  Astin 
Cumberland  Coal  Co, 


Cuinln((  V.  Brown 
Cuniniing  v.  Uoebuck 
Cunmiings  v.  Arnold 

V.  Cuinmings 

V.  Dennett 
Cunliffe  v.  Harrison 
CunninKliani  o.  Ashbrook 

V.  Pell 
Curlewis  v.  Clark 
Curran  v,  Arkansas 

V.  State  of  Arkansas 
Currie's  Case 
Currie,  Ex  parte 

V.  Anderson 

Currier  v.  Green 
Curry  v.  Fowler 

V.  Woodward 
Curtis's  Case 
Curtis  V.  Bank 

V.  Harlow 

V.  Innerarity 

V.  Leavitt 

r.  Patton 

V.  Tugh 


i.  666 

ii.  624 

ii.  316,  643 

i.  140 

ii.  560,  662 

ii.  320,  412 

i.  16 

i.  208 

ii.  412 

i.  207 

i.  403,  400 

i.  3ltl 

i.  337 

u.  404,  412,  453,  462. 

471,  477,  401 

i.  406 

i.  601 

i.  3!)2 

i.  128,  840,  350 

i.  77 

i.  302 

i.  027 

i.  433 

i.  120 

ii.  308,  370,  371,  397,  412, 

402 

I'.  Williamson  i.  548,  502 

Cusack  V.  Uobinson  ii.  324,  336,  370,  372, 
373,  389,  400,  408,  409,  410,  411,  410, 
419,  426,  426,  431,  432,  433,  434,  435, 
443,  446,  466,  468,  400,  462,  470,  474, 
477,    478,  484,  486,  486,  491,  493,  497, 

498.  499 

Custer,  Tlie  i.  281 

Cutler  V.  Asiiland  1.  601 

V.  Board  of  Inprovisors  i.  418 

V.  Boyd  Ji;  40 

V.  How  _  ••  31 

V.  Maker  i.  193 

Cutter  V.  Powell  ii-  B23 

V.  Winsor  i-  406 

Cutts  V.  Guild  i.  430 


Da  Costa  v.  Villa  Bcal  i.  106 

Daglish,  Ex  parte  ;  In  re  Wilde      ii.  246, 
^  246 

Dailey  i-.  The  Singer  Manuf.  Co.      i  240 
Dakin  v.  Oxley  i.  276 

Dalby  I'.  The  India  &  London  Life 

Ass.  Co.-  i.  667 

Dale  V.  Humphrey  i.  526,  627 

V.  Robinson  i.  206,  241 

Dale  &  Co.  Fx  parte  i.  448,  460 

Dallas  V.  Holiingsworth  i  126 

Dallas  Countv  v.  MeKenzie  i.  418 

Dalton  V.  Gibb  i.  119,  121,  127 

V.  Midland  Railway  Co.  i.  403 


Dalzell  V.  Tyrer 
Damon  v.  Deeves 

V.  Osborne 
Damper  i\  Symms 
Dana  v.  Hancock 


PAei 

ii.Ol 

i.  247 

ii.  286,  502 

i.  320 

ii.  643 


The  Bank  of  the  United  States 

i.  820 
Dando  v.  Foulds  i  98 

Dane  v.  Viscountess  Kirkwall  i.  138,  139, 

141,  143,  192 

Daniel  r.  Adams  i.  486 

t;.  Mitchell  i.  316 

V.  Smith  i.  85,  87,  88 

Daniell  v.   The  Official  Manager  of 

the  Hoyal  British  Bank  i.  830 

"  i.  673 


Daniels  v.  Burnham 

ti.  Daniels 
Danner  v.  Berthold 
Darby  i-.  Boucher 

V.  Cubanne' 

V.  Callaghan 
D'Arcy   v.  'iamar,  &c. 


i  201 
i.  193 
i.  197 
i.  148 
i.  214 

Railway  Co. 

376,  376,  599,  603 
i.  290 


Darham,  In  re 

Darling  v.  Boston  &  Worcester  R.  R. 

ii.  100,  108,  110,  200 
V.  McKenney  ii.  207 

Darlington   and   Stockton    Banking 


Co.,  Ex  parte,  The 
Darren  «.  White 
Daubigny  v.  Duval 
Daun  V.  Spurrier 
Dpvenport  v.  Mason 
Davey  v.  Chamberlain 

V.  Reed 

V.  Shannon 
Davidson  r.  Donaldson 

V,  Lanier 

V.  McCandish 

V.  Robertson 

V.  Stanley 

V.  Tulloch 

V.  Wood 
Davies  v.  Turton 
Daviess  County  v.  Dickenson 


Davis,  Ex  parte 
V.  A  New  Brig 
V.  Bank  of  England 
V.  Child 
D.  Crane 
V.  Culver 
V.  Davis 
»;.  Eastman 
V.  Edgar 
V.  ~" 


i.  479,  491 
i.  140 

106,  642,  660 

1.504 

ii.  265 

ii.gi 

i.  400 

ii.  673 

i.  579 

i.  301 

i.  237 

i.  616 

ii.  27 

308,  613,  618 

i.  192 

i.  110 

i.  410, 

412,  413 

i.  886 

i.  279 

i.  369,  403 

i.  279 

ii.  43 

i.  142 

i.  206 

ii.  803,  502 

i.643 


First  National  Bank  of  Chey- 


enne 
V.  James 
V.  McArthur 
V.  Moore 
V.  Ney 

I'.  Old  Colony  Railroad 
V.  Patrick 
V.  Ritchie 
V.  Shields 


1.240 

632 ;  ii.  481 

i.  6.S6, 541 

ii.  803,  602 

i.  77 

i.  424 

i.  500, 501 

i  244 

ii.  605,  616, 624 


TABLE  OP   CASES   CITED. 


XXXV 


Davis  V.  Simpson 

V.  Society  of  Essex 

V.  Stevens 

V.  Street 

V.  Tliomas 
Daroue  v.  Fanning 


Paoi 

i.  465 

i.  379 

i.  87y,  3»7 

i.  '21 

i.  98 

i.  299,  453,  454,  459, 

405,  502 

Dawes  v.  Peck  ii.  326,  869,  449,  4«1,  482, 

032 
Dawson  v.  Osborn  i.  2G 

l)awson  County  v.  McNamar  i.  417 

Day  r.  liiirnliani  '  i.  154 

r.  Uidlcy  ii.  163 

Dayton  i-.  Trull  ii.  278 

(,•.  Walsh  i.  228 

Dayton,  &c.  Turnpike  Co.  v.  Coy    ii.  tj03 


Dean  v.  Allalcy 
V.  Brantliwaite 
t'.  Hail 
V.  Hogg 


ii.  247,  249 

ii.  91 

i.  .388 

240 

200 


i.  274;ii. 

V.  l{lclimond  i. 

Dean  ami  Cliapter  of  Rochester,  The, 

V.  I'ierce  i.  .320 

Deanc  r.  Armis  i.  110 

V.  Hodge  i.  2'.«7 

Dearborn  v.  Cross  ii.  316 

V.  Dearborn  i.  118 

Deare  i\  Souttcn  i.  195 

De  IK'il  y.  Thompson  ii.  C44 

Debenham  v.  Mellon  i.  152,  153,  166 

De  Blaquicre  v.  De  Blaquiere  i.  200 

De  IJouchot  V.  Goldsmid    i.  105,  106,  042 
De  Buascl.e  v.  Alt  i.  502,  674,  607 

De  Caters  v.  Le  Hoy  de  Chainont      i.  405 
Deer  Isle  i'.  Katon  i.  193 

Deerley  v.  The  Duchess  of  Mazarine 

i.  206 
Dee  Roo  v.  Foster  i.  13.3,  134 

D'Eyncourt  v.  Gregory  ii.  214,  245 

Deeze,  Ex  parte  i.  105,  539 

De  Forest  v.  Fullon  Insurance  Co.   i.  057 
Deg  I'.  Deg  i.  450 

De  Gaillon  v.  L'Aigle  i  507,  517 

De  Gendre  v.  Kent  i.  344 

Do  Grave    v.   The   Mayor,    &c.    of 

Monmouth  i.  317 

De  Greuchy  (\  Wills  i.  215 

Dehority  v.  Paxson  ii.  503 

Delafleld  v.  State  i.  685 

Delamc'ter's  Est.  i  82 

De  Lane  y.  Moore  i.  208 

Delano  i-.  Blake  i.  l-'.) 

Delaware  Co.  r.  McDowell  i.  244 

Delaware,  The  ii.  64,  58 

Delhasse,  Er  parte  i.  473,  484,  501 

Delri<;ks  c.  Ford  i.  530 

Demainbray  i'.  Metcalfe  i.  105 

Denn  c  Diamond  •    i.  1 1 

V.  McKnight  i.  405 

V.  Wright  i.  4(i5 

Dennett  v.  Dennett  i.  142 

Dennis  r.  Clark  i.  113 

Dennison  v.  Goehring  i.  82 

Denny  v.  Cabot  i.  14, 101,  488 

f.  Williams  ii.  495,  602 


Dent  V.  Bennett 
V.  Nickalls 
Dent's  (/'ase 
Dent's  &  Forbes's  Case 


Paoi 

i.  65,  4.)2 

1.323 

i.  10 
i.343 


Denton  v.  Great  Northern  Railway 

Co.  i.  340 

Denton  Colliery  Co.,  In  re,  Ex  parte 

Shaw  i.  10 

Deposit  Life  Assur.  Co.  v.  Ayscough 

i  330,  3:J3,  373 
Depree  y.  Bedborough  ii.  316 

Derociier  v.  Continental  Mills  i.  126 

Descadilles  v.  Harris  i.  208 

Descelles  i'.  Kadinus  i.  166,  187 

Deslandes  v.  Gregory  i.  629,  630 

Di'8|)atch  Line  of  Packets  r.  Bellamy 

Manufacturing  Co.  i.  377,  626 

De  Symons  v.  Minchwick  ii.  314 

Detroit  v.  Dean  i.  302,  381,  418 

Detroit  &  Bay  City  Railway  Co.  v. 

McKenzie  ii.  163,  214 

Detroit,  &c.  R.  R.  Co.  v.  Forbes      ii.  548, 

666 
Dcvaux  V.  Carnally  i.  125 

De  Vignler  v.  Swanson  i.  629 

Dew  ,:  Clark  i.  1.36,  137 

Dewell  ».  Moxon  ii.  11 

l)(;wees  v.  Dewees  i.  200 

De  Wolf  V.  Rabatid    ii.  548,  568,  673,  578 
Dey  i:  Insurance  Co.  i.  499 

Dexheimer  v.  Gautier        i.  43,  45,  48,  49, 
60,  61,  55,  59,  03,  04,  65,  71 


Dexter  v.  Hall 


i.  1.39 


Diamond  i:  Lawrence  County  i.  383,  385 
Dickcn  v.  Dicken 
Dickens  v.  Dickens 
Dickenson  v.  Bli^set 
Dickerschild  i'.  Exhange  Bank 
Dickinson  v.  Dickinson 

V.  Dodds 

V.  Valpy  i. 

Dickson's  Executor  v.  Thomas 
Digby,  Er  purte 
Diggle  V.  Tlie  London,  &c.    Ry. 


i.  186 
i.  194 
i.  138,  146 
i.  38 
ii.  592 
ii.  604 

500,500 
i.  496 
i.  468 

Co. 
i.  318 
i.  132 
i.  100 
i.  2(5 
i.  375 

201,  202 


Dill  V.  Bowen 
Dillinger's  Appeal 
Dillingham  r.  Smith 
Dillon  I'.  Barnard 

V.  Grace  i 

V.  The  New  York  &  Erie  H.  H. 

ii.  123,  136 
Dilzer  v.  Beethoven  Building  Assoc. 

i.  237 
Dimes  v.  Grand  Junction  Canal  Co. 

i.  622 
Dimpfell  v,  Ohio  &  Mississippi  Ry, 

Co.  i.  300 

Dinkwater  v.  Goodwin  i.  29 

Diplo(!k  V  Blackburn  i.  608 

Directors,  &c.  of  Central  Ry.  Co.  v. 
•'     Kisch  i.  013 

Dirst  V.  Morris  ii.  168 

Ditchburn  »».  Fearn  i.  144 

Dittmar  v.  Norman  i.  101 


XXXVl 


TABLE  OP  CASES  CITED. 


P*am 

Divcrgcy  i-.  Jolinsnn 

i.27 

]Jix  V.  InsurHiice  Co. 

i.  499 

Dixon,  A'.r  parte 

i 

674,  595,  690 

V.  MaUlwin 

ii.  454 

V.  Cooper 

i.584 

V.  Uailroad  Co. 

ii.  5U 

V.  The  Hiclimond,  &c.  R.  H.  Co.  ii.  101 

V.  Yiitea         ii.  418, 

420 

4-J5,  488,  492 

Dixon  County  c.  Field 

i. 

410,411,412, 

413,  415,  420,  421 

Dobell  V.  Ilutcliinson 

ii. 

509,  048,  649, 
651,  655,  066 

V.  Stevens 

i.  327 

Dodds  V.  Hills 

i.  327 

Dodge  V.  Knowles 

i.  207,  217 

I'.  Tlie  Union  Maritime  Ins.  Co.  i.  261 

Dodgson's  Case 

i 

3:30,  331,  b32 

Dodsley  v.  Varley     ii. 

219, 

350,  359,  450, 
455,  476,  491 

Dodson  V.  Simpson 

i.  405 

V.  Wentworth 

ii.  468 

Doe  I'.  Courtenay 

ii.  634 

V.  Forwood 

ii.  034 

V.  Martin 

i.  609,  010 

t>.  I'oole 

ii.  634 

V.  Walters 

i.  024 

Doggett  V.  Brown 

i.  90 

Dole  IK  Lincoln 

i.  33,  38,  62 

I'.  Stimpson 

ii.  485,  502 

Dolin  V.  Hubbard 

i.  240 

Dolling  i;.  Kvans 

ii.  008 

])onald  V.  Suckling 

i 

104,  105,  107 

Donaldson  r.  Gillot 

i.  328 

Donegal's,  Lord,  Case 

i.  145 

Donell  V.  Dow 

ii.  002 

Doner  v.  Stanffer 

i.  497 

Donnally  v.  Ryan 

i.  479,  492 

Donnellan  v.  Reed 

ii.  598 

Donnison  v.  The  People's  Cafd  Co.  ii.  619 

Doolan  i-.  Midland  liy. 

Co. 

i.  274 

Doolin  V.  Ward 

1.605 

Dorr  V.  Munsill 

i.  147 

Dorsctt  V.  Harding 

i.  330 

Dorsey  v.  Pack  wood 

ii.  614 

Doss  I'.  Peterson 

i.  241 

Doty  I'.  Hubbard 

i.  138 

iJ.  Wilder 

ii.  581,  028 

V.  Wilson 

i.  57,  73 

Doubleday  r.  Muskett 

i  541 

Dougan's  Case 

i.  354 

Dougherty  c.  Creary 

i.  506 

V.  Sprinkle 

i.  244 

Douglas  v.  Douglas 

i.  33,  47 

V.  Moody 

i.  293 

Douglass  i:  County  of  Pike 

i.  414,  420 

V.  Howland 

ii.  573,  623 

V.  McAllister 

i.  31 

V.  Reynolds 

ii.  673 

1".  Spears 

ii.  602 

Dow  V.  Whetten 

i.  528 

V.  Wortlien 

i.  24  ;  ii.  308 

Dowbiggon  v.  HarriBon 

1.461 

Dowdle  i;.  Camp 

i.24 

Dow  ell  i\  Dew 

i.  206,  694 

Dowling  V.  McKenny 

i.92 

Paoi 

Downer  v.  Sinclair  i.  20 

Downes  i-.  Grazcbrook  i.  460 

t;.  Sliip  i.  833 

Downing  i-.  O'Brian  i.  238 

v.  Mt.  Washington  Road  Co.  i.  424 
Downnian  v.  Williams  i.  535 ;  ii.  27 

Dows  I'.  Greene  ii.  4.35 

Dowse,  The  i.  286 

Doyle  V.  DoyJe  i.  200 

Dracchi  i>.  Anglo  E.  N.  Co.  ii.  385 

Drake  v.  Mitchell  ii.  208 

V.  Ramsey  i.  127 

V.  Shorter  i.  552 

Drakely  v.  Gregg  i.  627 

Draper  i'.  Pattina  ii.  692 

V  Snow  ii.  684 
V.  Springport  i.  422 

Dreher  v.  Insurance  Co.  i.  499 

Drennen  c  Lomlon  Assurance  Co.    i.  499 
Dresser  v.  Dresser  i.  88 

Dresser  Manuf.  Co.  v.  Waterston       i.  98 
Drew  V.  Drew  i.  192 

V.  Hagerty  i.  52 

V.  Nunn  i.  14.3,  190 

Drink  water  c.  Goodwin  i  050 

Driscoll  c.  Bromley  i.  606 

Droege  v.  Suart,  The  Karnak  i.  286 

Dronfleld  Silkstone  Coal  Vu.,  In  re  i.  821 
Druid,  The  ii.  48 

Druiff  V.  Parker  i.  422 

Drunimond's  Case  i.  32,  347 

Drummond  v.  Prestman  ii.  673 

Drumock  v.  Drumock  i  200 

Drury  v.  Cross  i  295,  297,  303,  305 

V.  Drury        i.  123,  124,  126.  134,  136 
V.  Smith  i.  77,  87,  89,  90 

Dublin  &  Wicklow  Ry.  Co.  v.  Black 

i.  Vn,  373 
Dubois  V.  Delaware  &  Hudson  Canal 

Co.  i.  14,  21 

V  Hole  i.  200 
V.  Jackson  i.  149 

Dubose  V.  Wheddon  i.  118 

Dubost,  Ex  parte  i.  73 

Ducat  V.  Chicago  i.  301 

Duchess  of  Kingston's  Case      i.  195,  355 
Duckworth,  Jn  re  i.  836 

Ducland  v.  Housseau  i  47,  62,  82 

Duclos  V.  Ryiand  i.  641 

Dudley,  Lord  v.  Lord  Warde    ii.  245,  247 
Duti;  In  the  Goods  of  ii.  664 

V.  Budd  i.  680 

Duffleld  V.  Elwes  i.  33,  40,  43,  86 

Duke  of  Beaufort  v.  Bates  ii.  246 

V.  Neeld  i.  486 

Duke  of  Leeds  v.  Earl  Amlierst        i.  607 
Duke  of  Northumberland  i>.  Aylesford 

i.  128 
Dumas,  Ft  parte 
Dumerque  v.  Rumsey 
Duncan  v.  Baird 

V.  Beeson 

V.  Benson 

V.  Duncan 

V.  Hill 


i.  446;  ii.  221,481 
ii.  262 
ii.  276 
i.  844 
i.  258,  276,  278 
i.  199 

.  323,  344,  346,  682 


TABLE  OF  CASES  CITED. 


XXXVU 


Pacm 


Duncan  v.  Jaudon 

i.  4U5 

V.  Laudon 

i.  600 

V.  Scott 

i.  a»7 

V.  Self 

i.47 

V.  Sulfa  Admr's 

1.66 

V.   lioSL'llo 

i.  160,  216 

Duncarry  v.  (Jill 

1.606 

Duiicoiiib  V.  liy.  Co. 

i.  21)7 

Dunuroft  v.  Alhrccht 

ii.  221 

Duiicuft  V.  Albrt'cht 

ii.  680 

Dunhum  v.  liy.  Cn. 

i.  376 

Dunlop  V.  IligKlns  i.  352, 

308 ;  ii.  o98,i)6;i 

V.  Lambert 

ii.  483 

Dunmore,  Countess  of,  v 

Alexander 

ii.  598 

Dunn  V.  Pickard 

i.  243,  244 

V.  Thornton 

i.  33 

Dunnage  v.  White 

1.147 

Dunne  o.  English  i.  312, 502, 607, 621. 622 ; 

ii  230 

Dunseth  u.  Wade 

ii.  101 

Dupont  V.  Vance 

i.  272 

Duppa  0.  Mayo 

ii.  230 

Duranil  c.  Tiiouron 

i.  6.57 

Durant  r.  Iowa  County 

i.  383,  434 

V.  Rogers 

i.  404 

V.  Titley 

i.  108 

Durantss  v.  Hart 

i.  276 

Durrant  i'.  Uicketts 

i.  102 

Duryca  v,  Burt 

i.  605 

l)u8enbury  v.  Pallia 

i.  630 

Dutcliess  Collar  Manuf.  Co.  v.  Davis 

i.  401 

Dutton  V.  Marsh 

i.  623 

V.  Morrison 

i.497 

V.  Solomonson       i.  7 

,  17,  21 ;  ii.  314. 

326,  440,  487 

Duvall  V.  Craig 

i.  601 

Dweily  V.  Dwelly 

i.  222 

Dwyer  v.  Dwyer 

i.  188 

Dyce  Sombre,  He 

i.  144 

Dyer,  In  re 

ii.  692 

V.  East 

i.  168 

V.  Libby 

ii.  435 

r,  Paterson 

i.  560 

V.  Pearson 

i.  616 

V.  Snow 

i.  208 

Dykers  v.  Townsend 

ii.  5!)5 

Dykes  v.  Blake 

i.  125 

Dyster,  Ex  parte 

i.  502 

E. 


Eadie  v.  Slimnion  i.  406 

Eads ».  The  Steamboat  H.  D.  Bacon  i.  290 
Eager  v.  Oawford  i.  601 

Earl  of  Bath  v.  Tlie  Earl  of  Brad- 
ford i.  143 
Earl  of  Buckinghamshire  v.  Drury  i.  134 
Earl  of  Falmouth  v.  Thomas  ii.  234.  630 
Earl  of  Oxford's  Case  i.  603 
Earle  v.  Botsford   i.  34,  35,  37,  40,  44,  40, 

88,91 
V.  Olirer  i.  241 


Earle  v.  Peale 

Eason  v.  Cherry 

East  Anglian   Railways  i 

Counties  liaiiway 
East  India  C'o.  i;.  llensley 
V.  Vincent 


Pasi 

i.  107,  urn 

i.  bWi 
Eastern 

i.  424 
i.  486 ;  ii.  40 

i.  504 


East  London  Waterworks  Co..  The. 


V.  BaUey 
East  Oakland  v.  Skinner 
East   Pant    du  United   Lead 

Merryweatlier 
East  St.  Louis  ".  Zebley 
East  Tennessee  &  Ga.  U.  R.  i' 


i.  317,  320 

L412 
Co.  V. 

1.308 
i.  413,  410 
Nelson 

ii.  193 
Co.  V. 
ii.  103,  104 

i.  403 


East  Tennessee  &  Va.  R.  R. 

Rogers 
Easterbrook  v.  Barker 
Eastern  Counties  Railway  v.  Ilawkes 

i.  390 
Eastland  t;.  Burchell    i. 
Eastman  v.  Bank 

V.  Brown 

V.  Savings  Bank 
Easton  v.  Worthington 
Eastwood  V.  Kenyon 
Eaton  V.  Eaton 

V.  Hill 

V.  Smith, 
Ebbett's  Case 

Ebbw  Vale  Co..  Claim  of,  In  re  Con- 
tract Corporation  i.  319 
Eckerley  v.  McGhee  i.  247 
Eckerstein  v.  Frank  i.  1.33 
Eckert  v.  lieuter  i.  161 
Edan  V.  Dudfleld  ii.  320,  361,  352.  359, 
394,  450,  452,  456,  401,  494 


158, 163, 180, 189 

i.  77 

ii.  181 

i.  07,  73 

i.  646 

ii.  577 

i.  139, 140,  146 

i.  i;« 

i.  660 

i.  128,  131 


Eddy,  The 

i.  035 

Edelen  v.  Gough 

ii.  681 

Edgar  v.  Boies 

i.  14,  31 

Edgerley  v.  Emerson 

i.  375 

V.  Shaw 

i.  130 

Edgerton  v.  Hodge 

ii.  310 

V.  Wolf 

i.  123 

Edie  V.  East  India  Co. 

i.628 

Edmond,  The 

i.  255 

Edmonson  v.  McLcnd 

i.  107 

Edmunds  i>.  liusiiell  &  Jones 

i.  502 

V.  Goater 

ii.  .".OO 

V.  Groves 

i.  4J(J 

Edmundson  v.  Thompson 

i.  o<X) 

Edson  V.  llayden                        i. 

160,216 

Edwanis  Appeal 

i.  98 

Edwards  i*.  Astley 

ii.  592 

I'.  Baugh 

ii.  517 

?'.  Brown 

i.  .308 

V.  Cottrell 

i.  29 

t;.  Davis                               i. 

116.  206 

V.  Elliott 

i.  287 

V.  Grand  Trunk  Railway 

ii.  500 

V.  Havcll                      i.  263, 

265,  267 

V.  Higging 

i.  121 

V.  Jevons 

ii  570 

i;.  Jones            i.  33,  34.  40,  43,  51,  87 

V.  Railway  Co. 

i.  16 

V.  Smith 

i.  549 

ii   » 


':•    (If 


:;|         H 


m"-A 


*!  !  '  '   ; 


\IU 


xxxvm 

TABLE 

OP  C 

Kdwarilfi  v.  Stovcna 

i.  '22-Z 

V.  TowcIb 

I.  KW 

Edwin,  The 

il.  60 

KgluTt  i:  Hiitter 

i.  017 

KgiTtDi)  V.  C'Hrr 

1.67, 

71.82 

«•.  KtfiTton 

i.  88 

«;.  Miitiicwn  ii.  50«-r)27,  5:i4-r)39.  64'2, 

C4;{,  644,  546,  648,  641»,  663,  664, 

656,  6t)l,  60;).  67(»,  671,  572,  673. 

6H1,  682,  68;(,  6(»4,  61)0,  (M12 

ERcrton,  Sir.Iolin  v.  Kurl  of  Derby  i.  022 

Eicla-llitTHiT  I'.  Hiirintz  I.  406 

Eicliiilz  (■   iiannibti'r  i.  126 

Eiler  /•.  riiill  i.  106 

Klaioi  V.  Kliiiul  i.  4UU 

Elbiiiger  Action-GcgselUchaft  v.  Clayc 

i.  6iy,  614,  (120 
Eldridtro  v.  Hill 
V.  I'liillipson 
El«.>d()na,  'V\w  Itrig 
Elcy  r.  I'ositivo  Assur. 
Eliason  r.  Ili'ii8liaw 
Eliza  Cornish,  Tiie 
Eliza  VVilniot'8  Case 
Elkinirton's  Caac  i 


I.  686 

i.  600 

i.  208 

ii.  6i:5 

ii.  004 

277,  283 

i.  200 

355,  357,  358,  304 


Co 


i. 


Elkins  c.  Camdim  &  Atl.  U.  U.  Co.  i.  2'JO 


Ella  A.  Clark,  The 
Eilars  V.  Mosi^bunger 
Elliot  V.  Abbot 
Elliott  c.  Bentley 

V.  Bisiiop 

V.  (Jit'se 

V.  Ih'ginbotham 

V.  Incc 

V.  Pybu8 

V.  Sat'ket 


i.  284,  285,  28'.) 
i.  146 
i.  001 
i.  150,  210 
ii.  246 
ii.  681 
ii.  320 
i.  189,  141 


V. 
V. 
V. 
V. 


ii.  256,  341,  448,  491 
i.  422 

V.  Thomas    ii.  217,  218,  289,302,  834. 

344,  305,  387,  404,  437,  443, 445. 

449,  456 

Ellis  f.  Boston.  H.  &  E.  Ry.  Co.       i.  297 

Dcadman's  Ili'irs  ii.  581 

Essex  Merrimack  Bridge  Co.  i.  401 

Hunt  ii.  454,  487 

Schniaeck  i.  600 

i;.  Secor  i.  00,  87 

V.  Smith  ii.  684,  585 

Ellison  f.  Anderson  i.  232 

V.  Ellison  i.  07,  73,  82 

T^lmore  v.  Kingscote  ii.  453,  484,  513,530, 

683.  024 

Elmore  v.  Stone  ii.  250,  324, 326,  328,  329, 

333,  334,  3.36,  339,  348,  391,  393,  405, 

438,  439,  440,  441,  450,  455,  470,  491 

Elmoro  v.  Tlie  Nnugatuck  Ii.  H.  ?o. 

ii.  141,  142,  144,  146,  155,  195,  202,  205, 

208 
Elphinstone  v.  Bedreechund  i.  020 


Elpis,  The 
Elwell  I'.  Shaw 
Elwes  V.  Maw 
Ely  V.  Ormsby 
Emanuel  v.  Dane 
Emeriuk  v.  Sanders 
Emerson,  In  Goods  of 
V.  Seuter 


>.  282,  283,  285 

i.  601 

ii.  247,  240 

ii.  304,  305,  502 

i.  16 

ii.  304 

ii.  591,  693 

i.  404 


Pagi 

Emerson  v.  Slater  ii.  048 

Emory  v.  Enury  i.  161, 160,168, 100,  171, 

173,  174,  176,  170,  177,  179,  180,  187, 

188 
i:  Horsey  i.  291 

Emily  Soudor,  The  i.  282 

Emma   Silver  Mining  Co.  v.  Grant 

i.  3 12,  .308 
Emma    Silver  Mining   Co.,  The,  v. 
Lewis 


i.  .308 

i.  352 

ii.  220,227.231,321. 

511.529,  594 

ii.  033 

i.  102,  180 

i.  120 

401 


Ennnorson's  Case 
Eminerson  v.  Ileolis 

Emmet  v,  Dowlnirst 

Enimott  I'.  Norton 

Emmons  r.  Murray  i. 

Emos  r.  .lames  i, 

Empire  City   Bank,  Matter  of   the 

i.  890,  403 
Empress  Engineering  Co.,  In  re  i.  025 
Englisii  r.  The  Teople  i.  416 

I'.  I'orter  i.  138 

En>;ll8li  anil  Irinli  Church  and  Uni- 
versity Soe.,  AV  i.  479 
English  .Joint  Stock  Bank,  In  re  i.  337 
Enlow  r.  Klein  i.  98,  09 
Enneking  v.  Scholtz  i.  2.">3 
Epperson  i:  .Jones  i.  221,  222 
Erb  V.  The  Cireat  Western  Ry.  Co. 

of  Canada  ii.1,61 

Erie  Railway  Co,  v.  Wi'.ox     ii.  185,  180. 

188 
Erlanger  v.  New  Sombrero  I'hosphate 
Co.  i.  312,  842.  .368 

i.  X'6 

i.  134 

ii.  525 

ii.  316 

i.  571 

i.  62,  82 

i.  76 

ii.  043 

i.  133 

ii.  316 

Mc- 

i.  348 


Ernest  c.    ''choUs 

Erroy  r.  Ni     ""Ison 

Erskine  r.  M., 

I*yrwin  I'.  SaundeK 

I'^scott  ('.  Milward 

Eskeridge  v.  Farrar 
II.  Warren 

Espy  I'.  Anderson 

Esron  v.  Nichols 

Essex  I".  Daniel 

Estates  Investment  Co.,  In  re 

Niell'sCase  

Etheringtf.n  i;.  1  iir  rr.l  i.  161, 152, 154, 155, 

158,  102,  179 

Eugene  Vestp,  'The  i.  201 

Eureka  Co.,  In  r.,  i.  410 

European  &  N.  A.  Ry.  Co.  v.  Poor     i.  295 

European  Central  My.  Co.,  In  re  Par- 
son's Case  i.  349 

Eustace  r.  Dublin  Trunk  Ry.  Co.    i.  371 

Evans's  Case  i.  10,  307 

Evans  v.  Bicknell  i.  315,  316 

V.  Collins  i.  310,  010 

V.  Covington  i  240 

V.  English  i.  230 

17.  Fisher  i.  161,  188 

V.  Gibson  i.  606 

V.  Harris  ii.  602 

V.  Button  i.  034 

V.  Llewellyn  i.  456 

V.  Powis  ii.  412 


TABLE  OF  CASES  CITED. 


XX  XIX 


Evans  v.  Pratt 
V.  Kotwrts 


II.  228,  229, 


i.  348 
155, 
12, 17'.) 
i.  2(11 
i.  416 
i.  295 

i.  349 
i.  371 
0,  3«7 
5,  316 
.0,  ($10 
i.  24li 
i.  230 
11,  188 
,605 
ii.  502 
i.  (534 
i.  455 
ii.  412 


V.  Uiigeo 

t'.  'rmi'iimn 

i>.  Williiiiiia 

V.  Wood        I.  340,  348, 
Kvansville,  &c.   K.   U.  Co., 

iMar»ili 
Evernrti  r.  Kondnll 
EVLTl'tt  ■■.  t'otHii 

r.  SaltiiH 

V.  Tlie  United  Stntci 
Evfrin(;liain  v.  Ali'i(;liuii 
EviTson  I'.  Campbell 
Ewbank  v.  Nutting     i.  2C9, 

Ewing  V.  French 

V.  Sniitli 
Ewins  r.  (Jcirdon 
Eyre  v.  niirniester 

I-  Wake 
Ezcll  I'.  Dodson 


F. 


PAoa 

i.  543 

231,233.235. 

238,  275 

i.  222 

i.  030,  (i4(i 

i.  2(15 

340,351,371 

The,    V. 

ii   214 

i.  285 

i.  2'.t3 

i.  203.  (i4(t 

i.  321 

ii.  301 

i.  130 

274,  276,  010, 

013 

i.  15,  26,  95 

i,  205 

ii.  514 

i.  383 

i.  145 

i.  221 


Faine  r.  Brown  i.  147 

Fairuhild  i;    Sloeuni  ii.  141 

Fairlie  i>.  Itioomingdalo  i.  281 

w.  Fenton  i.  522,629,570,671;  ii.072 

V.  ilastini^s  i.  487 

r^irly  V.  McLean  i.  80 

I:,  rport,  Tlie  I.  290 

Faitliful,  Tlie  i.  265 

Fallick  V.  Barber  ii.  (518 

Falmouth,  Karl  of,  v.  Thomas  ii.  234, 630 
Fanny  and  EIniira  i.  250 

FarbtT  V.  Farber  i.  200 

Farebrother  v.  Simmons  ii.  672 

Farina  v.  Home  ii.  360, 307,  453, 455,477. 

478.  486,  491 
Farley  v.  Cleveland  ii.  304,  (523 

r.  Parker  i.  139 

Farlow  v.  Ellis  i.  98 

Farmer  r.  Gray  ii.  503 

I'.  liussfll  i.  643 

Farmers'  and  Mechanics'  Bank  i-.  The 
Butchers' and  Drovers'  Bank 
i.  001;  ii.  10,17,18,  10,20,21,25. 
31.37,04,05 

I).  Champlain  Trans.  Co.  ii.  140,  153 
Farmers"  Bank  c  Planters'  Bank  i.  100 
Farmers'  Loan  &  Trust  Co.  v.  Curtis  i.  000 
Farmiii);ton  i:  Jones  i.  116 

I'.  Pillsbury  i.  418 

Farnam  v.  Brooks  i.  83,  452 

Farnuin  c.  Fowle  i.  fl.33 

V.  Piatt  i.  101 

Farquharson  v.  Cave  i.  79,  87 

Farr  v.  Sumner  i.  123 

Farrall  v.  Davenport  i.  594 

Farrant  v.  Blancliford  i.  460 

Farrar  v.  Barraclough  i.  454,  466 

Farrell  v.  I'atterson  i.  140 


Farrer  v.  Emery 
Farwell  i:  Mather 
Furwell,  The  L.  J. 
Faulds  r.  Yates 
Faulkner  i-.  McClure 
Fausett  r.  Faunett 
•"'aw  I'  Mastiller 
Fawcett  r.  Osborn 
t'.  Whitehuiue 


Pau 

i.  2:i:t 
ii.  64« 

ii.  63 
i.  800 
i.  146 
i.  487 
i.  5 


i.  468,  402 

i.  308,  342,  503,  (X)6, 

007 

Fa  wens,  /n  re ;  Ex  ixtrle  Buck  i.  641 

Fawkes  i<.  Lamb  i.  600,  571 

Faxon  r.  Durant  i  47 

Fay  ('.  Sears  i.  2;!5 

FeatherstoniiauKh  v.  Fcnwick  i.  602 

Fecel  Admr.  v.  (iuinault  i.  131} 

Federlicht  r.  (ilass  i.  246 

Feise  v.  Wray  i.  546 

Felker  v.  ICmerson  i.  laX 

Fell,  Er  parte  i.  500 

I'.  Brown  i.  237 

Fellow's  Appeal  i.  82 

Fellows  V.  i'owell  ii.  59 

I'.'-ster  V.  Leekanip  i.  205 

Felton  )'.  Dickenson  i.  18,  24 

Fenn  iv  Bittleston  i.  105 

r.  Ilarriscm    i.  487,  010;  ii.  27,  81,  40 
Fenner  c.  Lewis 
Fennerstein's  Champagne 
Fennick's  Case 
Fentori  v.  llolloway 
Fereday  r.  Wijjhtwick 
Ferguson  i:  Bell 

V.  Carrington 
Fernald  r.  Lewis 
Keronia,  The 
Ferran  v.  llosford 
Fcrrars  v.  Cherry 
Ferren  v.  Moore 
Ferson  i'.  Monroe 

Fertilizing  Company  r.  Hyde  Park  i.  390 
Fessenden  v.  Mnssey 
Field  V.  Chicago  &  K.  I.  U.  U 

V.  SchielTclin 

V.  Sowlo 
Figgins  V.  Willie 
Fiinier  v.  Lynn 
Finch  V.  Finch 

V.  Newnham 
Fincle  t:  Staccy 

Finlay  v.  Bristol  &  Exeter  Ry.  Co. 
Finley  v.  Insurance  Co. 
Finn  c.  Finn 

1'.  Hose 
Fire  Brick  &  Blue  Clay  Co.,  In  re 

Firefly,  The  

First  Baptist  Church  r.  Bigelow  ii.  5(»9,  573 

I'.  Brooklyn  Fire  Ins.  (,'0.  ii.  074 

First  National  Bank  v.  Christopher  i.  375 

V.  Bono  i  23 

First  National  Bank,  &c.  i'.  Haire    i.  302 
Fischli  r.  Fischli  i.  200 

Fisti  I'.  Benedict  i.  97 

V.  Hutchinson  ii.  575 

V.  Kempton    i.  626,  674,  678,  695 


192 
587 
408 
148 
506 
127 
i.  XH 
i.  4(19 
i  200 
i.  287 
i.  450 
i.  I(!5 
i.  500 


ii.  520,  541 
(^o.  ii.  181 
i.  405,  4(50 
i.  201,  202 
i.  083 
152 
186 
382 
409 
320 
i.  499 
i.  201 
i.  2:i3 
i.  331 
i.  277 


1. 
185, 
i. 
i. 
i. 


xl 


TABLE  OP  CASES  CITED. 


i- 


■r 


:i  :1 


VAam 

Fish  )'.  Richardson 

ii.  617 

Fiahback  i'.  Van  Duscn 

i.  15,  27.  96 

Fisher  v.  Beckwith 

ii.  &:i6 

V.  Dabbs 

i.  428 

V.  Dixon 

ii.  243,  244,  248 

V.  Fifkls 

ii.  671 

V.  Kelsey 

ii.  674 

V.  Marsh 

i.  671 

V.  Mowbray 

i.  118 

Fishli  V.  Fisiili 

i.  18(3 

Fi8hmongGr8'Co.,The,».  Robertson  i.  320 
Fiske  I'.  Kldridge  i.  601 

Fitch  V.  Harrington  i.  600 

o.  Jones  i.  420,  643 

Fitchet  V.  Adams  i.  023 

Fitt  V.  (-assanett  i.  384 

Fitts  V.  Hull  i.  123,  120,  133 

Fitz  V.  Tlie  Galliott  Amelie  i.  261 


Fitzgerald  v.  McCarty 

i;.  Reed 

V.  Siiclton 
Fitzherbert  v.  Mather 


i.  244 
i.  142 
i.  137 
609,  010,  614, 
616,616 
i.  138 
ii.  652 
i.  600 


Fitzhiigh  V.  Wilcox 
Fitzmaiirice  v.  Baylcy 
Fitzpatrick  i'.  Flanagan 

Fitzsitnnions  v.  Joslin  i.  486 

Five  Per  Cent  Ciises  i.  20 

Flagg  I'.  Baldwin  i.228 

Flanagan  c.  Bisliopwearmouth  i.  187 

Flanders  r.  Merritt  i.  261,  269 

Flasli  V.  Conn  i.  374 

Fleeher  v.  Fuller  i.  410 

Fleckner  i-.  Bank  i.  604 

V.  United  States  Bank  i.  307,  601 


Fleet  V.  Murton 


626,  ri27,  629,  66'J 


Fleetwood  c  New  York  i.  405 

Fleming  v.  Gilbert  ii.  316,  644 

I'.  I'age  i.  382 

Flemyng  v.  Hector  i.  486 

Fletcher's  Case  i.  366 

Fletcher  v.  Ferrell  i.  382,  385 

17.  Fletcher  i.  33,  51,  67 

V.  Heath  ■  i.  646 

V.  Rylands  ii.  89 

Flight  V.  Boliand  ii.  602 

Flint  V.  Craig  i.  3<.)7 

Flint,  &c.  Railway  Co.  v.  Dewey      i.  2i''j 

Flitcroft's  Case  i.  29U 

Flournoy  r.  Owens  i.  151 

Flower  v.  Flower  i.  194 

Floyd  Acceptances,  The  i.  414 

Fluck  V.  Tollemache  i.  Ill 

Flynn  v.  Messenger  ..  168.  159 

i'ogg  )'.  Virgin  i.  524 

Folev  V.  Hill  i.  33 

Follansbee  v.  Kilbreth  i.  295,  306 

Fontaine  v.  Bush  ii.  434,  500 

('.  The  Columbian  Ins.  Co.         i.  261 

Foote  I'.  Foote  i.  186 

Ford,  In  re  i.  196,  197 

V.  Beech  i.  630,  634 

V.  Crocker  i  261 

i.  118, 130 
i.  624,  649 


i>.  Phillips 
V.  Williania 


Ford  V.  Yates 
Forrest  v.  Elwes 

V.  Nelson 
Forristall  n.  Lawson 
Forster  v.  Hale 
Forsyth  u.  Hastings 

v.  Jervis 
Fortescue  v.  Barnett 
Forth  Main  Ins.  Co. 
Fortitude,  The  Ship    i. 
Fosdick  I'.  Schall 
Foshay  v.  Ferguson 
Foss  I'.  Harbottle 
Foster  v.  Bates 

r.  Dawber 

r.  Essex  Bank 

V.  Frampton 

V.  Fuller 

V.  Mackinnon        i. 

I'.  Mansfield 

V.  Pettibone 

V.  Redgrave 

V.  The  Oxford,  &c. 
Fothergill's  Case 
Ford  V.  Fothcrgill        i. 


Paob 
i.  660 
i.  465 

i.  98 

i.  161 

ii.  629,  661 

i.  129 

i.  9, 13,  18,  21 

i.  67,  73,  205 

Burncs  i.  340 

,  203,  267,  280,  291 

i.  3''6,  420 

i.  405 

i.  308,  342 

i.  6-23 

ii.  273 

ii.  40, 

ii.  463 

i.  601 

397,  308,  399, 400 

i.  91 

i.  14,  9.*],  96,  100 

i.  120,  121 

R.  Co.  i.  308 

i.  10 

112,  121,  127,  155 

i.  552,  557 


Fouldes  V.  WiUoughby 

Foulkes  V.   The   Metropolitan    l)is 
trict  Ry.  Co.  ii.  89,  91,115 

Fourth  National  Bank  v.  Fraiiklyn  i.  373 

Fowle  V.  Freeman     ii.  511,  516, '617,  694, 
698,  602,  C29,  658,  660 

Fowler  f.  Beebe  i.  412,  425 

V.  Brantley  i.  400,  616 

V.  J'oster  i.  207 

V.  Hollins  i.  661,  653,  556 

?.'.  Jacob  i.  247 

Fowles  V.  The  Great  Western  Rail- 
way Co.  ii.  77,  111 

Fox  V.  Fisk  i.  29 

V.  Hall  ii.  66 

V.  Hanbury  i.  497 

V.  Macreth    i.  299,  452,  454,  459,  404. 

465,  600 
«;.  Turner  ii.  604 

Foy  V.  The  Troy  &  Bostoi.  R.  U.  Co. 

ii.  126,  135 

Foye  V.  Leighton 

Fragano  v.  Long 

France  v.  White 

Frances,  The 

Fr.mcis  v.  Cockrell 
V.  Grover 

Frankfort  Bank  v.  Johnson 

Frankfort    Bridge    Co.   v. 
Frankfort 

Frtinklin  v.  Long 
V.  Miller 

Franklin  Bank  v.  Steward 

Franklin  Co.  v.  Lewistonlns.  for  Sav- 
ings i.  424 

Franklin  Fire  Ins.  Co.  v.  Jenkins      i.  297 

Franklin,  The  Lady  ii.  63,  65.  66 

Fi-ankling  Savings  Bank  v.  Greene  i.  229 

Franklyn  v.  Sprague  i.  498 

Franks,  £x/)ar<e  i.  206 


1.660 

ii.  484 

i.  149 

1.032 

ii.  92 

ii.  592 

i.  600 

of 

i.  321 

ii,  316,  644 

ii.  523 

i.  395 


City 


TABLE  OP  CASES  CITED. 


xli 


Paob 

Paoi 

Frary  v.  Booth 

i.  2(15 

Gadds  r.  Leeson 

ii.  809 

Fraser  v.  Marsh 

i.  2<J1 

Gaetano,  The,  and  Maria 

i.  251,  288. 

Fra/ir  r.  (.'uthbertson 

i.  288 

284 

FrazitT  r.  Perkins 

i.  02 

Gaffney  v.  Hayden 

i.  126,  126 

r.  The  Erie  Bank 

i.  450 

Gager  v.  Bubcock 

i.  269 

Freckling  v.  Holland 

i.  194 

Gaines  v.  Miller 

i.  460 

V.  IJoimid 

i.  2.}  I 

Gainsford  i\  (Carroll 

i.  14,  18.  23 

Fredd  v.  Kvea               i 

162 

,  162,  105,  180 

Gaither  c.  Williams 

i.  81 

Freeman  n.  Birch 

ii.  453,  484 

Gale  l:  Nixon 

ii.  602 

V.  Colt 

i.  117 

Gulland  v.  Galland 

i.  200 

V.  tl'ooke 

i.  628 

Gallatin  v.  Cunnhighani 

i.  465 

V.  East  India  Co.  i. 

259, 269,  277,  2!»2, 

Galley  v.  Taylor 

ii.  570 

2'.»8 

Galveston  Uailrcad  v 

Cowd 

reyi.375,;]07. 

T'.  Niehnlls 

i.  !)8 

405 ;  ii.  250 

V.  KobJDson 

i.  115 

Galway  v.  Shields 

i  23 

Freeman,   Schooner  v. 

Buckingham 

(Janiber  v.  Gand)er 

i.  150 

151,  216.  220 

ii.  47,  51, 

68. 

54,  5ti,  50,  2(17 

Garbutt  i*.  Watson 

ii.  217,  280 

Frceport  v.  Bartol       ii 

f.-J2 

551,  552,  555 

(iardner  v.  Butler 

i.  298,  802 

Freestone  c.  Butcher  f.  151, 

152,  153,  158. 

V.  Dutch 

i.  26 

163 

V.  Grout        ii.  394,  395 

397,  437,  494 

Fremont     Building    Association    v. 

V.  Joy 

i.  16 

Slierwin 

i.  417 

V.  Lane 

i.  6 

French  v.  Benton 

i.  115 

r.  McMalion 

ii.  309 

c.  Price 

i.  482 

V.  Merritt 

i.  67,  73,  77 

V.  Kaymond 

i.  52,  8f. 

V.  Paddock 

i.  m 

I'.  Shoemaker 

i.  404 

V.  Parker 

i.  87 

Frotz  V.  Stover 

i.  4(il 

I'.  Suydam 

i  27 

Froy  r.  The  City  of  Fond  du  Lac    ii.  277 

Gardom,  Ex  parte 

ii.  610,  626,  663,  554, 

Fricker  v.  Tliomlinson 

ii.  351 

672 

Frith  V.  Barker 

i.  528 

Garey  0.  Pike 

i.  9 

r.  Cartland            i. 

448, 

449,  408,  547 

(iartield  v.  Paris 

ii.  494 

Frisbie  v.  Lamed 

ii.  278 

Garland  v.  (Jarland 

i.  200 

Fromart  v.  Coupland 

i.  499  i  ii.  91 

Garrard  v.  Haddon 

i.  397,  400 

Frost  V.  Baker 

i.  244 

V.  Pittsburg.  &c. 

Co. 

i.  406 

V.  Everett 

ii.  315 

Garrett  v.  Handley 

i.  527,  6;56 ;  ii.  570 

V.  Goddard 

i.  108 

Garside  i'.  The  Trent  &  .Mersey  Nav- 

V. Oliver 

i.  274,  284 

igation  Co.      ii.  77 

96.  97 

,  98,  102.  108, 

V.  Parker 

i.  283,  2t2 

111,   130,  134,  136 

161, 

152,  156,  157, 

V.  Shaw 

i.  282 

160,  162,  166 

V.  Willis                 i, 

152, 

163,  164,  166 

Garth  i».  Howard 

1.604 

Fry  V.  Lexington 

i.  404 

V.  Ward 

i.  382.  884 

Fiientes  v.  Montis 

i. 

641,  646,  647 

Garvin  v.  Wiswell 

i.  389 

Fuller  V.  Abraliams 

i.  505 

Gashwiler  v.  Wiilis 

5.  378 

V.  Duren 

i.  13,  18,  24 

GaskHl  V.  Dudiey 

i.  409 

V.  Hooper 

i.  600,  601 

(iaslin  V.  Pinney 

ii.  484 

I'.  Melrose 

i.  297 

Gass  V.  Kew  York,  &< 

'.  R.  R 

.  Co.     ii   ;  lO 

V.  The  City  of  Chicago 

i.  429 

1;.  oimp.son        i. 

!'<,  44. 

45.  46,  48,  49, 

V.  Trimmell's  Case 

i.  628 

50,  51,  69, 

63,  04, 

69,  71,  80,  m 

V.  Wlieelock 

i.  262 

Gassett  i".  Audover 

i.  320 

V.  Wilson 

i.  316 

Gates  V.  Thompson 

i 

266,  267,  269 

Fullerton  v.  Doyle 

i.  165 

Gattorno  v.  Adams 

i.  276 

Fiilmor  V.  Leitz 

i,  400 

(iaudet  r.  Brown,  Ca' 

•go  er 

Argos     i.  270 

Fulton  V.  Fulton 

i  88 

Gault  V.  Brown 

ii. 

302,  435.  503 

Fun  y.  Hose 

i.  244 

c.  Saflin 

i.  223 

Fiinioonjee's  Case 

i.  386 

Gaunt  r.  Hill 

ii.  52.3.  570 

Furlonj;  c.  Ilysoui 

i.  152,  154 

Gay  V.  Ballow 

i.  18O 

Furstenlieini    v.    Memphis 

&    Ohio 

( J'-ary  v.  Physic 

ii.  592 

H.  K.  Co. 

07 

Gee  I'.  Pearso 

ii.  315 

F  &\y.  Railroad  Co.  v 

.  Hanna       ...  i4l 

Gelpcke  v.  Dubuque 

i. 

382,  395.  408, 

412,  600 

G. 

General  Interest  Co. 

V.  Ruggles         i.  263 

General  Smith,  The 

i. 

205,  279.  2S0 

Oahay  v.  Lloyd 

i.  578 

General    Steam    Na\ 

-igation    Co.   r. 

Oadd  V.  HoughtOQ      1. 

"'-', 

519,  520,  621. 

Guillon 

i.  105 

630,  532,  63;],  634,  535 

Genese,  In  re 

i.215 

r 


!:r  U 


■  U- 


xli'i 


TABLE  OP  CASES  CITED. 


Paob 
George  v.  Clagctt       I  525,  53K',  539,  6<37, 
56S,  671,  57G,  677,  596,  696,  040 
«;.  Oxford  Townsliip  i.  441 

Gerhard  i'.  Hates  i.  310 

Gcrmania  Savings  Bank  Appeal       i.  23<j 
Germond  v.  (iermond  i.  1H6 

Gerrilh.n  v.  I/AIkIo  i.  20« 

Gerrisli  v  New  Bedford  Ins.  i.  73,  77 

G^tdu'll  V.  Jewett  is.  602 

Gibbins  v.  The  N.  E.  Met.  Asylum 

District  ii.  6U8,  651 

Gibbons  r.  United  States  i.  586 

Gibbs  V.  Benjamin  ii.  600 

Gibbs  &  Sterret  Manuf.  Co.  v.  Goe  i.  232 

Gibson  v.  Bell  i.  21 

I'.  Colt  ii.  40,  71 

V.  Culver  ii.  120 

V.  D'Este  i.  125 

V.  Hammersmith  Ry.  Co.  ii.  248 

V.  Holland  ii.  670 

V.  Jeyes  i.  138,  145,  452,  464,  ()07 

V.  Kussell  i.  452 

I'.  Stone  i.  468,  4".t2 

Giddings  r.  Giddinps  i.  120 

Gifford  V.  11.  R.  &  Tr.  Co.  i.  300 

Gilbert  v.  Dale       ii.  70, 1)6,  102,  111.  113, 

ll'J,  126,  130,  155,  150 

V.  Hudson  i.  331 

V.  Manchester  Iron  Co.        i,  380,  3!)3 

Giles  r.  Edwards  i.  125 

Gilltinson  v.  Middleton  i.  274;  ii.  8'.) 

Gill,  In  tlie  Goods  of  ii.  054 

r.  Bicknell  ii.  544 

V.  Kulin  i.  469 

V.  Kynier  i.  639,  041 

"  ~    "  ~  ii.  90 

1.  11.3,  198 

i.  240 

i.  502,  018 

ii.  27 

i.  221 

ii.  412,  494 

534.  537,  f..")0, 

551,  654,  562 

I.  VH] 

ii.  302,  303,  435 

i.  409 

i.  320 

i.  31 

i.  134 

ii.  2ti8 

271 ;  ii.  314,  .365 

Fritchley  i.  113 

i  269 

i.  014,  015 

ii.  523 

Co.  I'. 

i,  373 

i.  150,  216 

i.  258 


V.  Manchester  Railway  Co. 

V.  Read 
Gillespie  r.  Smith 
Gillet  V.  Popporcorne 
Gillett  r.  OiYor 
Gilliard  v.  Chcssney 
Gilliat  V.  Roberts 
Gillighan  v.  Boardman     ii 


GilmJin  v.  Andrus 

V.  Hill 
Gilmore  r.  Holt 

r,  I'ope 
Gilpins  V.  (^onsequa 
Gindry  r.  Diivis 
Girard  r.  Patterson 

r.  Tasnart  i. 

Girls'  Industrial  Home  c 
Oinlio,  The 
Gladstone  r.  King 
Glaliohn  r.  Hays 
Glnmorgan.shire  Iron  &  Coal 

Irvine 
Glanii  V.  Younplove 
Glascott  I'.  I.anjj 
Glasgow  r.  Flowers 
Glasgow,  The 
Glass  r.  Meredith 
Glassingtnn  v.  Thwait'  - 
Qloae  i>.  Blake 


i.  07 

261,  278 

I.  239 

i.  602 

i.  160 


Paob 

ii.  312,  523 

i.  201 

ii.  060 

ii.  060 

i.  110 

i.  201 

i.  106 

i.  463,  647 ;  ii.  481 

i.  232 


Glazebrook  v.  Woodrow 
Glen  V.  Fisher 
Glengall  v.  Barnard 

V.  Tliynne 
Glover  v.  Adin.  of  Ott 

V.  Glover 
Glyn  I'.  Baker 
Godfrey  v.  Furzo 
Godman  v.  Smith 
Godts  V.  Rose  ii.  494 

Godwin  y.  Francis  ii.  686 

Goetz  f.  Bank  of  Kansas  City  i.  687 

Goff  V.  Great  Northern  Ry.  Co.         i.  610 

i;.  Rehoboth  i.  410 

Goit  r.  Insurance  Co.  i.  590 

Gold  Mining  (^o.  v.  National  Bank  i.  295, 

303,  593 
Golder  r.  Ogden 
Goldson  V.  Gardner 
Gonipertz  c.  Denton 
Gonsales  v.  Sladen 
Gooch's   Case,  In  re 

poration 
Good  V.  Cheeseman 

V. 


27 

i.  382 

i.  16 

i.  29 

Contract  Cor- 

i.  132 
i.  29 
Loudon   Steamship   Aspocia- 
tiou  ii.  89 

Goodall  I'.  Skelton    ii.  218.  250,  275,  311, 
320,  344,  449,  450,  476,  478,  491 
Goodenough  v.  Tlu.yer 
Gooileiuiw  r.  Tyler 
Goodhue,  Tlie  ,Ion'>.than 
Goodman  v.  Chase 

i:  Simonds  i. 

Good.scll  I'.  Myers 
Goodtifle  v.  Woodward 
Goodwin  c.  Boston,  &c.  Ry. 
V.  Railway  &  Canal  Co. 
V.  Roberts 
Gore  V.  Gardner 

V.  Gibson       i.  138,  140,  147,  148,  159 
Gordon  r.  (iordon  ii.  215 

r.  Little  i.  527 

V.  Martin  i.  13 

I.'.  Massachusetts  Ins.  Co.  i.  250,  259, 

2i')6 
i  114 
ii.  629 
160.  246 
ii.  503 
i   377 
808,  477 
i.  150 
ii.  f.93 
i.  .354 
i.  255 
i.  834 


i. 

001 

i 

450. 

5.'^0 

i 

284 

II. 

577 

397, 

ei5. 

016 

i. 

118. 

130 

Co. 

1. 

023 
i.  98 

i 

303 

I 

106 

i 

263 

r.  Potter 

r.  Trevflyan 

I'.  Tweedy 
Gorham  r.  Fisher 

V.  Gibson 
Gorman  r.  Boddy 

V.  Wood 
Gorrie  r.  Woodley 
Gorrissen's  Case 
Gosfabrick.  The 
(Josling  V.  HIggins 
Goss  r.  Lord  Nugent  ii.  315,  506,  620.  62', 
027,  630,031,  6.32,  636,043 

V.  The  New    York,   Providence 

&  Boston  Railroad  ii.  201 

Gotta  I'.  Clark  i.  Ho 

Gough  V.  Everard  ii.  240 

Gould  tv  Cav,.ga  Bunk  i  004 

V.  Gould  i.  161 

V.  HiP  i.  208 


TABLE  OP  CASES  CITED. 


178,  491 
i.  001 
450,  5?.U 
i.  -284 
ii.  577 
CI  5,  (516 
118.  i:50 
i.  0-23 
i.  '.)8 
i.  303 
i.  106 
i.  203 
148,  159 
ii.  2C5 
i.  527 
i.  13 
;50,  25'.), 
2i'.0 
i   114 
ii.  (•)2'J 
150, 246 
ii.  503 
i   377 
308,  477 
i.  150 
ii.  503 
i.  354 
i.  255 
i.  834 
|526,  <'2.', 
()30,  043 

ii.  201 
i.  115 
ii.  240 
j  004 
i.  151 
i.  208 


Paoi 
Goulding  v.  Davidson  i.  241 

Gourley  i'.  Linsenbigler  i.  36,  43,  80 

Uovit's  Case  i-  til2,  343 

(Jovurnor,  &c.  of  Bristol  i;.  Wait       i.  6_'3 
(iovi'tt  V.  Hadmidgu 


GciviiT  V.  Hancock 
(iowan  r.  Foster 
Grace  r.  Davison 

V.  Hall 

V.  Smith 
Grade  v.  I'almer 
GractT  I'.  Hitchnian 
Graff  r.  Kinney 
Grafton  I'.   Armitage 


ii.  !I0 

i.  102 

ii.  273 

ii.  548 

i.  110,  120,  131 

i.  407 

ii.  51 

i.  402 

i.  231 

ii.  254.  255.  2i)0, 

201,  202,  203,  204 

t'.  Cnininings  ii.  501) 

Grafton  Bank  v.  Woodward  ii.  044 

Graham  i\  Dyster  i.  054 

V.  Hendrick  i.  301 

V.  iMiisson  ii.  570 

V.  Hailroad  •>.  i.  375 

V.  U;.u.'.'-Mr,i  i.  201 

Granby  r.    '"I  i    .;•;(;■  i.  400 

tir.iiid  Cliiitt  .  .  V,  i'legar  i.  432 

Graiul  (iulf  Bank,  i'lie,  v.  Arclier    i.  30-3 

Grant  IK  Fletcliei  ii.  024 

v.  (irant  i.  33 

V.  Maddox  i.  500 

17.  Nay  lor  ii.  542 

V.  Norway  ii.  2,  3,  4,  8,  10,  11,  1 1,  15, 

10,   17,  18,  19,20,  21,  22,25,  31, 

32,  33,  34,  35,  30,  37,  39,  42,  43, 

46,  50,  5'.t 

V.  Parker  i.  381 

V.  Tliompson  i.  138,  142 

Grant.  The  ii.  50 

Grantham  v.  Hawley  ii.  222,  223 

Grapeshot,  Tlie    i.  203,  278,  280,  281,  282 

Gratitudine,  The      i.  25'.,  255,  2")8,   259, 

201,  209.  274,  277,  278.  .:'<3,  293 

Graves  v.  Boston  Marine  Ins.  C'  .      i  570 

■J.  Graves  i  2tM) 

V.  Saweer  i.  ^82 

V.  Weld  ii  2'\ 

Gray  i-.  Bartlett  .    '14 

V.  Chaplin  *.  2',W 

U.Davis  ii.  4.35,  5       5(>:' 

V.  Jackson       ii.  92,  93,  15!>,   Miit,  .,..:, 

1(54,  108,  207,  208,  209,  210,  211 

i.  308 


Greaves  0.  Ashlin 

V-  Legg 
Greely  v.  Bartlett 
Green  c.  Barrett 

V.  Beesley 

V.  Biddle 

V.  Briggs 

V.  Clarke 

V.  Cresswell 

I'.  Dunn 

I'.  Farmer 

V.  Ferguson 

V.  Hart 

I'.  Haytliorne 

V.  Kopke 

I'.  Kornegay 

V.  Langdon 

).'.  London  Omnibus  Co, 

I'.  Merriam 

V.  Moffat 

V.  Morris  &  Essex  H.  R.  Co. 

c.  Koyal  Ex.  Asa.  Co. 

V.  Skipworth 

V.  .Sperry 

V.  Thornton 

V.  White 

V.  Winter 
Green  County  v.  Camess 
Greene  r.  Ciiester 
Greenfield's  ICst. 
(Jreenhain  r.  Gray 
Greening  c.  Clark 
Greenslado  v.  Dave 
Green  way  i-.  Fislier 
Greeves  v.  McAllister 
(ircgg  V.  Robins 
Gregory  v.  Gregory 

I'.  Logan 

V.  McDowell 

V  Migliell 

V.  Patchett 

V.  Paul 

V.  Pierce 

V.  Wendell 


xliii 

PAaB 
ii.  312,  313,  814,  580 
i.  660 
i.  530 
i.  315 
1.490 
i.  594 
i.  482 
ii.  122 
ii.  677 
i  552 
i.  105 
i.  221,  222 
i.  303 
ii.  453,  477 
i.  630,  530  ;  ii.  27 
i.  47 
i.  00,  7.3,  87 
i.  000 
ii.  502 
i.  31 
i.  422 
i.  259 
ii.  592 
133.  134 
ii.  581 
i.  385 
i.  453,  502 
i.  414,  422 
i.  119 
i.  82 
i.  496 
i.  642 
i.  141 
i.  552,  667 
i.  116 
i.  268 
i.  83, 404,  017 
ii.  581 
i.  14 
i.  693 
i.  299,  308 
i.  165,  193,  206 
i.  193 
i.  496 


I. 


i.  320 

ii.  685.  590 

i.  022 

i.  267,  273 


c.  Lewis 

V.  Portland  Bank 

Grayson  r.  Atkinson 

(ireat  (^liarte  v.  Kennington 

Gri'itt  Eastern.  The 

(inat   Luxembourg  Railway  Co.  1 
Magnay  1.  295,  342,  600 

Gnat  Northern  Railway  Co  v.  Har- 
rison ii.  91 

Gnat    Pacific,     The,    S  ;,.~i£:i3    c. 
Hroomfleld  •■    287 

Great  Western  Railway  Co.  .'      ?ai<e 

ii.  O^^,  .»1.  93,  95 

C'cat  Western  Railway  Co.  of  Can- 
ada  •.  liraid  ii.  01 

iJrcaUev  v.  Noble  i.  202 


Grenada  County  Supervisors  i'.  Brog- 

den  i.  410,  418.  422 

'Iribben  v.  Maxwell  i.  140 

(irider  r.  Payne  i.  465 

Gridley  v.  Connor  i.  503 

Grier  i-.  Stout  i.  15,  93 

Grittin  v.  Uembert     ii.  611,  61.3,  614,  016, 

>'il8 


Griffin,  The  l-^arque 
GritHth  v.  Grillth 

r.  Ingledew 
Griffiths  r.  Owen 

V.  Porter 
Grignon's  Lessee  v,  Astor 
Grimes  r.  Van  Vecliteii 


i.  (i33 

i.  385 

i.  032 

ii.  273,  270,  277 

i.  455,  406 

i.  461 

ii.  270,  4.36 


Grimoldby  v.  Wells  ii.  421,  473,  494 

Grinilell  v.  Godmond  i.  195,  li»7 

(Jrindle  1.   '•^astern  Express  Co.        ii.  139 
Grisel  i-.  Steamer  Olivia  i.  292 

GrisscU  V.  Uristowe  i.  132,  .322.  344, 

346.  349,  697 


il 


xliv 


Griswold  v.  Haven 

I).  Miller 
Groom  v.  West 
Groto  r.  I'lice 
Grovcr  v.  Coles 

V.  GroviT 


TABLE  OP  CASES   CITED. 


Paob 

ii.  16,  17,20,81, 

32,  6!>,  65 

i.  148 

i.  21 

i.  220 

ii.  228 

i.  47,  80 


Grover  &  liakur  Co.  v.  Missouri  Pau. 


Hy.  Co. 
Groves  v.  Buck 

V.  Slaujjlitor 
Grublis  1'.  (-oliins 
Grube  v.  Nichols 
Grymes  v.  lioiie 
Guerreiro  v.  I'eile 
Giiit'liard  v.  Mortran 
Giiilt'ord  V.  Supervisors,  &e. 
Guiness  u.  Land  Corp.  of  Ireland 
Gullett  V.  .lervis 
Gunn's  Case 
Gunn  V.  London 
Ins.  Co. 

V.  Roberts 
Gunter  i-.  Lallan 

I'.  Leukey 
Gurney  i'.  Jklirend 

V.  Corbet 

V.  Wanersley 
Guth  V.  Gull) 
Guy  V.  I'oarkes 
Guy,  The 
Guy,  The  James 
Gwynne  v.  lleaton 


ii.  150,  214 

ii.  217,  227 

i.  ;J01 

i.  217 

i.  6"J5 

i.  38,  39,  43,  73,  88,  h;» 

i.  2i> 

i.  (JoO 

i.  4.'J" 

i.  321 

i.  2i) 

i.  302,  305,  bUO 

&  Lancashire  Fire 

i.  541.  025 

i.  261,  2G2,  207,  284 

i.  604 

i.  13,  18 

i.  550,  (550 ;  ii.  21),  4t) 

ii.  690 

i.  125 

i.  lO'.t 

i.  107 

i.  280 

i.  284 

i.  405 


H. 


Hank  i\  Linderman  i.  98 

Haase  v.  Itoehscheid  i.  117 

Habenicht  u.  liawls  i.  247 

Hackensack  Water  Co.  v.  De  Kay    i.  003 

i.  417,  428,  431 

ii.  150 

i.  382,  385 

Haselwood     ii.  613, 

614 

i.  405 

i.  034 


Hackett  i>.  Ottawa 
Hadd  V.  Express  Co. 
Haddens  r.  Spaders 
Haddeson  Gas  Co.  v. 

Haddix  v.  Iladdix 
lladley  v.  Clarke 

Uap:an  v.  Domestic  Sewing  Machine 
Co.  ii. 

Hane<lorn  v.  Oliverson  i. 

H.itrorty  !).  Powers  i. 

Ilajrood  )'.  Southern  i. 

Ila^uein  r.  Baseley 
Hai^li  r.  Ilrooks 

r.  North  Brierly  Union 
Hale  »'.  Brown 

I).  Christy 

V.  Gerrish 

t\  Marston 

V.  Walker 
Haley  v.  Ilammcrsley 
Hall's  Case 
Hall,  Kx parte 

V.  Ashurst 


573 

i.  623 

i.  116 

i.  413 

1.  H.3 

ii.  520 
i.  317 
i.  142 
i.  240 
i.  118 
i.  460 
i.  3<.*6 

ii.  246 
i.  307 
i.  130 
i.  641 


Hall  V.  Butterfleld 
V.  David 
r.  Featlicrstone 
V.  Franklin  Ins.  Co. 
t'.  Iluntoon 
V.  Janson 


Paoi 
i.  132 
i.  106 
i.  426 
259,  260,  266 
i.  630 
i.  660 


I'.  North  Eastern  Railway  Co.     ii.  95 
V.  Noyes  i.  454 

V,  Old  Talargoch  Lead  Manuf. 

Co.  i.  331 

V.  Palmer  i.  69 

V.  Soule        ii.  270,  514,  548,  540,  500 

r.  Warren  i.  144,  148 

i;.  Weir  i.  164 

Hall  Bank  i:  Mcrcliants'  Bank  i.  425 

ili'Men  V.  Kunder  ii.  251,  252 

11   Uvit  V.  Col.  Ins.  Co,  i.  291 

Ii    i'      '       state,  Jn  re        i   444,  44."),  448, 

449,  450,  40.J,  547 

Halle,         ^  .lester  i.  139 

llalleV,  iiie  i.  283 

llalliday  i:  Holgate  i.  101,  105 

V.  The  St.   Louis,  &c.  Railway 

Co.  ii.  214 

Ilallowell  t'.  Hater  i.  223 

V.  Hester  i.  161 

Hallows  V.  Fernie  i-  320 

Ilalsa  V.  Halsa  ii.  537 

llalsey  v.  Grant  ii.  029 

Halterline  i:  Hiee  ii.  604 

Hani  I',  'an  Orden  ii.  433 

Ilandiin  1-.  Jones  1.149 

llaniblet  i:  Hainblet  i.  120 

Hamburg,  Tiie  Cargo  ex     i.  269,  272,  285 
Hamburgh,  The  i.  251,  254,  258,  28b 

Hiinier  r.  Sidwny  i.  64 

Hamerton  i'.  Hanierton  i.  200 

Hamill  r.  Henry  i.  150 

Hamilton  v.  Carthage  i.  433 

r.  Lightner  i.  227 

V.  National  Bank  i.  94 

V.  The  Lycoming  Co.  ii.  674 

i;.  Watson  i.  610 

1-.  Wright  i.  462,  502 

Hannir.rsley  v.  De  Biel  ii.  587,  052 

Hammond  v.  Anderson      ii.  250,  463,  477 
llammons  v.  Henfruw  i.  21*.) 

Hamper,  lix  jxir/e  i.  468 

Hampstend  i:  Johnston  i.  404 

Hampton  i>.  Speckenagle  i.  S.'O 

Hananer  v.  Doane  i.  301 

Hanbury  v.  Kirkland  i.  017 

Hanchett  v.  Rice  i.  149 

Hancock  v.  Merrick  i.  104,  182,  183, 

184,  185 
Hancocks  v.  Lablaclie  i.  215 

Hand  v  Savannah  &  Charleston  R.  Ii. 


Co. 

Handocock, i;. 

Hands  v.  Burton 

v.  Slaney 
Handsworth    v.    City 

Bank 
Handwerk  v.  Oswood 
Hanks  i'.  Deal 


1.  415 

L118 

i.  8 

i.  110,  119 

of    Glasgow 

L812 

i.  00 

i.  134 


TABLE   OP   CASES  CITED. 


xlv 


Faoi 
i.  132 
i.  105 
i.  426 
0,266 

i.  530 

i.  560 

ii.  95 

i.  454 
f. 

i.  331 

i.  69 

K),  560 

14,  148 
i.  164 
i.  425 

31,  262 
i.  201 

15,  448, 
0:l,  547 

i.  i:]9 

i.  28;i 

01,  105 

ny 

ii.  214 
i.  223 
i.  151 
i.  320 
ii.  537 
ii.  029 
ii.  504 
ii.  433 
i.  149 
i.  120 
272,  285 
258,  28b 
i.  64 
i.  200 
i.  150 
i.  433 
i.  227 
i.  !)4 
ii.  674 
i.  610 
62,  602 
87,  652 
53,  477 
i.  219 
i.  4(i8 
i.  494 
i.  530 
i.  301 
i.  617 
i.  149 
82,  1H3, 
|184,  185 
i.  215 
K. 
i.  416 
L118 
i.  8 
10,  119 
;ow 
i.  312 
i.  90 
i.  134 


f 
% 


Paoi 

i.  404 

R.   U. 

i.  434,  440 

i.  196 

i.  604 

i.  428 

i.  434, 

440 

Ilfinsiird  w.  Robinson  i.  570 

Ilttiisoa  V.  ArmitiiKe  ii.  220,  324,  331, 

313,  349,  350,  308,  436,  442,  447, 

453.  470,  477,  484 


Hanna  v.  Cincinnati 

I',   The    Cincinnati,    &c. 
Co. 

Ilannaforil  r.  Ilaron 
llannay  /•.  Stewart 
Hannibal  r.  Faimtlcroy 
Hannibal,  &c.  Ii.  U.  Co.  v.  Marion 


V.  Meyer 

V.  IJoter 
Ilapf/ood  V.  Stiaw 
Harbaii(;ii  v.  Winsor 
Harbison  v.  Leiiitn 
Hanlcastle  r.  Ni'therwood 
Harili'U  v.  McClure 
Harden  i".  Parsons 
H anting  v.  Fo.x croft 
Hardnian  v.  Bclliiousti 

r.  IJootli 
Hardy  ('.  Sproul 
Hare  v.  Copland 

V.  Dresser 


i.  85;  ii.  2.-)0 

ii.  301 

i.  90 

i.  424,  425 

i.  148 

i.  23 

ii.  502 

i.  466 

i.  468,  4H2 

ii.  412 

i.  549,  550,  646 

i.  291 

i.  575,  570 

ii.  385 


V.  London  &  N.  W.  Ry.  Co.        i.  309 

V.  The  Mutual  Safety  Ins.  Co.  i.  628 

r.  Shearwood  ii.  0;iO 

Harford  n.  Lloyd  i.  448 

Har},'reaves  c.  Parsons  ii.  577 

Hart^roves  v.  Cook  ii.  537 

Hariiian  i'.  Anderson  ii.  453,  477 

V.  Reeve  ii.  17 

V.  Tappenden  i.  298 

Harmony  v.  Bingham  i.  405 

Harned  v.  Churchman  i.  201 

Harney  v.  Owen  i.  120 

Harnor  v.  Graves  i.  125,  334 

Harper  v.  Lemons  i.  116 

V.  Williams  ii.  27 

Harrington  v.  Brown  i.  405 

V.  Graving  Dock  Co.  i.  619,  620 

V.  Harrington  i.  200 

Harris,  Ex  parte ;  Inre  Imperial  Land 


Co.  of  Marseilles 

ii.  069 

iv  Carter's  Admr. 

i.  386 

V.  Clark 

i.  80 

)'.  Davis 

i.  180 

i".  Fowle 

i.  8,  18,  21 

V.  Harris 

i.  201,  224 

V.  Huntbach 

ii.  577 

I'.  Lee 

i.  195 

V.  Matthews 

ii. 

349,360,451,491 

V.  Morris        i. 

161, 

178, 

179,  IbO,  192 

V.  Nicholas 

ii.  40 

V.  Pepperell 

1.  422 

i;.  Runnels 

i.  301,  303 

V.  Truman 

i.  402,  547 

V.  Wall 

i.  127,  129 

Harrison's  Case 

i.  355,  364 

llanlson.  Ex  parte 

i.482 

I'.  Pane 

i.  119 

V.  Grady 

i.  152,  101 

V  Guest 

i.  452 

Harrison  r.  Harrison 

r.  Luke 

r.  Sterry 
Harrod  i».  Harrod 

V.  Norris's  Heirs 
Harsiiaw  v.  Merryman 
Harsh  man  i'.  Bates  County 

V.  Winterbottom 
Hart's  Case 
Hart  V.  Boiler 

V.  Busli 

I'.  Clark 

V.  Frontino  Mining  Co. 

V.  Goldsmith 

V.  Nash 

V.  Prater 


Paob 

ii.  690 

i.  8,  9,  21 

i.  497 

i.  144 

i.  454 

i.  154,  105 

i.  431 

1.413 

i.  128 

ii.  412 

ii.  324,  397,  399,  400,  401, 

458,  477,  492 

i.  459 

i.  603 

i.  2.37 

ii.  272,  304 

i.  110 


V.  Prendergast  i.  130  ;  ii.  ;K)9 

V.  Sattley     ii.  287,  303,  324,  359,  378, 

449,  477 
V.  Ten  P.yck  i.  27,  450 

V.  The  Renssalaer,  &c.  R.  R.  Co. 

ii.  122,  123,  134 

V.  United  States  i.  585 

Hart's  Kxicutors  v.  Boni  i.  02,  82 

Ilarter  r.  Kenroehan  i.  427 

Hartfield  i-.  Phillips  i.  107 

V.  Roper  i.  134 

Hartley  v.  Hurl  i.  208 

V.  Wharton  i.  127,  130 

Hartman  v.  Kendall  i.  127,  129 

Hartmann  v.  Tegart  i.  163,  166 

Hartness  v.  Thompson  i.  110,  128 

llartop,  Er  jitirte  i.  630,  541 

!•.  Hoare  i.  105,  609 

Harts  i:  Brown  i.  297 

Harvey  v.  Ashley  i.  128 

I'.  Bagshaw  ii.  653 

V.  Grabbam  ii.  530,  630, 631,  032,  643 

r.  Harvey  ii.  245 

V.  Johnston  i.  127 

1-.  Norton  i.  163 

V.  St.  Louis  Butchers',  &c.  Assoc. 

ii.  600 

V.  Towers  i.  397 

Harward  r.  St.  Clair  Drainage  Co.    i.  428 

Harwood  v.  Railway  Co.     i.  295,  304,  306 

ii.  643 

ii.  40 

i  240 

i.  98 

i.  141,  144 

i.  87 

I.  543 

i.  536 

i.  88 

I  585 

i  428 

i.  84,  00,  462 

i.  480  ;  ii.  40 

i  042,645 

i.  88,  91 

ii.  611,  603,  694,  002 


Ilasbrouck  r.  Tappen 
Hasehnan  v.  Young 
Hashegan  r.  Speeker 
Haskins  w  Warren 
Hassard  r.  Smith 
Hassel  i'.  Tyrett 
Hastelow  r.  Jackson 
Hastings  c.  Lowring 
Hatch  r.  Atkinson 

V.  Coddington 

I'.  Dana 

V.  Hatch 

V.  Taylor 
Hatfiehl  c.  Phillips 
Ilatheway  v.  Payne 
Hatton  V.  Gray 
Haugliton  V.  Matthews 

(.'.  Morton 


lilt  I 


1 1 


i! 


I  It  I 

i 


'I 


4 


;  III 
'  \  111 


i.  650 
ii.  630 


IT 


iffi'i 


M^ 


1 


a        :         , 


xlvi 


TABLE  OF   CASES   CITED. 


Paok 
Haven  c.  Wcntworth  i.  f)(M) 

Uhvi-ii  Uohi  Miir;>g  Co.,  AV  i.  ;]()H 

Uuwes  r.  Armstrong  ii.  62(3,  570,  671 


I'.  Forator 

ii.  513 

V.  Oakland             i. 

800, 

302, 

881,418 

V.  Tilliiiglmst 

i.  4(t'J 

V.  Watson             ii. 

454, 

470, 

477,  478 

Ilawkc  V.  Urban 

i.  244 

llawken  v.  Bourne 

i.  500 

Hawkt's  V.  Iliiwkt's 

ii.  692 

Hawkins  v.  HIewitt 

i.  87 

17.  (iardner 

i. 

454,  4(MS 

V.  Holmes 

ii.  588 

V.  Maltby      i.  324, 

346, 

348, 

340,  3r.o 
351,  372 

Hawlcy  v.  Cramer 

i. 

405,  605 

V.  Kec'ler 

ii.  300 

V.  Marcius 

i.  4(55 

V.  Moody 

i.  24 

V.  Scree  ven 

ii.  214 

V.  Upton 

i. 

393,  ;i'.t4 

Hawson  v.  Hancock 

i.  54:5 

Hawtayne  v.  Bourne 

i.  50<i 

Hawtry  v.  Butlin 

ii. 

245,  2  Hi 

Hay's  Case 

i. 

312,  007 

Haycraft  v.  Creasy 

i.  010 

Hayden  v.  Manning 

1.418 

V.  Noyes 

i.  409 

V.  Rofiers 

i.  243 

V.  Williams 

ii.  300 

Hayes  v.  Holly  Springs 

• 

i. 

413,  416 

V.  I'arker 

i. 

132. 

133,  i:;4 

V.  Soiifii  Wales  Ha 

dway  Co. 

ii.  87 

Haygartli  r.  Wearing 

i.  455 

Havle  V.  Plattsburg  &  Montreal  R.  R. 

Co. 

i.  308 

Hayman  ».  Fiewker 

i.  107 

I'.  Molton 

i. 

252, 

259,  277 

Hayn  v.  Culliford 

i.  274 ; 

ii.  88,  89 

Hayncs  v.  Foster 

i.  039 

Hay  ward  v.  Ellis 

i.  405 

V.  National  Bank 

i.  304 

F.iywood  «».  Pilgrim  Society 

i 

297,  298 

Hazard  t\  Hazard 

i.  4f,9 

V.  Spear 

i.  593 

Hazen  r.  Union  Bank  of  Tennessee  i.  428 

Head  n.  Baldrey 

ii.  623 

V.  Diggon 

ii.  598 

V.  Head 

i.  109 

V.  Starke 

i  401 

Headley  i'.  Kirby 

i.  52 

Heald  v.  Carey 

i.  552 

t:  Kenwortliy       i. 

515, 

540, 

502,  603, 

564 

505 

572 

580,  581 

Healey  >\  Utiy 

ii.  3C.5 

Heane  v.  Rogers 

i.  5(jo 

Heap  V.  Dobson 

i 

479,  492 

Heard  v.  Wadliam 

ii.  312 

Heartley  v.  Nicholson 

i.  33,  51 

Heath  i'.  Chilton 

i.  461 

V.  Heath 

i.  201 

V.  Mahoney 

i.  133 

V.  West 

i 

.123 

,  131,  132 

Heathorn  r.  Darling 

i.  203 

Heatley  v.  Thomas 

i 

201 

202,  203 

Paoi 

i.  352,  853 

i.  255 

i.  208 

i.  91 

i.  34,  87 

ii.  497,  498 

i.  050 

ii.313 

i.  600 

i.  165 

ii.  410,  421,  401 

ii.  454,  477 

i.  220 

i.  284 

ii.  244,  247 

i.  148 

i.  267,  482 

i.  200,  201 

i.  no 

i.  7.  17 
i.  138 
i. 
i. 
i. 


160 
347 


,310 


Hebb's  Case 
llebe,  The 
Heck  V.  Clippenger 
Hedge  i\  Drew 
Hedges  v.  Hedges 
Ileerniance  r.  Taylor 

('.  Vernoy 

i».  Yeomans 
Hefner  r.  I'almer 
Heidenheimer  c.  Thomas 
Heilbutt  V.  Iliekson 
HeiiK'key  v.  Earle 
Heinelreich  r.  Carlos 
Ileinrich  Bjorn,  The 
Hellawell  r.  Eastwood 
Heller,  litre 
Helme  v.  Smith 
Helms  I'.  Franciscus 
Heli)s  r.  Clayton 

I).  Winterbottom 
Ilembold,  lie 
Hemelreich  v.  Carlos 
Hemming  v.  Maddick 
Henderson  v.  Anderson 

I'.  Australian  Royal  Mail  Steam 
Nav.  Co.  i. 

V.  Lacon         i.  315,  325,  320,  612,  018 

I'.  McGregor  i.  140 

I'.  Overton  i.  694 

V.  Royal  Britisli  Bank         i.  330,  341 
Henderson's  Tobacco  i.  424 

Henderson  &  Nashville  Ry.  v.  Leavett 

ii. 
Heney  v.  Sargent 
Henn's  Case 
Hennessey's  Case 
Henniker  v.  Wigg 
Henry  v.  Bank  of  Selina 

V.  Fine 

V.  Patterson 

I'.  Root 

V.  The  Great  Northern  Ry.  Co. 

V.  The  Vermilion,  &c.  Ry.  Co. 

V.  Vamilia,  &c.  R.  R.  Co. 
Henshel  v.  Maiirer  i. 

Hepburn  (•.  Griswold 
Herald,  The  Bark 
Herbert  1:  Huie 

V.  Kneeland 
Hercules  Ins.Co.,  In  re;  Pugh  &  Shar- 

man's  Case  i.  347 

Hereford  &  South  Wales  Waggon  &e. 

Co  ,  In  re  i.  626 

Heritage  v.  Paine  i.  34ti 

Herman  v.  Perkins  i.  210 

Hern  v.  Nichols    i.  .'J40, 571, 608, 609  ;  ii.  17 
Heme  v.  Meeres  i.  459 

Hero.  The  i.  279 

Herrick  i\  Carter  i.  13,  21,  22,  23 

Herring  v.  Sanger  ii.  278 

Hersey  v.  Veazie  i  2i)7 

Herscy,  The  i  265 

Hervey  1:  R.  I.  Loco.  Works  i-  97 

Heryford  v.  Davis  i  07 

Heseltine  v.  Siggers  ii.  222 


603 
180 
161 
128 
450 
280 
130,  142 
1.90 
i.  120 
i.  308 
i.  428 
i.  207 
86,  88 
i.  5 
i.  268 
i.  399 
ii.  40 


TABLE   OF  CASES  CITED. 


xlvii 


Paoi 
Hesketli  v  Blanchard  i  468,  4(i!) 

Hiss  r  Urowii  i  224.  232 

IKwcs  i:  Jordan         ii.  346,  434,  470,  uOO 
Ili'svitt  I'.  Km  ye  i   JJ:) 

Hoytioc  V.  Uiirj!e  i-  479,  4!)() 

Ik'Viuan  V.  Fluwker  i.  010 

lli'vinann  v.  Tlie  European  Central 

Ky.  Co.  i  34:J,  ;570 

Ili'vvvanl  r.  CnthluTt  i.  117 

lliliblewhite  r.  McMorine  ii.  222 

Ililibsi'.  Koss  i    2(17,281 

llichuns  V.  Congreve    i.  308,  342,  502,  uO.5, 

60« 

HicklinBy.  Hardey  i.  0,  17,21 

Ilickinati  r.  Co.x  i.  474 

V.  Hayiies    ii.  637,  038, 639,  640,  (541. 

642 

Iliuks  r.  Cleveland  ii.  307 

V  Cram  i.  500 

V.  Miiitiini  ii.  673 

Ilic'kson  r.  I^onibard  i.  343 

Ilium  V.  Mill  i.  456 

llijjt^ins  V.  Burton  i.  550,  646 

I'.  McCrea  i.  64!) 

V.  SaiiR'ls  i.  60(J 

V.  S.  lior       i  524,  527.  520,  535,  53',(, 

..62, 503,  570,  576, 601,049 ;  ii.  54f). 

I'.  TiioWatervliet  Turnpike  Co.  i.  5si 

V.  Watson  ii.  53.} 

Ilifjiiiey  V.  Barron  i.  130 

Ililjlit  V.  Hiplcy  i   16 

Ilill)isli  V.  Catliorman  i.  417 

Hililretli  i\  Mclntvre  i.  411 

IllMyard  v.  Soutii'Sea  Co.  i.  369, 403,  61)3 


Hill  y.  Anderson 

i.  12',) 

V.  Buukniinster 

i.  H6 

I'.  Chapman 

i.  37,  39,  86,  87 

V.  Idle 

i.  6.34 

V.  Lane 

i.  315 

V.  McDonald 

ii.  50;5 

V.  Nisbet 

i.  2:  (8 

t'.  Ferrott 

i.  527 

V  Siin])son 

i.  405,  460 

r.  Stephenson 

i.  62 

I'.  Stevens 

i.  73 

1. 


i.  274,  '287 

i.  376 

ii  315 

i.  425 

190,  197 

i  33 

i.  573,  .'■)'.»9.  601 

i.  433,  435 

i.  238 

i.  118 

i.  190 

i   241 

453,  484.  513,  024 

i.  304,  31  IS,  403 

i.  168,  40!) 

i.  205 

i.  17 

i  502 

i.  205,  '229 

ii.  047,  652 

i.  2'J9 

ii.  535 

i.  468 

i.  10.3,  190 

i.  344,  346,  349 

i.  459 

ii.  644 


Hill  Manufacturing  Co.  v.  Lowell  R. 

H.  Corp.  ii.  214 

lillianl  c.  Richardson  i.  581 

nils  i:  Hills  i.  67,  05,  87 

lillshorough  r.  Deering  i.  113 

lillyer  r.   Barnett  i.  129 

litnrod  Furnace  Co.  i\  The  Cleave- 

laiid,  &c.  K.R.  Co.  ii.OOl 

liiicliinan  i'.  Lincoln  ii.  4.32,  491,  495 

linckley  i\  New  York  Central  11.  H. 

Co.  i  1. 1.34 

liiii'ks  V.  Nelthorpe  i.  199 

lindc  r.  Whitehouso    ii.  32 1 ,  .320,  .39,"),  429. 

437,  4U:'..  ,V27,  529,  542, 589, 029,  636,  644 
linds  ('.  Ilind.s  i.  201 

liiulustnn  r.  Kintrea  i.  .322 

line  ('.  Trevor  J.  287 

linely  v.  Margarity  i.  129,  130 

Hines  v.  Bryan  i.  117 


Vkou 
nines  V.  Frantliam  '  i.  409 

llindley  v.  Marquis  of  Westmcath    i.  162, 

105,  108,  178 
Ilingston  v.  Wendt 
llinton  V.  Meade 

V.  Sparkes 
Ilippsly  I).  Tueke 
Hirst  I'.  Tolson 
Hitch  V.  Davis 
Hitchcock  r.  Buchanan 

I'.  Galveston 

i;.  Richold 

i;.  Tyson 
Ilitner's  Appeal 
Hixon  f.  Hetherington 
Hoadly  r.  .McLaine    ii. 
Hoare's  Case 
Iloai'e  V.  Dawes 
Hobbs  V.  Norton 
Hoclister  r   De  la  Tour 
Hodge  r.  Twitcliell 
Hodges  I'.  Hodges 

V.  Horsfall 

V.  New  Kngland  Screw  Co, 

r.  Steward 
Ilodgkinson,  /-Jx  parte 

V.  Fletcher 

V.  Kelly 
Hodgson,  A'.c  parte 

V.  Hutchenson 

V.  Le  Bret    ii.  .322,  3,34,  415,  437,  443. 
449,  478,  491,  613,  630,  602 

V.  Williamson  i.  205 

Hodsun  V.  (^opcland  i.  297 

V.  Davis  i.  240 

V.  Le  Bret  ii.  217.  218 

Hoff  I'.  Koerper  i.  1.58 

Hoffman  c.  Insurance  Co.  i.  499 

Hoffman  Steam  Coal  Co. «;.  Cumber- 
land Coal  &  Iron  Co.  i.  299,  .305 
Hoffiner  v.  Wenrieh  i.  400 
Ilogan  I'.  Weyer  i.  407 
Hogg  c.  Garrett  i.  487 
llogkinson  »•.  Kelly  i.  .324 
ilolbrook  V.  New  .lersey  Zinc  Co.  i.  003 
Holcomb  i».  People's  Savings  Bank  i.  226 
Holden  Steam  Mill  v.  Westervelt  1.  13 
Holder  v.  Cape  i.  163 
Holdsworth  r.  Hunter  i.  *il6 
Holliind,  Kr  parte                       i.  144,  214 

f.  Hodgson  ii.  245,  210,  247.  248 

V.  Hoyt  ii.  276 

HoUey  >•.  Adams  i.  80 

Holliil.ay  c.  Atkinson  i.  80 

lloUins  V.  Fowler  i.  549,  550,  661, 652,  6,56, 

657 
Ilollistcr  Bank,  Tn  re 
Holly  V.  Huggerford 
Holman  v.  Loynes 
Holme  ('.  Hannnond 
Holmes  r.  Blogg   i.  118,  123, 124, 125, 131 

V.  Holmes  i.  194 

V.  Hoskins    ii.  387,  450,  469,  470,  491 

V.  Seely  i   101 

V.  The  United  Ins.  Co.  i.  409 


i.  .394 
i.  056 
i.  007 
i.  474,  477,  482 


rf  I 


I' 


■qnpvip«« 


If' 


t 

1, 1   . 

i 

';      Ii) 

I  i, 


Ii  i 


xlviii 


TABLE  OP   CASES   CITED. 


PAoa 

Holmes  V.  Trompor  ii.  240,  40O 

Holmes  Kstate,  In  re  i.  b'-i 

Holt  V.  Brien  i.  152,  154,  158,  1«3 


V.  Everall 

V.  Holt 

V.  Odber 

V.  Sorrell 
Holtiiaus  t'.  llornbostlo 
Hulyokc  Bank  t'.  Iturnliam 
Home  Insurnnee   Co.   i. 

Warehouse  Co 
Home  r  v.  Thwiug 
Hond's  Case 
Hoiidlette  v.  Talliimn 
Hoiiyiiiiin  I'.  Miirryatt 


i.  216 

i.  454 

i   17 

i.  246 
i  21H 
i.  390,  403 
Baltimore 

i.  C57 
i.  133,  134 
ii.  635 
ii  602 
ii  fit'iO 


Hood  V.  Lord  Baniiijjton   ii.  618,(557,000 

V.  Tlie  New  York  &  New  Hhvimi 

H.  It.  Co.      11.  13'J,  141, 143.  140. 

147.  150 

Hooker  i'.  Knab  ii.  270,  277 

Hooper,  Re  i.  1<)4 

I'.  Goodwin  i.  64 

V.  Stephens  ii.  304,  3(»!» 

v.  Stevens  ii  273 

Hoot  f.  Sorrell  i  227 

Hoover,  lie.  ii.  6i'3 

V.  Alexander  i.  652 

V.  Montelair,  &c.  Ry.  Co.  i.  420 

V.  Wise  i.  5!)4 

Hope  I".  Hope  i  l",t2 

V.  International  Financial  Soc.  i.  tVIX 


Hopijood  c.  I'arkin 
Ho])kins'  Appeal 
Hopkins  v.  Klinorc 

V.  Forsyth 

V.  Lee 

r.  Lopan 

I'.  Mehaffy 
Hopper  V.  Corrinffton 
Hopton  r.  McCarthy 
Horn  ('.  Baker 

?'.  Cole 

V.  Ilann 

V.  Loekhart 
Hornblower  v.  Frond 


i.  017 
i.  2!)7 
i  40!) 
i.  482 
i.  31 

ii.  614 
i.  535 
i.  412 

ii.  430 

ii.  245,  247 

i.  220 

i.  140 

i.  401 

ii.  221 


Horncastie  v.  Farran  ii.  278, 365, 451, 462 


Home  and  Ivy's  Case 
Horner  v.  Dow 

V.  Lewis 

I'.  Siiniott 
Horr  V.  Barker 
Horsey  v.  (iraham 
Horsfall  r.  Fauntleroy 

V.  Hey 
Horton  i-.  MeCarty 
Horwood  V.  lletler 


0.  Smith 
Hoskins  v.  Duperoy 

V.  Slayton 
Hossfeldt  V.  Dill 
Hotchkiss  V.  National  Bank 
Hotel  Company  v.  Wade 
Hough  r.  Jones 


i.  320 

i.  628 

i.  105 

ii.  40 

i.  27 

ii  60(5 

i  5(iO 

ii.  2.x  250 

ii.  555,  558,  55'.t,  502 

i.  101,  173,  175,  170. 

177,  179.  187 


i  450 

i  9,  17,  21 

i.  2(V.t 

i  228 

i.  :)07 

i  303,  308 

i  223 

V.  Manzanos    i.  530, 531,  533, 534, 636 


Hough  r.  Bailway  Co.  ii.  171 

Houghton's  Case  ii  91 

Houghton  c.  Milburn  i.  222 

r.  Boss  i.  24 

Houldsworth  v.  City  of  Glasgow  Bank 

i.  337,  338,  3;^',t,  340 
Houliston  V.  Smith  i.  151,  102 

V  Smyth  i.  102,  173,  179 

House  V.  Alexander     i.  122,  123,  120,  132 

V.  House  i  140,  577 

Household  Fire,  &c.  Co.  v.  Grant    i.  303; 

ii.  070 
Housemain  v.  The  Schr.  North  Caro- 
lina i.  206 
Houseman  r.  The  Schr.  North  Caro- 


lina 
Houser  v.  Kemp 
Ilouts  c.  lldlltS 
Hovey  r  Ciiaso 

V.  Ilolison 
How  V.  Keniball 
Howard  r.  Bank 

1'.  Borden 

V  Braitliwaite 

V.  Bryant 

i;.  Castle 


Harris 

Moffat 

Odell 

Savings  Bank 

Sinijikiiis 

The  Karl  of  Digby 

Tucker 


i.  248 

i.  90 

i.  189 

i.  142 

i.  142 

Ii  537 

i.  77 

ii.  495,  502 

487;  ii   40 

1   161 

i.  505 

11,92,271 

i.  201 

i.  267 

i.  67,  73 

i.  130 

i.  139,  142 

ii  34 

r.  Windiiam  County  Bank  i.  47 

Howard  County  r.  Boonevillc  Central 

Nat   Bank  i  423 

V.  Paddock  i.  422 

Howarth,  /n  re  i.  122 

Howe  V.  Chesloy  i.  241 

V.  (^ity  of  Glasgow  Bank  i.  340 

I).  Hay  ward  ii.  280,  284,  314 

V.  Lawrence  i.  500 

V.  Palmer    ii.  220,  250,  328,  329,  330, 

343,308,  435,430,  447,451,  470, 

477,  493 

V.  Smith  ii.  315 

V.  Wildes  i.  214 

lloxier.  Price  i.  222 

Hoyle  V.  Plattsburgh  R.  R.  Co.         i.  300 

V.  Stone  i  131 

Hoyt  i:  Sprague  i-  498 

V.  Thompson  i.  626 

r.  Wilkinson  i.  132 

Hubbard  v.  Biigbce  i.  141,  247 

V.  Cummings  i.  123 

Hubbell  1'.  Van  Silinnning  i.  96 

Hubbersty  r.  Ward  ii.  2,  10,  42 

Hubert  r.  Morcau       ii.  588,  580,  501,  504 

HuildUstone  r.  Briscoe      ii.  602,  020,  644 

Hudson  V.  Clementson  i.  276 

V.  Granger  i.  639 

V.  Hudson  i.  238 

V.  King  i.  243 

V.  Stewart  ii.  636 

Hudson  Iron  Co.  i-.  Alger        i.  19,  21,  23 


TABLE   OP  CASES  CITED. 


xlix 


Paoi 

Iluelaon  v.  Buck 

ii.  002 

IliJljenin  v.  Uastley 

i.  462 

Hughes,  A'.r  paite 

i.  209, 

454,  450 

V.  Cliailwick 

i.  15:] 

V.  (iiillans 

i.  VM 

V.  IloUidiiy 

i.  4(J0 

I'.  I'arainour 

ii.  308 

V.  Stanley 

i.  'J5 

V.  Wells 

i.  20:] 

0.  Wheeler 

ii.  278 

Hiiiskamp  i'.  Moliiio 

Wagon  Co. 

i  500 

Hull  (V  rickersgiU 

i. 

G2:],  ;'24 

V  South 

i.  i'O 

Ilulino  V.  'i'ennnt 

i.  201 

20:],  -JM 

Humble  !'.  Hunter 

i. 

52!>,  570 

V.  Mitchell 

ii.  222 

Humboldt  Township 

V.  Long     i 

427,  4:]2 

Hume  V.  Herton 

i.  141 

V.  The  Earl  Kly 

i.  145 

Humphrey  v.  Dale     i. 

520,  529,  500,  5(il». 

607 

1. 1:!4 

r.  Douglass 

Hunt  1'.  Ailams 

ii.  5:34,  548 

I'.  Hrown 

ii.  01((,  02:] 

i".  De  Blaqiere 

i.  100,  1',I2 

V.  Hecht       ii.  324, 

385,  SSt^,  3',)7,  408, 

477,  478,  4!t;j 

V.  Massey 

i.  127,  l:JO 

i>.  Ransinanicr 

i.  182 

I'.  Hoval  K.xhange  Ass.  Co.        i.  2il0 

V.  Silk      i.  12:},  12i 

>,  334;  ii.  365,  451, 

1  .-.t 

V.  The  New  York  &  Erie  K.  II.  ^"^ 

Co. 

ii.  122 

V.  Tliompson 

i.  113,  115 

i;   Weiner 

i.  404 

w.  Wyman 

i.y2 

Hunter  v.  Atkins 

i.  452,  459,  50:5 

V.  Hunter 

i.  33,  88,  91 

V.  Miller 

i.  6;i0 

V  Prinsey 

i.  274 

D.  Welsh 

i.  100 

V.  Wetsell     ii.  270, 

275,  276,  290,  297 

I'.  Wilson 

i.  422 

HuntinRton  v.  Gilmore 

i.  :J3 

I'.  Knox 

i.  049 

V.  Palmer 

i.  381 

I'.  Saunders 

i.  215 

!'.  Te.xas 

i.  442 

Huntley  r.  Huntley 

ii.  678 

Huntley,  The 

i.  284 

Huntress  c.  Patten 

ii.  651 

Hurd  V.  West 

i.  15,  16,  20,  0:] 

Hurry  v.  Man'jles 

ii.  453,  475,  477 

Hurst  V.  Heaeli 

i.  81} 

Hussey  v.  Allen 

i.  292 

i:  Christie 

i.  269 

V.  Home  Payne   ii 

605,  662,  003,  604 

Huteheson  v.  Eaton 

i.  542 

Hutching  V.  Engel 

i.  i:]4 

Hutchins  v.  King 

ii.  223 

V.  State  Bank 

i.  405 

Hutchinson  v.  Hunter 

i.  27 

i".  Kay 

ii.  245 

V.  Heid 

i.  21 

Paob 
Hutchinson  v.  Surrey,  &c.  Asgoc.   i.  541. 

025 

V.  Ttttham  i.  529,  530,  569,  670 

Huthnmcker  v.  Harris's  Admrs.  i.  24 

Hutton  r.  UuUocli  i.  514 

V.  Bragg  i.  274 

V.  Mansell  i.  127 

I'.  Padgett  li.  681 

I'.  Scarhorougli,  &c.  Co.  i.  307 

V.  Wiirren  i.  627, 560 

Iluzzey  I.  Field  i.OlO 

Hyam's  Cii.se  i.  337,  390 

Hyatt  V.  Vincennes  National  Bank 

ii.  250 

Hyde  i-  Cookson  i.  14,  101 

I'.  Frey  i-  227 

V.  Johnson  i.  590  ;  ii.  591 

V.  Trent   &  Mersey   Navigation 

Co.     i.  035;  ii.  77,  108,  116,  119, 

153,  157    177,  184 

V.  Wrench  ii.  004 


I. 


leely  v.  Grew  ii.  315 

Idaho,  Tlie  i.  20 

Ide  V.  Pierce  i.  77 

Ide  &  Smith  v.  Stanton  ii  517,  582,  583 
Idle  i:  Koyal  Ex.  Ass.  Co.  i.  259,  277 
Illinois  Central  U.  It.  Co.  v.  Coi)eland 

i!.  Cowles 
V.  Frankenburg 
iJ.  John  ion 
Illinois  River  K.  U.  Co.  v. 
Vy  i>.  Frankenstein 
Imhoff  V.  Witmer's  Admrs. 
Imlay  r.  Huntington 
Imperial  Credit  Association,  In  re; 

Hichardson's  case  i.  340 

Imperial  Land  Co.  of  Marseilles,  Er 

fim-te  Harris  ii.  609 

Imperial  Mercantile    Credit  Assoc, 

In  re  ;  Curtis's  Case  i.  350 

Imperial    Merc.    Credit     Assoc,     v. 

Coleman  i.  304,  308,  342,  502,  021 

India,  The  i.  289 

Indiana,  &c.  R.  Co.  r.  Allen  i  2:}4 

Indianapolis  Rolling  Mill  r.  St.  Louis, 


ii. 

178,  187 

ii.  17S 

ii.  171, 

179,  187 

ii.  171, 

178,  187 

Beers 

i.  404 

ii.  412 

s. 

I.  i;i8 

i.  205 

&e.  Railroad 
Indianapolis,  &c.  Co.  v.  Wikox 
Indomitable,  The  i 

Ingham  r.  Primrose 
Inglebright  r.  Hammond 
Ingraham  c.  Disborough 
Ingram  v.  Shirley 
Inhabitants  of  Peru  v.  Poland 
Inhabitants  of  Plantation  No. 

Hall 
Inhnmm  v.  Seymour 
Inse  r.  Pompe 
Insurance  Co.  v.  Bruce 

I'.  Gosslcr 

r.  Hauslcin 

I'.  McCain 


295 
i.  123 

282,  285 
i.  397 
I.  5<50 
!.  4:50 
i.  0 
i.  193 

4  1-. 
ii.  \m 
i.  375 
i.  592 
i.  428 
i.  279 
1.499 
i.  629 


\i 


'I ': 


i:t 


VOL.    I. 


TABLE   OF   CASES   CITED. 


I 


Paoi 

Insurance  Co.  i'.  Railroad  Co. 

ii.  lO'J 

i:  Kikor 

i.  4'J'J 

V.  \U)is 

J.  4!i'J 

V.  liiidi-n 

i.  032 

InternaiiDiml  Company, /«  r« ;  Lcvi- 

ta'»  Cast'  i.  !5i)0 

Irtlanil  r.  Johnson  ii-  278 

Irisli  c.  Nutting      i.  33,  30.  43,  50,  65,  67. 

6^61),  »W,  Ot.06,  71 

V.  Tlie  Milwaukee  &  St.  I'aul  liy. 

Co.  ii.  1()2 

Irons  V.  Maniif.  Nat.  Bank  i  ;{7'.t 

V.  Srnaili.icce  i.  .'53,  47,  64,  08 

Irrland  r.  Livingstone         i.  lUO,  6'Jl,  030 
Irvine  v.  Irvine  i-  12!i 

c.  Watson  i.  671,  574,  570 

Irving  y.  Uiuliardson  i.  057 

i\  Veitcli  ii.  273 

Irwan  i'.  '.Viiliar  i.  41)5, 5'.iO 

Isaac  V.  Andrews  i.  i>0 

.'.  Clark  i.  652 

Isbell   V.  New  York  &  New  Haven 

U.  R.  i.  410 

Isliani  V.  Morgan  ii-  028 

Israel  c.  Douglas  i.  400 

Itliaea  Baptist  Chureh,  Trustees  of, 

r.  Higelow  ii.  542 

Ithel  1-.  I'orter  ii.  588 

Ive  0.  Chester  i.  119 

Ives  ('.  Hartley  i.  95,  !I0 

V.  Hazard  ii.  693,  002 


J. 


J.  B.,  Re 

i.  144 

Jackson  i:  Andeling 

ii.  303 

i\  Anderson 

i.  27,  385 

f.  Burchin 

i.  118.  131 

V.  Carpenter 

i.  118,  131 

i;.  Galloway 

ii.  603 

1'.  Hall 

i.  650 

V.  Henry 

i.  456 

I'.  Jackson 

i.  138 

V.  Ketchuin 

i.  385 

V.  Lowe         ii.  613,  529,  602,  648,  049 

V.  Holiinson 

i-  482 

V.  Home 

i.  450 

r.  Hutledgc 

i.  245 

r.  S')nierville 

i.  650 

V.  Walsh 

i.  450 

I".  Watts 

ii.  424,  602 

I'.  Woolsoy 

i.  465 

Jacmcl  I'acket,  The, 

and  her  cargo 

i.  268 

Jacol)  V.  Kirk      ii.  642,  593,  006,  050,  062 

Jacobs  V.  Hooker 

ii.  121 

r.  Scott 

i.  189 

James  r.  Bixby 

i.  268,  209 

I'.  Griffin 

ii.  454 

V.  James 

i.  61 

V.  Langdon 

i.  142 

V.  Mnysant 

i.  205 

I'.  Miiir 

ii.  549 

V.  Williams 

ii.  273,  520,  571 

James,  Kx  parte 
James  Guy,  The 
Jameson  v.  Tlie  Camden 

It.  U.  Co. 
Jamieson  v.  Waterhouse 
Janvrin  i',  Ma.xwell 
Jardine  i-,  Carron  Company 
Jarman  v.  Woolloton 
Jarrett  v.  Hunter 
Jarrolt  t:  Moberly 
Jarves  v.  Hydder 
Jarvis  r.  Uogers 
Jeanie  Landles,  The 
JetTerys  «•.  Smith 


Paob 

i.  209,  454,  458,  621 
i,  284 
&  Amboy 

ii.  157 

i.  334 

ii.  602 

i.  338,  340 

i.  207 

ii.  020 

i.  428 

i.  67 

i.  105,  107 

i.  268 

i.  506 

i.  16,  97,  98 

ii.  691 

i.  144 


-Jenkins  c.  Kichelberger 

V.  Gaisford 

V.  Morris 

f.  Reynolds  ii.  520,  568,  570,  571,  680 

r.  Usbornu  i.  642,  046 

Jenkyns  r.  Brown  i.  107 

r.  Usborne  ii.  386 

Jenner  r.  Morris  i.  122,  192,  195,  190,  197 

i.  117,  120 


n. 


a 


ii.  605 

699; 


V.  Walker 
Jenners  i-.  Ilavard 
Jeniiess  v.  Met.  H- 1.  Co. 
Jennings  v.  Broughton 

V.  Camp 

t'.  Flanagan 

V.  Rtiiulall 

V.  Webster 
Jenny  Lind,  The 
Jervis  v.  Berridge 
Jessel  V,  Bath  i 

Jcssop  r.  Lutwyclie 
Jesus  College  r.  Bloom 
Jevons  !'.  Roberts 
Jewan  v.  Whitworth 
Jewell  ('.  Scliroeppel 
Jewett  V.  Alton 
Jewsbury  v.  Newbold 
Job  V.  Job 
Joffrey  v.  Walton 
John  V.  Bacon 

I'.  Simons 
John  Ruston's  Case 
Johns  V.  Reardon 

V.  Symons 
Johnson  i:  Ball 

V.  Campbell 

V.  Chadwell 

V.  County  of  Stark 

I!.  Credit  Lyonnais  Co. 

V.  Cuttle 

V.  Uodgson  ii.  824,  343.  344,  351,  360, 
3y7,  449,  477,  478,  493,  689,  (i  ^9, 

673 


1.  148 

659,  502 

i-327 

i.  14,  21 

ii.  311 

i.  133 

287,  308 

i.  290 

621,  002 

ii.  12.  66 

i.  543 

i.506 

ii.  242 

i.  630,  638 

i-  18 

i.  377 

i.  152 

i.  617 

ii.  692 

ii.  92 

i.  268,  269 

i.  146 

i.208 

i.  265 

i.  51 

i.  428 

i.  142 

i.  880 

1.107 

ii.435 


Gallagher 

Goslett 

Harris 

Jackson 

Latlin 
V.  Lansley 
V.  Lines 
V.  McLane 
V.  Meddlicott 


i.  201,  202,  203,  204 

i.  126 

i.  460 

i.  3.34 

i.  396 

i.  643 

i.  122,  162 

i.  16 

i.  146,  147 


TABLE  OP  CASES  CITED. 


u 


Paoi 

458,  tt'21 
i.  284 
boy 
ii.  167 
i.  334 
ii.  602 
338,  340 
1.207 
ii.  020 
i.  428 
i.  «7 
105,  107 
i.  268 
i.  600 
6,  97,  1)8 
ii.  591 
i.  144 
671,  680 
042,  046 
i.  107 
ii.  386 
190,  197 
117,  120 
i.  148 
559,  502 
i.327 
i.  14,  21 
ii.  811 
i.  133 
287,  303 
i.  290 
,  021,  062 
ii.  12,  66 
i.  643 
i.506 
ii.  242 
630,  038 
i.  18 
i.  377 
i.  152 
i.  617 
ii.  592 
ii.  92 
268,  269 
i.  146 
i.208 
i.  266 
i.  61 
i.  428 
i.  142 
i.  389 
i.  107 
ii.435 
;51,  3t)0, 
589,  6  *9, 
673 
203,  204 
i.  126 
i.  460 
i.  334 
i.  396 
i.  543 
122,  162 
i.  16 
146,  147 


Paoi 
ii.  609 
i.  133,  134 
IJoniild  ii-  639 

Smitii  i.  66,  73,  74,  6.iti 

Stoar  i.  105,  107 

Trinity  Church  Society         ii.  692 


.lolinson  V.  Miller 
r.  I'ye 


WlUl'M 

Weill 


Johnston  r.  IJrowne 


Dobie 
V.  KiTshaw 
V.  Lrtrtin 
V.  Miinning 
V.  Miirks 
V.  I'arsuy 
V.  I'ikc 
V.  Henton 
V.  Sumner 


Jolliff  i:  Jolliff 

Jolly  r.  Hi'cs 

Joiifitlian  (loodhue.  The 

Jones's  Case 

Jones  ('.  Ashburnham 

V.  Caswell 

V.  Clifton 

I'.  Colvin 

V.  Cooper 

V.  Crostliwait 

I'.  Weyer 

1'.  Downman 

V.  Kpperson 

V.  PVstiniogR.  Co. 

t'.  Flint 

V.  Foster 


i.  38 

ii.  278 

i.  16,  20,  93,  95 

ii.  244 

i.  691 

i.  379,  392,  :!93 

i.  101 

i.  110,  119,  129 

i.  .309 

i.  154 

i.  369 

i.  168,  160,  101,  103, 167, 

199 

i.  180 

i.  155,  160,  167,  163 

i.  284 

i.  10,  146,  347 

ii.  607 


Paoi 

Jonmcnjoy  Coondoo  i>.  Watson        i.  UtO 
Jordan  c.  Keeblu  i,  247 

V.  Norloii  i.  480 ;  ii.  40,  345,  450 

i;.  I'eiik 

V.  Warren  Ins.  Co. 

V.  Wright 


II.  Young 
Joseph  V.  Knox 
Josephine,  The 
Josliun  Marker,  Tho 
Joy  I'.  Campbell 
Joyce  I'.  I  layman 

r.  McAvoy 
Jiidkins  V.  Walker 
Judson  v.  Adams 

V.  Western  It.  R.  Co, 
Julia  lilake.  The 
Juni't  on  Railway  Co.  v.  Reeve 
Junkins  v.  Simpson 
Justice  V.  Lang 


i.  205 
i.  200 
i.  113 
i.  268 
i.  632;  ii.  4H4 
i.  287 
i.  26!) 
i.  017 

ii.  2:12 

i.  190 

i.  126 

i.  14.101 

ii.  107 

209,  277,  278 

i.  376 

i.  334 

ii.  695 


505 
i.  208 
i.  121 
il.  526,  624 
i.  214 
i.  87 
i.  635 
i.  222 
ii.  89 
ii.  2.32, 2.30 
i.  479,  488,  489,  490,  491, 
492,  493  ;  ii  28 
V.  Frost  i.  205 

V.  Gilbert  i.  14 

V.  Glass  i.  233,  241,  243 

V.  Harris  i.  202 

I'.  Jones  i.  194 

V.  K'mp  i.  95 

V.  Lewis  i.  617 

1-.  Littledale  i.  524,527,  635,  570,  675, 
601  ;  ii.  021 
V.  Lock 

i:  Mechanics'  Bank 
r.  Moore 
V  Morrison 
•  V.  I'almer 
11.  I'erry 

V.  l'lia<nix  Bank 
V.  Ky<le 
V.  Selby 
i\  Shawhan 


i.  33,  51 

ii.  434,  478,  500 

i.  26 

i.  298 

ii.  648,  600,  576 

i.  428 

i.  130 

i.  125 

i.  39,  46,  63,  80,  87 

ii.  412 


Justices  of  Clark  County,  The,  v. 
Paris,  W.  &  K.  River  Turnpike 
Co.  i.  408 

J.  W.  Brown,  The  ii.  63 


Kahn  v.  Smelting  Co.  I.  505 

Kaimes  t;.  Knightly  i.  632 

Kalorama,  The  i.  281,  282,  2H4 

Kaltenbach  v.  Lewis  i.  639,  640 

Kansas  City,  &c.  R.  R.  Co.  v.  Alder- 
man i.  426 
Kant  i\  Kessler  i.  9!> 
Kanfrowifz  v.  Prather                         i.  240 
Karnak,  Tlie       i.  251,  254,  255,  258,  277, 

283,  286 
Karnak,  The,  Droege  r.  Suart  i.  286 

Katzeinberger  v.  Aberdeen  i.  410 

Kaufman  v.  Silioeltel  i.  231 

Kaye  v.  Waghorno  i.  30 

Kayser  v.  Trustees  of  Bremen  i  401,425, 

433 
Kean  v.  Davis 
Keane  r.  IJoycott 

I'.  Robarts 
Kearney  v.  (Mty  of  Covington 

r.  Taylor 
Kearslake  c.  Morgan 


I'.  Sims  i.  0:V2 

V.  Smith  i.  450 

V.  The   Victoria  Graving  Dock 

Co.  ii.  052 

V.  Thomas  i.  452 

V.  United  States  i.  685 

V.  Victoria  Graving  Dock  Co.    i.  575 

r.  Williams  ii.  570 
Joncsboro  City  v.  Cairo  &  St.  Louis 

U.  R.  Co.  i.  419 


i.  522 

i.  118 

i.  460 

i.  435 

i.  457 

i.  634 ;  ii.  272. 

27.'i,  277,  278 

i.  310 

ii.  315,  644 

i.  113 

i.  6:50 

i.  497 

i.  6.56 

i.  027 


Keates  r.  Earl  Cadogan 

Keating  v.  Price 

Keatoii  V.  Davis 

Kcay  r.  Fen  wick 

Keeler  i'.  Insurance  Co. 

Kceley  i".  Noyes 

Keenan  r.  Hollo wav 

Keeney  i\  Good    i.'  150,  161, 216, 220,  232 

Keetch  v.  Sanford  i.  454 

Kehrer  v.  Baxter  i.  625 

Keller  >'.  Tutt  i   18 

Keith  V.  Jones  i.  31 

Keithsburg  v.  Frick  i.  419 

Kekewich  v.  Manning  i.  33,  67,  82 


i   mr-v 


m 


TAULK   OF   CASES  CITED. 


n 


•;!      , 


i| 


Keller  IV  Orr 

('.  I'liillips 
Koli'.')'  V.  Diivis 

(  .  FosttT 

V  Mfrrill 

V.  Miiyor  of  Hrooklyn 
Ki'llick  t'.  Fli'xiiy 
Kc'llo^ri;  '•  FancliiT 

V.  liicliiirdH 
Kt'lly  r.  Minor 

i:  riiilliiM, 
Kelly  &  Co.,  F.r  parte 
KclniT  r.  HaxtiT 
Kciiitik'  i:  Atkins 
lu'incys  I'.  I'roctor 
Kemp  r.  Duwniiuin 

1".  Rose 
Keinpe'a  Lessee  i'.  Kennedy 
Keiiicott  r.  Supervburs 
Kcnn's  Case 
Kennanl  r.  Cass  County 
Kennaway  r.  'I'releaven 
Kennel)unk])ort  r.  Sinitli 
Kennedy  v.  (iorveia 

V.  (Jreen 

V.  Lee  i 

Kennell  v.  Abbott 


Paoi 

i.  2ii4 
i.  !&.-{ 
i.  115 

i.  la 

I.  2ltl 
i.  iVJO 
1.464 

i.  .'J82,  ;j«r> 

i.  a'.t 

i.  r,Hi 

I.  ir,M 

i.  4M 
i.  540,  541 
i.  M2.  M:] 
ii.  321,021 1 

i.  It;.-, 

i.  021 

i.  401 

i.  427,  440 

i.  l'.»5 

i  412 

ii.  rST,  570,  0O.5 

i,  1!« 

1.  523 

i.  45() 

30G ;  ii.  698,  j6«,  GOO 

1.  M 


Kennersley  Castle,  Tho  i.  270 

Kennon  r.  Dibble  i.  161 

Keiirick  v.  Hiirges  i.  024 

Kenser  >•.  Tiiiic  i.  14'.t 

Kent  r.  Freeluilil  Land,  &c.  Co.         i.  841 

V.  Iluskinson       ii.  821,  'AM,  B:2.  84:1, 

396,  448,  6i;J,  6;30,  002 

V.  .lackson  i.  JlOK 

I'.  Walton  i.  48:1 

Kentucky  Hank  v.  Kurtz  i.  00:J 

Kenwortby  /•.  Scbolield    ii.  321.  51:],  62H, 

542,  002,  044 
Kenvon  i .  Tarris  i.  108 

Ken'zil  r.  Kirk  i.  201,  291 

Keokiik,  'I'lic  ii.  50 

Keokuk  Packet  C  >.  v.  Davidson  i.  30O 
Kerhof  r.  The  All;  ,8  Paper  Co.  ii.  301 
Kerns  v.  Piper  ii.  40 

Kerr  v.  Hell  i.  182 

V  Connell  ii.  240 

)'.  liord  nnnpannon  i.  459 

Kersbaw  c.  Ogden  ii.  413,  478,  491 

Kctclien  r.  Lee  i.  128 

Ketcbuni  r.  Duncan 


400 

'2\W 

214 

488 

;181 

ii.  87 

i.  9,  21   021 

i.  42.) 


I. 
ii. 
i. 
i. 
i. 


r.  Kvartson 
/'.  Walswortli 
Key  V.  Goodwin 
KeynsliJim  Co.,  fn  re 
Keys  V.  Belfast  Railway 

V.  Flarwood 

Kevser  v.  McKissan 

Kibble  r.  (iousli        ii.  41S,  424,  420,  4-'7, 

428,  480,  481,  454,  459,  400,  401,  402, 

4t);],  404,  405,  460,  467,  40'J,  471,  472. 

473,  492,  49:5,  494 

Kiildor  r.  Hunt  ii  206 

Kidwell  V.  Kirkpatrick      i.  219,  221.  225, 

230 


Kieffer  r.  Elder 
Kill  r.  Weaver 
Kiigore  r.  Jordan 
Kilsliaw  V.  Jukes 
Kunball  I',  ('unninglifldi 

V.  Kiyes 

r.  Tlionipson 
Kindiall,  The 
lvind)er  c.  Harber 
Kind)erley  r.  Dick 

t'.  Putebin 
Kiniui  r.  Weippert 
Kincaid's  Case 
KinK  I    Hryant 

r.  C(.'nell 

V.  llunifhreys 

V.  Lenox 

V.  Luean 

I'.  Lysle 

v.  Meredith 

V.  Pippet 

I'.  Upton 

V.  Voss 


Taom 

i.  883,  4:14 

i.  80 

i.  120 

J.  468,  477 

i.  407 

,  153,  105,  18^1 

i.  500 

i.  282 

006,  008,  018 

i.  021 

i,  27 

214,  239,  240 

i.  370 

i.  147 

i.  424 

i.  14,  101 

i.  200 

i.  206.  216 

i.  425 

i.  632;  ii.  484 


i.  9 

ii.  552,  553,  654,  562 
i.  2 15,  227 
Kinj;,  The,  1:  The  Justices  of  Essex    i.  022 

V.  Yarpole  i,  022 

Kinffsbury  c.  Kirwnn  i.  496 

Kinjfsford  r.  Great  Western  Ry.  Co.  i.  599 

V.  Merry  i.  331,  549.  042 

Kingsliind  r.  Adams  i.  18,  17 

V.  IJarnewall  i.  452 

Kingston,  f'.r  futile  i.  403,  574 

I'.  Preston  ii.  312 

Kingston's  Case,  The  Duchess  of    i.  195. 

855 
Kinkead,  lie  i.  205,  214 

Kinsley  v.  Norrig  i.  410 

(•.The  State  i.  110 

Kintrea's  Case  i.  390 

Kirby  r.  Coles  ii.  574 

r.  Johnson  ii.  502 

Kirchner  v.  Verms  i.  692 

Kirk  1:  Hartman  i.  600 

Kirkbride  i'.  Lafayette  County  i.  428 
iCirkham  v.  Marter  ii.  577 

Kirkpatrick  r.  Stainer  i.  511,  635 

Kirksey  i-.  Friend  i.  206 

Kitchen  v.  Lee  i.  129,  130,  132 

V.  Place  i.  307 

('.  St.  Louis,  &c.  R.  W.  Co.  i.  298 
Kleinioort  v.  The  Cassa  Marittima    i.  251 


Klein  v.  Currier 
Klein  wort  v.  The 

(Geneva 
Kline,  Appeal  of 

r.  lieebe 
Klinitz  V.  Surry 


Knartp  '•.  Smith 
Knatcbbull  1:  Hallett 
Knight  r.  Barber 

«;.  Cambers 

V.  (Corporation  of  Wells 

V.  Crockford 

V.  Fitch 


ii.  536 
Cassa  Maritima  of 

i.  283 

i.  87 

i.  129 

ii.  322,  326,  327,  425, 

487,  493 


i.  214,  231 

i.  463,  574 

ii.  222 

1.643 

i.  424 

ii.  611,  523,  587,  692, 

594 

L643 


TABLE  OP   CASES  CITED. 


:;.  .112.  .']i:i,  .114,  4K1 
.']|.').  :i.')l,  4;JI.  4',iH,  4»i». 

V.  Proviilcnc.'  &  WorceHtor  U.  II. 


Kniiflit  I',  Iloppor 
'.  Mann       ii 


Co. 

11.  l(i:t 

Knott's  Adin'r*  i    llogai 

3          i.  4;5,  75,  H2 

Kno.x  I'.  AHpinwiUl 

i.  407.  40H 

I-.  niishi'll 

ii.  im,  11»7 

r.  t'liiniibfll 

i.  4H2 

1'.  .IiM'k.^ 

i.  4(11 

I'.  Kint{ 

Ii.  odit 

V.  Simmons 

i.  4!t7 

Knox  Co.  V.  Aspinwull 

i.  600 

Knox     (;ounty     Court 

I'.     UnitiMl 

Stiiti'S 

i  422 

KooliliT  r.  Bliiek  UivcT 

Falls  Co.    i.  2117, 

3();5,  ;{()& 

Kortri(,'lit  v.  IJank 

i.  •im.  ;{'.t5 

Konntz  r.  Ki'iinody 

i.  400 

Kriitz  r.  Stocks 

i.  24 

Krciulir  i:  Woolcott 

ii.  122.  I;i0 

Kriln  v.  .Icmt'H 

ii.  »i4;{ 

Krii^'sfonl  V.  Mi-rry 

i.  flJO;  ii.  Wo 

Krohn  r.  Hantz 

ii.  270,  277.  514 

Kroiiskop  V.  Slioutz 

i.  222 

Kruiiim  V.  Bi-acli 

i.  2:11 

KiiltKTg,  In  re 

1.(141 

Kiilni  e.  Gatos 

ii.  207.  275 

Kiituher  v.  Williams 

i.  22S 

Kiitti     ".  Smith 

ii.  250 

Kyi'          he  liiinruns  R. 

R.  Co.        ii.  lOH 

Ky            SuwiTcropp 

i.  502,  5():i.  5(il, 

507,  508 

L. 


Lacius-iade  i'.  Wh.ite  i.  543 

Lacfv,  AV  imrte  i.  209,  468,  450,  4(>4 

V.  Hill  i.  682 

I'  Hill,  Crowley's  Claim  i.  340 

Lacon  /•  Illjijfins  i.  27(5 

Luild  c.  Ciirtw  right  i.  ;J»8 

1^.  Franklin  i.  41U 

V.  Grlswold  i.  500 

V.  Lynn  i.  194 

V.  King  il.  043 

V.  Town  of  Franklin  ii.  40 

LadiR'  V.  Griffith  ii.  178,  214 

i\  Soymour  i.  18 

Lady  Franklin,  The  ii.  63,  55.  50 

Laffan  r.  Naglee  i.  505 

Laicock's  Cas-  1.  010 

Lain','  !•.  Lee  ii.  571.  581 

Liiinl  V.  riin  ii.  315 

Liiinar  •.  Mieon  i,  401 

I/iinar's  Fxo'r  v.  Hale  i.  50.3,  505 

Lamb  v.  Attenborough  i.  645,  04(1 

V.  Crafts  i.  10 

I'.  Durant  i.  482 

V.  Mills  i.  ()20 

Lamprt  r.  Heath  i.  638 

L'Anioroux  v.  Crosby  i.  138,  148 

'•  '■ovild  ii.  602 

Lampleigh  v.  Rraiihwait  i.  560 


WW 


Paoi 


Lamprell   i-.   The    BiUericay    Union 

i.  318.  320 
Lancashire  Wagon  Co.  v.  Fitzhugh 

i.  552,  667 
Lancashire  &  Yorksiiire  Uank  c.  Jee 

i.  205 

ii.  247 

ii.  018 

ii.  222 

139.  140 

i.  151,  152,  158 

i.  2(W 

i.  234 

23,  24 ;  ii.  205 

i.  2(57 


.  Ex  parte 
V.  Moore 


i. 


Lancaster  r.  Kve 

f.  WalHh 
Lancaster  Canal  Co, 
Lancaster  (.'o.  Hank 
Lane  i*.  Ironmonger 

t<.  Kingsbury 

i»,  Schlcmmer 

V.  Shackford 
Lane.  In  tlie  Kobcrt  L. 

Land  Credit  Co.  of  Ireland  v.  Lord 

Fermoy  i.  317,  013 

Lander  d.  Smitlifleld  School  District 

i.  410 

Lang  r.  Whidden  i.  142,  140 

Langdale.  I'.r  parte  i.  4(58 

Langcr's  ('ase  i,  .3.')6.  304 

Langford  v.  Adni'x  of  Tyler  ii.  312,  313, 

316 

r.  Gascovnc  i.  017 

Langtort  v.  Adrn'r  of  Tiler  ii.  280,  313 

Langridge  c.  Levy  j.  310.  6'.l!» 

Langton  v.  Iliggins  ii.  420.  4'.i2 

V.  Waring  i.  (ilfl 

Langwortby  v.  Smith  ii.  318 

Lanycm  v.  illancliard  i.  571 

Lajipin  v.  Insurance  Co.       •  i.  4!H) 

La  Kue  v.  Gilkyson  i.  139 

Laslibrook  v.  Tvler  i.  199 

Latham  r.  Atwood  ii.  223,  232 

Lathrop  v.  Hampton  i.  451 

i\  Kneeland  i.  301 

La  Touche  v.  La  Touclio  i.  241 

Lattimore  i>.  Harsen  il.  044 

Laughlin  v.  Tlie  Chicago  &  N.   W. 

Ky.  Co. 
Laura,  The  Barque 
Laurel,  The 


Lavere  r.  Gilkyson 
Law  V.  Cross 
«'.  Hodgson 
I'.  The  People 
V.  Wilkin 
Lawruson  r.  Mason 
Latvrence's  Case 
Lawrence  v.  Dale 
V.  Lawrence 
V.  Miriturn 
Sinnanien 


1. 


I. 


I. 


Winona  &  St.  Peter  \\.  \i 


1. 


Lawson  v.  Lawson 

I'.  Shotwell 
Lawton  r  Lawton 

V.  Salmon 
Laythoarpe  v.  Bryant       , ,  -.  ., 

637,  503,  670,  594,  595,  699,  602,  (500, 

612,  613.  619 

Lazarus  r.  Bryson  i.  465 

Lea  I'.  Exelby  U.  812 


ii.  101 
i.280 
i.  255 
i.  140 
295,  626 
i.  301 
i.  429 
111,  112 
ii.  009,  010.  Oil 
330.  370 
ii.  365 
i.  186 
i.  272 
242,  243 
Co. 
ii.  162 
33,  34,  80,  37 
i.  2(K) 
ii.  245,  247.  249 
ii.  247 
ii.  511,  512.  515, 


I. 


233, 


xprn 


llv 


TABLE   OP  CASES  CITED. 


;:!:-( 


^  ,;>(■ 


li:,!    ! 


Paoe 

i.  627 
502 


Leach  v.  Boftrdslce 

r.  Leacli 

Ijeadbetter  v.  Farrow  i.  530,  532,  630 

Learoyd  r.  Kobii.son  I.  638,  641,  im 

Leather  Cloth  Co.  v.  Hieroniniua    ii.  286. 
686,  638,  63U,  040,  666 
Leavitt  v.  Curtis  i.  436 

I'.  Oxford  &  G.  S.  M.  Co.  i.  298 

Lebeau  v.  General  Steam  Nav.  Co. 

ii.  13 
i.  624 
i.  046 
i.  268 
i.  27 
i.  105 
i.  562 
ii.  673 


Leber  v.  Kauffelt 
Leckey  v.  McDcrmot 
Leddo  1^.  Hughes 
Ledyard  v.  Uibbard 
Lee  V.  Atkinson 

Bayes 

Dick 

Gaskcll 

Griffin 

Jones 

Muggeridge 

Munroe 


V. 
V. 
V. 
V 
V 
V. 
V. 

V.  Risdon       i.  0, 17,  21 ;  ii 


ii.  261,  252 

ii.  201,  263,  204 

i.  610 

i.  241. 

i.  584,  586 


248,  250, 
252 

r,  Tannerbaum  i.  246 

Leeds  v.  Vail  i.  153 

Leeds,  Duke  of  i*.  Earl  Amherst       i.  607 
Lees  V.  Nuttall  i.  460,  502,  606 


I. 

ii.  513,  514,  527 
i.  627,  632,  636 
i.  109 
i.  130 
i.  106 
i.  6'.0 
i.  205 
Eufaula  National  Bank 

i.  238 
Lehigh,  Steamboat  v.  Knox  i.  209 


V.  Whitoomb 
Le  Fevre  i>.  Lloyd 
Legard  v.  Johnson 
Lcgay  V.  Maraton 
TjCgg  V.  Evans 
T.-eggat  V.  Reed 
Leijh  V.  Legh_ 
Le  Grand  v. 


Lehigh  Co.  v.  Field 
Lehor  v.  Beaver 
LeifcliiM's  Case 
Leigh  I'.  Macaulay 

V.  Pat'.erson 
Leinbach  .•.  Templin 
Leitch  V.  Wells 
Leitz  V.  Mitchell 
Lemayne  f.  Stanley 
Lenio'id  i-.  Arms 
Ljncy  t'.  Hill 
Lennard  v  Robinson 


Lent  V.  Padlcford 
Leonard  v.  Leonard 
VreJenburg 


i.  99 

i.  190 

i.  337 

i.  46ci  451 

i.  14  18,  23 

i   223,232 

382,  iiSS,  385,  434 

i.  216,  220 

ii.  684,  586 

i.  235 

i.  582 

i.  515,  .316,  530, 

538,  6^^,  641,  675 

ii.  667,  002 


V. 


1.  138,  101 

ii.  548,  574,  575,  580, 

622,  623 

Lennidas,  The  ii.  66 

Lerned  v.  Wannemacher   ii.  569,  628.  043 
Leroux  i'.  Brown  ii.  670 

I/e  Roy  V.  Beard  i.  572 

Le  Sassier  i-.  Kennedy  i.  374 

Lester  r.  Jewett  ii.  614 

i;  McDowell  i.  99 

Lestralle  v.  Perrera  i.  586 

Leuckart  v.  Cooper  i.  641 

Levell  V.  Newton  i.  214 


Paoi 

i.  98 

i.  129 

I.  367 

686 


Leven  v.  Smi^h 

Levering  v.  Heighe 

Levick'a  Case  i. 

Levistones  v.  Landreaux  i, 

Levita's    Case,  Jn  re   International 

Co.  I  356 

Levy  V.  Baker  i.  188 

V.  Langridgc  i.  610 

V.  Merrill      ii.  537,  552,  653,  554,  562 

i.  469 

ii.  664 

i.  422 

i.  428 

i.  312,  607 

i.  228 

i.  29 

i.  206 

i.  200 

1.  133, 134 

ii.  278 

1107 

i.  541 

i.  161 

ii.  691 

i.  595 

i.  193 

i.  412 

i.  160 

ii.  7,  28,  62 

i.667 

ii.  614 

i.  160, 173 

i.  331 


Lewis,  Kx  parte 

V.  Brass 

v.  City  of  Shreveport 

V,  Commissioners 

V.  Uillman 

r.  Jotms 

V.  Jones 

V.  Lee 

V.  Lewis 

V.  Littlefield 

V.  Lyster 

V.  Mott 

V.  Nicholson 

I'.  Perkins 

r.  Roberts 

y.  VV.llace 
Lewiston  v.  Harrison 
Lexington  i-.  Butler 
Lichtenberger  v.  Graham 
Lickbarrow  i-.  Mason    i.  292; 
Lidaways  r.  Todd 
Liddle  i-.  Needliam 
Liddlow  i;.  Wiliuot 
Life  Assoc,  of  Kngland,  In  re 


Life  &  Fire  Ins, 

Ins.  Co. 
Life  Assoc,  of 


Co.  V.  Mechanic  Fire 

i.  600 
Scotland  v.  Liddall 

i.  455,  466 
ii.  239 
ii.  234 
i.  143 
i.  147 
i.  693 
365,  455,  494 


11. 


Liford's  Case 
Liguins  V.  Inge 
Ligiit  V.  Liglit 
Lightfoot  V.  Heron 
iniii-  c.  Legh 

Lillywhite  v.  Dcvereux     ... , , 

Lii.nehouse  Works  Co ,  In  re ;  Coates's 

Cise  i.  9 

Lincoln  t^.  Battle  i.  695 

V.  Euckmaster  i.  139,  146 

V.  Iron  Company  i.  427 

V.  Rowe  i.  240 

Lind  V.  Tlie  County  i,  407 

Lindensclmiidt  v  Lindenschmidt  i.  188 
Lindsay  Petroleum  Co.  v.  Uurd  i.  342, 621 
Lindsey  v.  Lindsey  i.  138 

Linseed,  Bags  of  i.  636 

Lippincott  v.  Carriage  Co.  i.  297 

V.  Hopkins  i.  2.36 

V.  Leeds 
Lister  t;.  Lister 
Litchfield's  Case 
Litchfield  i^.  Ballou 

1'.  Cudworth 
LitBon  V.  Brown 
Little  V.  Pool 

I'.  Semple 
Littlefield  i-.  Shee 


i. 
i. 
i. 
i. 
i. 
i. 


2,36 
469 
128 
416 
465 
164 

i.  801 
ii.  214 

i.  116 


TABLE  OF  CASES  CITED. 


Iv 


i.  98 
i.  129 
1.  367 
i.  586 
}nal 
i.  356 
i.  188 
i.  610 
554,562 
i.  469 
ii.  664 
i.  422 
i.  428 
312,  607 
i.  228 
i.  29 
i.  206 
i.200 
.  133,  \M 
ii.  278 
\.  107 
i.  541 
i.  151 
ii.  691 
i.  595 
i.  193 
i.  412 
i.  150 
1.  7,  28,  62 
i.  667 
ii.  614 
i.  160, 173 
i.  831 
;Fire 

i.  600 

iddall 

i.  455,  466 

ii.  239 

ii.  234 

i.  143 

i.  147 

i.  593 

,,  455,  494 

.tes'a 

i.  9 
i.  595 
1.  139, 146 
i.  427 
i.240 
i,  407 
It  i.  iSS 
Ii.  342, 621 
i.  138 
i.  635 
i.  297 
i.  236 
i.  236 
i.  45'.t 
i.  12H 
i.  416 
i.  465 
i.  164 
i.  801 
ii.  214 
1.116 


Paor 
Little  Rock  v.  National  Bank  i.  433 

Littler  v.  Holland  ii.  530,  625 

Livermore  v.  Uerschell  i.  133 

Liverpool  Adelphi    Loan  Assoc,  v. 

Fairhurst  i-  133, 134 

Liverpool  Borough  Bank,  The,  v.  Ec- 

cles  ii-  516,  563,  698,  600 

Livingston  v.  Darlington  i.  417 

V.  FciuIronOo.  i.  316 

Lizzie,  The  i.  253,  254,  255,  258,  269 

L.  J.  Farwull,  The  ii.  63 

Lloyd  c.  Bank  i.  389 

V.  Chune  5.  69,  70 

V.  Fulton  i.  208 

V.  Guibert  i.  251,  274,  276,  283 

f.  The  West  Branch  Bank    i.  395, 601 

t'.  Wright  ii.  503 

Load  I'.  Green  i.  549,  550 

Loan  Association  v.  Topeka     i.  416,  -.'.7, 

424.  425 
Lobb  I'.  Stanley    i.  130;  ii.  513,  687,  691, 

649 
Lobdell  V.  Baker  •    ii.  40 

Lochiel,  The  i.  255,  284 

Lock  V.  Venables  i.  344 

Lock  Co.  V.  Haihoad  ii.  159 

Locke  V.  Lewis  i.  600 

I'.  Stearns  i.  494 

Lockett  V.  Wray  i.  203,  204 

Lockhart  v.  iieilly  i.  454 

Lockwood  i\  Middlesex  Mut  Ass. 

Co.  i.  499 

V.  Sturdevant  i.  461 

V.  Thomas  i.  165 

Lockyer  v.  Ferryman  i.  385 

Lodge  I'.  Siuionton  i.  385 

Lonbottom's  Ex'r.  v.  Babcock  i.  454 

London  &  Mediterranean  Bank,  In  n ; 

Wright's  Case  i.  348 

London  &  North  Western  Ry.  Co. 

V.  Glyn  i.  667 

London  &  Provincial  Starch  Co.,  In 

re;  Gower's  Case  i.  349 

London  Assuranc  Co.  v.  Dronnen    i.  499 
London,  City  of,  w  Wood  i.  622 

London  Chartered  Bank  of  Australia 

I'.  Lampiere  i.  201,  203,  204 

London  Dock  Company,  The,  v.  Sin- 

nott  i.  318 

London    Financial    Association     v. 

Wrixliam  i.  387 

London  (Jas  Light  &  Coal  Co.,  The, 

r.  Nicliolls  i.  317 

London  More.  Discount,  The  i.  308 

Long  V.  Hartwill  ii.  044 

V.  Millar    i.  575 ;  ii.  598, 607, 021, 664, 

666 
Longbotham  v.  Berry       ii.  245,  246,  247, 

248 
Longcrgan  v.  Stewart  i.  15, 92, 93, 96, 97 
Lonycst's  Adin.  i'.  Tyler's  Ex'or  i.  206 
Longridge  v.  Oorville  ii.  517 

Looniis  r.  Green  i.  20 

V.  Murshall  i.  468,  469,  492,  601 

w.  Newhall  i,  115 


PAoa 

Loomis  V.  Spencer  i.  139 

V.  Wainwrifelit  i.  13, 17 

Loon,  The  ii.  52,  56 

Lord  V.  Governor  <l  Co.  of  Copper 


Miners 

V.  Parker 

V.  Thompson 
Lord  Audley's  Case 
Lord  Ched worth  v.  Edwards 
Lord  Cli?etworth  c.  Kdwards 
Lord  Cochrane,  The 
Lord  Donegal's  (!'ase 
Lord  Dudley  r.  Lord  Warde 
Lord  Ormond  w.  Anderson 


i.  308 

i.  222 

i.  166 

i.  624 

i.  27 

i.  446,  448 

i.  258,  284 

i.  145 

ii.  245,  247 

ii.  511,  563, 

694,  602 

Lord  Selsey  v.  Rhoades  i.  452 

Lord  Shipbrook  v.  Lord  Hinchbrook  i.  617 

Loring  v.  Davis  i.  630 

V.  Gurney  i.  527,  528 

Lorymer  v.  Smith  ii.  426,  451 

Lotiirop  V.  Adams  i.  494 

Lottawanna,  The  i.  287 

Loud  n.  Ijoud  i.  190 

Louden  V.  Birt  ii.  268, 269,  275,  276 

Louisiana  v.  Pillsburv  i.  429 

V.  Taylor  '  i.  429 

V.  Wood  i.  429 

Louisiana  National  Bank  t;.  Laveille   ii.  60 

Louisville  i-.  Hyatt  i.  436 

Loiisviile  &  Nashville  R.  R.  Co.  v. 

Campbell  ii.  196 

V.  The  County  Court  of  David- 


son 

i.  438 

V.  Weaver 

ii.  197 

Louviert  v.  Laubray 

ii.  278 

Love  V.  Francis 

i.66, 

73,  75,  87 

V.  Harvey 

i.  496 

V.  Loynehan 

i.  193 

Lovell  V.  Briggs 

i.  466 

V.  Martin 

i.  100 

Lovelock  V.  Franklyn 

ii.  303 

Low  V.  Andrews 

i.  108 

V.  Martin 

i.  26 

V.  Treadwpll 

ii.  316, 644 

Lowe  V.  London  &  Northwestern  liy. 

Co.  i.  320 

Lowekamp  v.  Kocchling  i.  228 

Lowell  V.  Boston  i.  416 

Lowell  Wire  Fence  Co.  v.  Sargent  ii.  107 

Lowry  •.  Cobb  i.  504 

>!.  Commercial,  &c.  Bank  i.  403,  406 

Lowtl.er  v.  Lowther              i.  87,  45),  502 

Lozear  v.  Shields  i.  140 

Luanl's  Case  i.  403 

Lubbock  r.  I'otts  i.  543 

Luby  r.  Hudson  Biver  R.  R.  i.  587 

Lucas  I'.  Bcale  i.  536 

V.  De  la  Cour  i.  570 

V.  Dorrcin  ii.  453,  477 

I).  Dixon  ii.  070 

V.  JanifS  ii.  592 

V.  Lucas  i.  33 

Luce  i\  Prescott  i.  638 

Lucy  V.  Monfiet  ii.  423, 473 

Luders  v.  Anstcy  ii.  644 


\m  ii:^ 


Jl 

:!.      i 

ii   -ii 

! 

V 

■■■{ 

i'i 

; 

z 

i 

i    • 

■)    1 

■  ■' 

! 

l-\ 

I 

» 

M 


TABLE  OF  CASES  CITED. 


Paoi 

Luey  V.  Bundy 

i.  123 

Lulu,  The 

i.  267,  278,  281 

Lumley  v.  Palmer 

ii.  635 

Lumsden'c  Case          i. 

122,  128,  349,  373 

Lund's  Case 

i.  337 

Lupton  V.  Almy 

i.  457 

V.  White 

i.  26,  446,  448,  450 

Luxemburg  R.  R.  Co.  v 

Macquay    i.  803, 

305 

i.  432 

Lyaiis  I'.  Munson 

Lyle  V,  Shiniiebarger 

ii.501 

Lynch  v.  Dunsfurd 

i.  615 

Lynde  v.  The  County 

i.  434,  442 

Lyndon  v.  Gorham 

i.497 

Lyne  v.  Siesfleld 

i.  543 

Lyon  V.  Cuibertson 

L  06.  496 

V.  Lenon 

il6.  94 

V.  Williams 

i.  601 

Lyons  v.  Barns 

i.  100 

Lysaght  v.  Walker 

U.  571 

M. 

Maans  v.  Henderson    i.  463,  674,  697,  660 
Maber  v.  Maber  ii.  274 

Maberley  v.  Sheppard      ii.  340,  354,  447, 
460,  465,  476,  491,  604 
Mabie  v.  Bayley  i.  77 

Maccord  v.  Osborne  i.  127 

Mace  V.  Cadell  ii.  481 

Macey  i-.  DeWolf  i.  482 

MacDonald  t;.  Longbottom      ii.  6 ?1 ,  650, 

6''3,  671 
Macgregor  v.  Dover  &  Deal  Hallway 

i.  424 
Machu  V.  The  Southwestern  Ry.  Co. 

ii.  80 
Mackay  v.  Commercial  Bank  of  New 

Brunswick    i.  388,  389,  340,  603, 
606,613,617 

I'.  Ramsay  i.  694 

Mackintosh  v.  Mitcheson  i.  265 

V.  Trotter  ii.  262 

Mackley'H  Case  i.  391 

Maclaren      "^tainton  i.  344 

Maclean  v.  i.inn  i.  623 

MacNaughton  v.  Osgood  i.  300 

Macnee  I'.  Gorst  i.  638,  641 

MacNellie  >'.  Acton  i.  213 

Macon  Comity  v.  Shores  i.  412 

Macrcadv  r  Thorn  i.  265 

Macy  i:  Combs  i.  468,  4»2 

V.  Tlie  Wlialing  Ins.  Co.  i.  528 

V.  Wlieeler  i.  267 

MRd<li'f()rd  r.  Anstwick  i.  602,  603 

Madd.Mi  .-•.  White  i.  122 

Maddox  V.  Miller  i.  119 

r.  Sinimens  i.  142 

Madison  Avenue  Baptist  Chiirch  v. 

The  Oliver  Street  Baptist  Church  i.  19 
Madison  County  v.  People  i.  428 

Magee  v.  Atkinson     i.  624,  627,  685,  570, 

601 
Magruder  v.  CoUon  i.  396 


Mahan  v.  United  States 

Maher  v.  Chicago 

Mahon  v.  Gormly 

Mahony  v.  Kekul^ 

Maillard  v.  The  Duke  of  Argyle 

Maine's,  Sir  Anthony,  Case 

Main  waring  v.  Leslie   i.  " 

Mair  v.  Glennie 

Malcolm  v.  Scott 

Mallalien  v.  Lyon 

Malley  v.  Insurance  Co. 

Mallory  v.  Burnett 

V.  Willis 
Malvin  v.  Christoph 
Manby  t^.  Long 

i; 


Vaom 

ii.  673 

i.  486 

i.  236 

i.  616 

ii.  273 

i.  9 

161, 162, 165,  192 

L468 

i.  591 

i.  163 

i.  499 

ii.  122,  214 

i.  14,  93,  100 

i.  232 

i.  626 

Scott    i.  110,  142,  149,  152,  155, 

158,  160, 182, 106,  248;  ii.  3! 2 

Mandel  v.  Peay  i.  494 

Manhattan,    The,    Brass  &  Manuf. 

Co.  i  238 

Manhattank  Bank,  The,  v.  Lydig     i!  298 
Mann's  Case  i.  128, 129,  345,  850 

Mann  v.  Forester  i.  468,  674 

Manning  v.  Gill  '        i.  140 

V.  Newnham  i.  261 

Manrow  v.  Dunham  ii.  636,  616,  623 

MansUeld  v.  Converse  i.  15,  101 

Mant  I'.  Collins  ii.  246,  247 

Manufacturing  Company  v.  Bradley  i.  303 
Maples  ».  Sydney 
Marbury  u.  Brooks 
March  v.  Eastern  Railroad  Co. 
Marcy  v.  Amageen 
V.  Clark 
V.  Township  of  Oswego 


ii.  617 
i.494 
i.  300 
i.  77 
i.  396 

i.  421,  427, 

432 

ii.  66 

i.  651,  655 

i.  261.  277 
i.  107 
i.  186 
i.  354 

i.  122,  106 
ii.  623 


Marengo,  The 

Marfield  o.  Goodhue 

Margaret  Mitchell,  The 

Mark  i'.  Attenborough 

Marker  v.  Murker 

Marino's  Case 

Marlow  v.  Pitfield 

Marquand  v.  Hipper 

V.  The  New  York  Manuf.  Co.    i.  497 

Marquardt  v.  Flangher  i.  243,  244 

Marquis  of  Abercorn,  The  i  337 

Marquis  of  Abercorn's  Case  i.  856 

Marr  v.  Enboe  i.  428 

Marseilles  Extension  Railway  Co.,  In 
re,  i.  375.  621 

Marsh  v.  Dodge  i.  298 

V.  Fulton  County  i.  410,  412,  414,  625 
V.  Hyde        ii.  286,  287,  303,  345,  351, 
4.S5,  40;-),  602 
V.  House  ii.  435,  405.  602 

»'  Whitman  i.  otW 

V.  Wbitniore         i.  294.  295,  304,  4.55 
V.  Witkimm  i.  16,  KH) 

Marshall  t\  Beverley  i  404 

V.  Green       ii.  238,  8.W.  380.  424.  450. 

473,  474,  476.  4',tl 

V.  Ferguson  ii  aOS 

V.  Lynn        ii.  315,  606,  632,  6:{3,  t;;5ti, 

638,  643 


TABLE  OP  CASES  CITED. 


Ivii 


Marehall  v  Ratton 

11.  Siilinian 

V.    York,  Newcastle 
liy.  Co. 
Marston  i^.  Allen 

V.  Marston 

V.  Swett 


Paoi 
i   140 
i.  41U 
&  Berwick 

ii.  90,  01 

i.  397 

i.  61,  77.  82 

i.  1208 


Martell  v.  The  Schooner  Rose  &  her 


Muster 
Martin  c  Byrom 
V.  Farnsworth 
V.  Funk 
11.  Gale 
i;.  Matliiot 
V.  Mayo 
t>.  Mitchell 
V.  Koe 


ii.  52 

i.  130 

li.  40 

i  73,  77 

i  122 

i.  07,  90 

i.  118,  180 

i.  353 ;  ii.  52U 

ii.  248 


V.  The  Great  Indian  Railway  Co. 

ii.  88,  80 
V.  Webb  i.  605 

Martin's  Admr.  v.  The  United  States 

i.29 

Martini  ».  Coles  i.  642,  050 

Martinez  b.  Ward  i  228 

Martins  c  Gardiner  ii.  602 

Martrick  r.  Linficld  i.  47,  69 

Marty  n  v.  Gray  i.  600 

Marvin  v.  Ingles  i.  139 

I'.  Wallis     ii.  390,  393,  .304,  428,  450, 

170,  476,  401,  (500 

Marv,  The  Brig  i.  272 

Mar.V  Ann,  The  i.  284,  200 

Marve  r  Parsons  i.  413 

Marx,  Matter  of  i  110 

Mason,  In  le  i.  14') 

V.  Harris  i  308 

V.  Lotiirop  i.  11 

V  I'ritchard  ii.  571,  603 

«;.  The  H.  Witbeck  Company   ii.  301 

V.  Wiiite  i.  24 

V.  Wickersham  ii.  412 

Maspons  i>.  Mildred  i.  673 

Massey  i\  Banner  i.  447,  451 

V.  Beecher  ii.  44 

r.  navies  i.  607,  608 

Masternian  i-.  Mabcrly  ii.  663 

Matlicr  r.  Fraser         ii.  248,  244,  246,  248 

Miithewman's,  Mrs.,  Case  i.  202,  203 


Mrtt.'ion  1".  Wharani 
Mattliews  i\  Baxter 

V.  Brise 

I".  Cowan 

V.  Draf^and 

('.  Whittle 
Matthewson  i\  Clarke 


n.  626 
i.  139,  147,  160 
i.  617 
i.  1*5 
i.  460 
i.216 
1.  497 


ii 


Mattliios5i'ii  &  Weieher's  Refri^.  Co. 
V.  Mc  Malion's  Admr. 

Mattice  v.  Allen 
Miutiri(jly  v.  Nye 
Mattock  i:  Kinglake 
Mauri  v.  Hefferman 
Mttvor  IV  I'yne 
Miuvaon  V.  Beane 
Maxted  V.  Morrii 


i.  130,  140, 

ii  307,  603 

305,  iVW 

i.  208 

ii.  312 

i.  636 

ii.  2IMI 

i.  VV) 

i.  324 


Maxted  i*.  Paine 
Maxwell  i^.  Brown 

V.  Montacute 
Maxwell's  Trusts,  Re 
May  V.  Le  Claire 

i;.  Skey 

t;.  Sloan 

V.  Smith 

I'  Thompson 
Maydwell  v.  Carroll 
Mayer  c.  Muscatine 
Mayfield  f.  Wadsley 
Mayflower,  Tiie 
.Mayhew  v.  Thair 
Maynard's  Case 
Maynard  v,  Katon 
Mayo  I'.  Snow 
Mayor  v.  Kschback 

V.  Lord 

V.  Hay 

V.  Reynolds 


Paoi 

132,  322,  323,  344 

ii.  4;i5 

ii  644 

i.  344 

i  607 

i.  195, 196,  197 

i.  4 

i.  205 

ii.  606 

ii.  266 

i.  407 

ii.  227, 228,  261 

ii.  66 

i   101 

i.  10 

i.  l;30 

i.  267 

i.585 

i  600 

i.  414,  4m 

i.  585 


Mayor  and  Burgesses  of  Carmarthen, 

The,  I'.  Lewis  i.  320 

Mayor  of  Carlisle  i'.  Wilson  i.  26 

Mayor  of  Hereford's  Case,  The         i.  622 
Mayor  of  Lyme  Regis,  The,  v.  Har- 

ley  ii.  600 

Mayor,  &o.,  of  Ludlow,  The,  v.  Charl- 
ton i.  318 
Mayor,  &c.  of  Stafford,  The,  v.  Till  i.  317, 

320 
McAdam  v.  Walker  i.  137 

McAllister  v.  Barry  i.  316 

McAlpin  V.  Lee  i.  14 

McAnaily  v.  O'Neal  i.  161 

McCabe  v.  McKinstry  i.  08 

McCaleb  v.  Crichfleld  i.  205 

McCallie  o.  Mayor,  &c.  i.  428 

McCarthy  v.  Henderson  i.  132 

V.  Keaman  i.  86 

V.  Terre  Haute,  &c.  R.  R.  Co.   ii.  211 
McCarty  i".  The  Steam  Cotton  Press 


Co 

V.  Vickf^ry 
McClain  v.  Dtiy'is 
McClaren  v.  Franciscus 
McClenaghan  v.  Brock 
McClintock  v  Laing 
McClure  c.  Township  of  Oxford 
McClnskey  v.  Webb 
McComb  i>.  Dunch 
McCombio  v.  Davis 
McCombs  i:  McKennan 
McConnell  v.  Brillhart 

r.  Hughes 
McCool  V.  Smith 
McCormick  c.  Littler 

«;.  Merth 

V  Trotter 
McCoy  V.  Hyatt 

V.  Huflmann 

r.  Morrow 
McCrackcn    v.   City  of 

Cisco 
McCready  v.  Ilolmea 


i.468 

i.  466 

i.  139 

i  396 

ii.  40 

ii.  666 

i.  441 

i.  4'A 

i  40( 

i.  105,  106,  tiSO 

643 

581 

i.  !H 

i.  423 

i.  140 

i.  244 

i.  31 

i.  217,  210 

i.  12.3, 126 

i.  461 

San    Fran- 

i.  412,  625,  626 

ii.  66 


II. 
ii. 


Iviii 


TABLE  OP  CASES   CITED. 


m  I* 


Paoc 

McCreary  v.  McCreary 

i.  29 

MeCreiglit  v.  Stevens 

i.  873 

McCrillis  v.  Bartlutt 

i.l48 

McCubbii.  V.  Patterson 

i.  190 

McCullocli  V.  Dasliiell 

1.497 

McCullouxti  ')■  Moss 

i.  378 

V.  Porter 

i.  98 

V.  Hoots 

i. 

628,  66t5 

McCutclieon  v.  McGahay  i 

152, 

164, 168, 

181, 

188,  189 

V.  Miller 

i. 

382,  384 

McDonald  v.  Berwick 

ii.  614 

V.  Lynch 

i.  24 

McDonnell  r.  Clmmbers 

ii.  692 

McDougall  V.  Gardiner 

i.  308 

McElroy  v.  Buck 

ii.  649 

McEwan  v.  Smith 

i.  6-16 

McKwen  v.  Morey 

i.  96 

McFadden  v.  Vincent 

i.  142 

McFarland  v.  Crary 

ii.  280 

McFarlane  v.  Norris 

i.  674 

McFarrow's  Appeal 

ii.  681 

McFerran  v.  Kinney 

i 

150,  220 

McGahay  v.  Williams         i 

108 

181,  188 

McGarrahan  v.  Mining  Co. 

i.  420 

McGau  f.  Marshall  i.  131 

McGee  i-.  McGee  i.  186,  200 

McGenness  v.  Adriatic  Mills  i.  604 

McGinn  v.  Holmes  ii.  278 

McGowan  v.   American    Tan   Bark 

Co.  i  498 

V.  Dyer  i.  590 

McGrath  i;  Clark  i.  400 

V.  Keynolds  i.  52 

McGregor  c.  Kilgore  ii.  214 

McGuire  i'.  McGowan  i.  466 

McHenry  r  Davies  i.  206 

Mclver  v.  Humble  i.291,  600 

I'.  Richardson  ii.  603 

McKane  v.  Bonner  i.  67 

McKeen  v.  Frost  i.  222 

McKenna,  lie  i  466 

McKinney  i'.  Ward  i.  246 

McKinstry  v.  Tanner  i.  426 

McKnight  i>.  Dunlop  ii.  289,  290,  296,  308 
McLean  v.  Fleming  ii.  13 

V.  Hess  i.  227 

V.  Nicoll  ii.  630,  569 

McLemore  v.  Nuckolls  i-  '"246 

V.  Pinkston  i.  160 

McLeod  r.  vKtna  Life  Ins.  Co.  i.  234 

I'.  Dnitiimond  i.405,  4<>0 

V.  Si'ii.y  i.  409 

McMastirs  v.  Reed's  Executors         i.  320 
McMillan  v.  Michigan,  &c.  Ii.  U.  Co. 

ii.  162 
McMillen  v.  Lee  i.  116 

McMullon  r.  Hcilberg  ii,  624,  6()7 

V.  McMullen  i.  200 

McMurtrie  r.  Bennette  ii.  666 

McNeil  V.  The  Tenth  National  Bank 

i.  4;J0,  603 
McNeill  V.  Hill  ii.  83 

McNitt  ti.  Turner  i.  461 

McPherson  v.  Haskini  i.  479 


McPherson  v.  Rees 

V.  Watt 

V.  Watts 
McQuie  V.  Peay 
McKary  v.  Fries 
McVey  v.  Cantrell 
Mead  v.  Lord  Orrery 
Meader  v.  Page 
Meadowcraft    v.    German 

Bank 
Meadow  Dam  v.  Gray 
Meager  v.  Pellew 
Mealey  v.  St  Clair  County 
Means  v.  Williamson 
Meares  v.  Aiisell 
Meason  t;,  Pliillips 


Pasb 

i.  116 

1811,312 

i.  607 
i.  239 
i.  S82,  385 
i.  205 
i.  384 
i.  154 
National 

i.  96 
i.  404 
i.  205 
i.  432 
ii.  602 
ii.  627 
i.  14 


1.  406 
i.  807 
i  120 
i.  201,  202 
i.  106 
ii.  435 
i 


Tel. 


138 
496 


Mechanic's  Bank  i;.  Bank  of  Colum- 
bia i.  622,  673,  604 
V.  New  York  &  N.  H.  R.  R.  Co.  i.  390 
V.  New  York.  &c.  R.  R.  Co.  ii.  23,  24, 

25,  27,  64 
V.  Railroad  Co. 
i;.  Scimyler 
Medbury  i:  Watrous 
Medora,  The 

Meddowcroft  r.  Huguenin 
Meehan  v.  Sharp 
Meeker  v.  Meeker 
Melchert  v.  American    Union 

Co. 
Melhado  v.  Porto  Allegre,  &c.  Ry. 

Co.  i.  025 

Mel  lor  V.  Lees  i.  98 

Memphis  City  Rd.  Co.  v.  Mayor,  &c. 

of  Memphis  i.  428 

Memphis,  &c.  R.  R.  Co.  v.  Holloway 

ii.  197 
Menasha  v.  Hazard 
Mence  i:  Mence 
Mendes  v.  Guedalla 
Menier     v.      Hooper's 

Works 
Menkens  v.  Lightner 
Menkina  v.  Lightner 

V.  Watson 
Menzies  v.  Dodd 
Mercantile  Trading  Co.,  In  re;  Schro 

der's  I'ase  i  .11 

Merce.-,  In  the  Goods  of  ii.  6'>1 

Mercer  County  v.  liacket  i.  382,  407,  4W, 

432,  tidO 

Merchant  v.  Merchant  i.  Wi 

Merchants'  Bank  r.  Bergen  County  i.  414 

r.  Livingston  i.  t'i(i:i 

D   Marine  Bank  i.  ti(l4 

Merchants'  Bank  v.  State  Bank  i.  105, 107, 

GOO,  6(13.  604;  ii.  i)5 

Meredith  v.  Meigh     ii.  324,  384,  3m5,  4iri. 

469,  477,  478,  4h5, 488 

V.  Short  ii.  ^'76 

Meres  r.  Anseil  ii  MO 

Meriel  r.  Wymonsold  i 

Merriam  v.  Cunningham  i 

Merrick  v.  Peru  Coal  Co.  i 

V.  The  Burlington,  &c.  Co.         i 


i.  430 
ii.  5!i2 
i.  6  : 
Telegraph 

i.  308 
i.  142 
i.  147 
i  41)1 
ii.  502 


Ml 
1'.'2 

321 


TABLE   OP  CASES   CITED. 


lix 


Paob 

i.  116 

311.  312 

i.607 

i.  5289 

382,  386 

i. '205 

i.  384 

i.l64 

Dnal 
i.  9G 
i.  404 
i.  205 
i.  432 
ii.  502 
ii.  627 
i.  14 
nlum- 
l,  573,  604 
Co.  i  31K) 
.  ii.  23,  24, 
25,  27,  64 
i.  406 
i.  807 
i  126 
i.  261,  262 
i.  195 
ii.  436 
i  138 

n    Tel. 

i.  496 

ibc.  By« 

i.025 

i.  98 

^°^'  ^\  428 

""''^Ti.  197 

i.  430 
ii.  692 

i.6  • 
llegrapl)  ^^^ 

i.  142 
i.  147 

i  4111 
ii.  602 
,;Scbro 

1  "i 
ii.  b-)! 
",8"  407,408, 
'  432,  tiOO 
i.  N) 
County  i  •llA 

i.  ti*i;i 

i.  W»l 
nki.105,10", 
1)3.  604  ;  ii.  »» 
;584,  3«r),  403, 
478,4b5,4>^ 
ii.  f'lb 
ii  f.:!0 
i  .'•^41 
i.  V^i  , 
i.  2!«  i 

ICo.         i-  321 


Paoi 
i.  482 
i.  27 
i.402 
ii.  592,  693 
i.  261 
i.  132,  322 
i.  613 
ii.  504 
i.  522,  673 
i.  384 
i.  162,  163 


Merrill  v.  Bartlett 

V.  Ilunnewell 

I'.  Walker 
Merritt  v.  Clason 

V.  WaUh 
Merry  ».  Nickalls 
Mersey  Docks  Co.  v.  Gibbs 
Messer  i'.  Wooilman 
Jletcalf  V.  Williams 
Metcalfe  r.  Pulvertoft 

V.  Siiaw 
Methodist  Episcopal  Church  v.  Jacques 

i.  205 

V.  Piekett  i.  401 

Metropolis  w.  The  New  England  Bank 

i.  573 
Metropolitan  Counties  Society  v  Brown 

ii.  244 
Metropolitan  II.  R.  Co.  v.  Manhattan 

U.  K  Co.  i.  300 

Meiix  I'.  Jacobs  ii.  248 

Mews  V.  Mews  i.  83,  213 

Meyer  v.  Dresser  i.  574 

r.  Johnston  i.  420 

V.  Muscatine  i.  423 

Meyerstein  v.  Barber  i.  656 

Mevnell  v.  Surtees  ii.  599.  660 

Michener  v.  Dale  i.  43,  86,  87,  W 

Miciii|,'!in  Bank  v.  Eldred  i.  400 

Michigan  Central  R.  R.  Co.  v.  Min- 
eral Springs  Manuf.  Co.   ii.  136, 
159,  105,  166 

I'.  Myrick  ii.  177 

Michigan  In-;.  Co.  v.  Leavenworth    i.  397 
Michoud  V.  Girod  i.  303, 462, 453, 454, 463. 

503 
Mickles  v.  Roclicster  City  Ban  <  i  377 
MiiMleport  o.  .^^tna  Life  Insur.  Co.  i.  410 
Middlesex,  The  Ship  i.  635 

Middlesex  Turnpike  Corp.  v.  Tufts  i.  541 
Midilleton  v.  Fowler  ii.  6,  7 

I'.  Mullica  i.  417 

V.  Pollock  i.  460 

Midliiiid  Ry.  Co.  V.  Taylor  i.  603 


Miers  V.  Z.  &  M.  T.  Co. 
Mill)urn  V.  Giiyther 
Mildniay  v.  Mildinay 
Mililred  v.  Maspons 
Milford  ('.  Mayor 
Miitriite  r.  Kebble 
Miles  r.  Groton 

V.  Laiif^loy 

V.  Mi^Ilwraith 

f.  Miles 

I'.  Starr 
Millard  n.  Hewlett 

r  Millard 

Milledjie  v.  Laman 

I  Miller  r.  Billingsby 

r.  Brown 

I'.  Oaig 

V.  Fletcher 

I'.  Glontworth 

I'.  Irvine 

V.  Jc£frie8 


i.  428 

i.  482 

i.  199 

i.  673,  574,  641 

i.  17 

i.  98,  105 

ii.  476 

i.  456 

i.  628,  620 

ii.  266 

i.  400 

i.  126,  130 

ii.  56(i 

ii.  653 

i.  73 

i.  214 

i.  142 

i.  293 

i.  2.36 

ii.  637,  581 

i.  88 


Pass 

Miller  v.  Life  Ins.  Co. 

1.590 

V.  Mackay 

i.  602 

V.  Miller 

i.  84.  43,  86,  87 

V.  Palmer 

i.  263 

i;.  Peck 

i.  228 

V.  Shaw 

i.  17 

r.  Thompson 

i.269 

V.  Williamson 

i.  460 

Millcs  v.  Fletcher 

i.  259 

Mills  V.  Bagley 

i.  85 

i;.  Ervin 

i.  453 

i;.  Fowkes 

u.  309 

V.  Goodsell 

i.  466 

V.  Graham 

i.  133 

t>.  Hunt 

i.  636 ;  ii.  365,  455 

V.  Scott 

i.  374,  .395 

r.  Smith 

ii.  108 

V.  Wyman 

i.  86, 116 

Millspaugh  v.  Putnam 

i.  47,67,  73,77 

Milner  i\  Field 

i.  621 

Milnes  v.  Busk 

i.  202,  204 

Miltenberger  v.  Cooke 

i.  636 

V.  Logansport  Ry. 

Co                 i.  420 

Milward  v.  Hallett 

i.  261,  266 

Milwaukee  &  St.  Paul  Railway  Co.  v 

Smith  ii.  181,  183,  184 

Mims  I'.  West  i.  38.3,  434 

Minck  V.  Martin  i.  166 

Minet,  Ex  parte  ii.  616,  526,  552,  553,  554, 

671 
Mining  Company  v.  Anglo- Calif or- 

niRn  Bank  i.  600 

V.  McM.ihon  i.  604 

Minneapolis  Association  v.  Canfield  i.  376 
.Minneapolis  &  St.  Louis  Ry.  v.  Co- 
lumbus Rolling  Mill  ii.  604 
Minnesota  Co.  v.  St.  Paul  Co.  ii.  250 
Minor  v.  Mechanic  Bank  i.  297 
V.  Mechanics'   Bank  of  Alexan- 


dria 

V.  Rogers 
Minshall  v.  Lloyd 
Mires  i'.  Solebay 
Mitchell's  Case 
Mitchell's   Case ; 

Charcoal  Iron  Co, 
Mitchell  ••.  r-lver 

V.  Ell-. 

1-.  Gill 

V.  Homfray 

V.  Kingnmn 

V.  La  page 

V.  Otev 

V.  Smith 

V.  Treanor 


.395 


i  67,  73.  75,  77,  82 

ii.  252 

i.  551 

i.  131 

In  re  Norwegian 

i.373 

i.  397 

ii.  482 

i.  13,  17,  20,  23 

i.  65,  83 

i.  138,  142.  148 

ii.  607 

i.  241 

i.  .36,  70,  86 

i.  152,  163.  166 


Mitchell,  A.,  v.  City  of  Glasgow  Bank 

i.  .341 
Mitchell,  N.,  v.  City  of  Glasgow  Bank 

i.  .341 
i.  267,  274,  284 
i.  200 
i.  830,  332,  .341 
1.98 
U.  268, 504 
i.  47 


Mitchesnn  i'.  Oliver 
Mix  r.  Mix 
Mixer's  Case 
Mixer  r.  Cook 
V.  Howarth 
Mizell  V.  Burnett 


'I 


il'l 


li 


: 

1 II:  1 


K  i 


m 


ill 


i.!^ 


■1. 


ll! 


1  im 


TABLE  OF  CASES  CITED. 


Paob 
Mizen  v.  Pick  i.  158,  163,  192 

Mobile  &  Girard  R.  R.  Co.  v.  Cupe- 

land  ii.  10:^ 

Model  Lodging  House  Assoc,  v.  Bos- 
ton i.  230 
Moens  i'.  Haywortli  i.  610 
Mot'ser  v.  Wisker  i.  125 
Moldaut,  A'.r /«i)<e  i.  641 
Mollett  V.  Hobinson  i.  344,  562 
Mollwo  f.  The  Court  of  Wards  i.  4»0,4»2, 

600 
Moloney  t'.  Kernan  i.  452,  502 

Molton  V.  Camroux    i.  139,  140,  141,  147, 

148,  169,  192 
Money  v.  Township  of  Oswego  i.  407,  411 

i.  642,  G40 

i.  459 

ii.  816,  648 

i.  641 

i.  162,  163 

152,  158,  lO;^,  179 

i.  151,  162 

ii.  644 

i.  397,  616 

i.  417,  422 

i.  584 

i.  452 

The  Al- 

i.  595 
i.  422 
i.  497 
i.  112 
i.  409 
i.  131 
i.  527 ;  ii.  633,  636 
National  Bank    of 

i.  608 

i.  624,  567,  568,  571, 

697,  641 


Monk  V.  Whittenbury 
Monroe  >.'.  Alaire 

V.  Perkins 
Montagu,  Ex  parte 
Montague  v.  Barun 

V.  Benedict 

V.  Espinasse 

<,.  Maxwell 

V.  Perkins 
Montclair  ;;.  ivomsdell 
Monte  Allegre,  The 
Montesquieu  v.  Sandys 
Montgomery  Bank,  The,  v. 

bany  City  Bank 
Montville  v.  Houghton 
Moody  V.  Paine 
Moon  V.  Towers 
Moor  V.  Newfleld 
Moore  v.  Abernatby 


Campbell 
Citizens' 
Piqua 
Clementson 


Conham 

Dalton 

Davis 

Denton 

Garwood 

Hershey 
V.  Holland 

Metropolitan  Bank 

Moore 

Page 

Sanborn 

Sclioppert 

Sibbald 
V.  Small 
V.  Stadden 
V.  Stokes 
V,  Wilson 


1.  107 

i.  87 

i.  481 

L  86,  87,  89 

i.  126 

i.  1.39 

i.  16,  93 

i.  603 

i.  33 

i.  208 

ii.  40 

i.  299 

i.  98 

ii.  266 

ii.  269,  276 

ii.  586 

i.  632 ;  ii.  481 


Moore  &  Uobinson's  Banking  Co.,  Ex 

fitirte ;  7n  r«  Armytnge 
Moorsom  v.  Kymer 
Moran  v.  Commissioners 

V.  Jones 

V.  Miami  County 
Mores  v.  Carham 
Morgan,  Ex  parte 

V.  Chetwynd 


II.  246 
ii.  484 

i.  882,  600 
i.  288 

I  407,  408 
i.  105 
i.  464 
i.  162 


Pa« 

i.  649 

ii.  458 

ii.  608,  606,  644 

i.  164 


Morgan  v.  Conchman 

V.  Gath 

V.  Halford 

V.  Hughes 

V.  Malleson  i.  32 

V.  Hailroad  Co.  i.  397 

V.  Uicharda  i.  628 

V.  Sykes  U.  484 

Morgan's  Assignees  v.  Shinn  i.  267 

Morgan  County  v.  Thomas  i.  428 

Morison  v.  Thompson  i.  608 

i;.  Tumour  ii.  685 

Morley  v.  Boothby  ii.  526 

Morrell  v.  Codding  i.  601 

V.  Wootten  i.  691 

Morrill  v.  Aden  i.  129 

Morriile  v.  American  Tract  See.       i.  424 

Morris  v.  Bohle  i.  193 

V.  Burroughs  i.  61 

V.  Cheney  i.  428 

V.  Cleasby  i.  671 

r.  Norfolk  i.  149 

V.  Wilson      ii.  618,  652,  656, 657,  666 

Morrison  v.  Kinstrae  i.  450 

V.  Thistle  i.  239 

Morse  v.  Brainerd  ii.  164, 166,  156 

V.  Connecticut  River  R.  K.  Co.  i.  604 

V.  Royall  i.  464,  469,  466,  503 

Morss  V.  Stone  i.  92,  100 

Mortimer  v.  McCallan  i.  539 

Mortimore  v.  Wright  i.  Ill,  112 

Morton  v.  P.iy  i.  263 

V.  Dean  ii.  644,  645 

V.  Fazan  i.  192 

f.  Lamb  ii,  312,  623 

V.  Tibbett  ii.  280,  316,  373,  374, 

376,  877,  379,  380,  381,  383,  .384. 

385,  387,  398,  399,  418,  423,  426, 

428,  430,  460,  453,  454,  460,  462, 

464,  468,  469,  470,  477, 478,  4'J3, 

494,  496 

Moseley  v.  Buck  i.  463,  602 

Mosely  v.  Cressy's  Co.  i.  125 

Moses  V.  Stevens  i.  125 

V.  Taylor  i.  100 

r.  The  Boston  R.  R.  ii.  169 

Moses  Taylor,  The  i.  2»7 

Mosher   v.  The  Southern    Express 

Co.  ii.  214 

Moss,  Ex  parte  i.  308 

i>.  Culver  ii.  266 

V.  Oakley  i.  S'JO 

V.  Sweet  ii.  412 

Mossy  V.  Mead  ii.  S16,  644 

Motlev  V.  Head  i.  148 

Mott  V.  Comstock  i.  153,  165,  r.i2 

V.  Hicks  i.  320 

V.  Ruckman  i.  291 

V.  The  United  States  Trust  Co.  i.  M 

Moultrie  v.  Fairfield  i.  428 

V.  Jennings  i  47 

Mountain  v.  Bennet  i.  147 

Mountford  v.  Gibsr.n  i  C24 

Mountstephen  v.  l<aken:an        ii.  576,  b'l 

Mowatt  V.  Lord  Londesborough        L  125 


TABLE  OF  CASES  CITED. 


Izl 


i.  649 
ii.  458 
606,  644 
i.  154 
i.  32 
i.  397 
i.  528 
U.  484 
i.207 
i.  428 
i.  608 
ii.  685 
ii.  626 
i.  601 
i.  691 
i.  129 
I.   i.  424 
i.  198 
i.  61 
i.  428 
i.  571 
i.  149 
;6, 667,  666 
i.  450 
i.  239 
}4, 166, 156 
.  Co.  i.  604 
b9.  465,  603 
i.  92,  100 
i.  639 
i.  Ill,  112 
i.  263 
ii.  644,  645 
i.  192 
ii.  312,  623 
.5,  373,  374, 
il,  383,  384. 
K,  423,  426, 
[54,  460,  462, 
77,  478,  4U3. 
'   494, 495 
453,  602 
i.  125 
i.  125 
i.  100 
ii.  169 
i.  2»7 
Express 

ii.  214 

i.  ao8 

ii.  206 
i.  320 
ii.  412 
ii.  816,  (i44 
1.148 
Il63, 166,  r.1'2 
i.  320 
i.  2111 

i.  ;w3 

i.  428 

i.47 

i.  147 

i  624 

ii.  670,  5'7 

Igh        L  V^ 


Ist  Co. 


Mowrey  v.  Vandling 

I'.  Walsh 
Moyce  v.  Newington 
Mover  V.  Shoemaker 
Moylan  '•.  Nolan 
Mozk'y  V.  Alston 


Paob 
ii.  666 

i.  331,  456 
i.  107 
i.  407 

L  167,  168 
i.  808 


y.'Tinklor        i.  368;  il.  515,  563,  602 
Miuklow  V.  Mangles  ii.  256,  267 

Mudirett  V.  Horri-ll  j.  402 

Muilway  V.  Croft  i.  137 

Miiik  ('.  Crilly  i.  235 

Mulliall  V.  Keenan  i.  684 

Mulliirky  v.  Cedar  Falls  i.  433 

,•.  1'.  W.  &  a.  R.  It.  Co.  ii.  158 

Miilk-ns  V.  Miller  i.  606 

Mulligan  V.  Illinois  Central  Railway 

Co.  ii.  198 

MuUett  I'.  Mason  i.  618 

Muniford  v.  Nicoll  i.  482 

i'.,The  Commercial  Ins.  Co.       i.  293 
Mumma  v.  The  Potomac  Co.    i.  881,  391, 

406 
Munch  V.  Cockerell 
Mimdy  V.  JoUiilc 
Munn  r.  Bcrger 

V.  Commission  Co. 

V.  Illinois 

V.  Worrall 
Muiiro  1;.  l)e  Charmant 
Muiisell  V.  Lewis 
Murch  V.  Wright 
Murdock  v.  City  of  Memphis 
Murphy  v.  O'Shea 
Murray  v.  Ballon 

V.  Harlee 


i.  454,  466,  502 

i.  593 

ii.  496 

i.  486 ;  ii.  40,  71 

i.  886 

i.  406 

i.  158 

ii.  280 

i.  97 

i.  424 

i.  312,  452,  502,  607 

i.  382,  434 

i.  202,  204 

i.  624 

i.  236,  237 

i.  397 

i.  382,  383,  386,  434 

i.  '.no 

i.  497 

i.  4o4 


V.  Fast  India  Co 

V.  Kcyes 

V.  Lardner 

V.  Lylburn 

V.  Mann 

V.  Murray 

V.  Palmer 

Muschamp    v.   Lancaster    Railway 

Co.         II.  77,  78,  79,  81,  82,  84.  86,  96, 

99,  105,  106,  107,  108,  116,  118, 119, 120, 

121,  122,  123,  124,  126,  128,  129,  130, 

182,  134,  135,   136,  137,  140,  142,  14.3, 

145,  147,  150,   152,  153,  154,  155,  157, 

I08,  I.V.),  160,  161,  162,  166,  168,  169, 

170,  175,  177,  180,  182,  183,  184,  185, 

186,  US7,  190,  191,  192.  194.  195,  1!»8, 

207,  208,  212,  214,  215 

Musgrave  &  Hart's  Case  i.  Ml,  3o4 

Musick  V.  Dodson  i.  193 

Miiskott  V.  Drummond  I.  6^3 

Mussi-iman  c.  Stoner  ii.  644 

Mussiii  V.  Price         i.  7,  9,  12,  17,  18,  21 ; 

ii.  314 

Musson  r.  Bovet  I.  406 

Mutual  Life  Ins.  Co.  v.  Elizabeth     i.  413 

r.  Hunt  i.  140 

Muzzy  )■■  Whitney  i.  469 

Myer    '.  Baymore  i.  200,  269 

I'.  Cottrill  ii.  674 

V.  Morse  Ii.  648 


PA«a 

Myers  v.  Muscatine  i.  407 

V.  Myers  L  117,  201 

V.  Willis  i.  287 

Myrick  v.  Michigan  Central  R.  R. 

Co.  u.  170,  172 

Mytton    V.   The   Midland   Railway 
Co.  U.87 


N. 

Nabb  V.  Koontz  ii.  681 

Nace  t".  Boyer  i.  140 

Nail  f.  Punter  i.  203 

Najac  t;.  Boston  &  Lowell  R.  R.       ii  110 
Nance  v.  Metcalf  i.  16 

Napier  v.  Klam  i.  316 

Nash  V.  Adams  i.  297 

1;.  Towne  i.  523,  673 

Nashua  Lock  Co.,  The,  v.  The  Wor- 
cester &  Nashua  R.  K.  Co.    ii.  159, 161, 
199,  206,  209,  211 
Nasmith  i;.  Manning  i.  357,  859.  360, 

362,  363,  364,  365,  396 


Nathan  v.  Whitlock 

1.396 

National  Bank,  Ex  paHe, 

ii.  241 

V.  Case 

i.  387,  896 

V.  City  Bank 

i.  102 

V.  Grand  Lodge 

i.  806 

V.  Hall 

ii.604 

V.  Insurance  Co. 

i.  622 

V.  King 

i.  460 

V.  Matthews 

i.  302 

V.  Watsontown  Bank 

i.  389,  390 

National  Bank  of  Pontiac  v,  Langan 

i.  06 
National  Bank  of  Railway  v.  Brewster 

i.  151 
National   Bank    of    Washington    v. 

Te-xas  i.  383,  434,  442 

National  Bank  of  Xenia  v.  Stewart 

i.  388 
National  Bay  i\  Dearborn  ii.  46 

National  Equitable    Provident  Soc. 

1.370 
National  Exchange  Co.  of  Glasgow 

V.  Drew     i.  310.  332,  338,  340,  599,  613 
National  Savings  Bank  Assoc,  In  re  ; 

Hebb's  Case  i.  352 

Naugatuck  It.  R.  Co..  The,  v.  The 

Waterbnry  Button  Co.  ii.  144 

Nauvoo  V.  Hitter  i.  434 

Navaulshaw  v.  Brow-irigg  i.  638,  639,  646 
Nazro  v.  Fiillor  i.  400 

Neale  v.  Viney  ii.  234 

Necker  r.  Koohn  i.  ISO 

Needham's  Case  •.  387 

Needhanj  1;.  Bremner  :.  196 

V.  Itawbone  i   662 

Negley  i*.  .Juffers  ii.  644 

Neil  V.  Cheves  ii.  284,  311,  31t'>,  644 

Neilson  r.  .James  i.  544 

Neimcew'-z  r.  Gahn  I.  208 

Nelson  iv  Brown  i.  94 

V.  Dubois  ii.  648,  680,  623 


1^ 


Jt!: 


■:|j| 


•I  I 


J 1 ;  iii 

'■h 

!■■  '1 

It     :.i 


i'i 


r    111 


'!i 


m 


l!       •     I 


^'  ill 


J,:      \ 

ll'^rt 

^       :               ;:   . 

1  :h      i:' 

1 ;'  ' 

J  1:1 

Ixii 


TABLE  OF  CASES   CITED. 


Paoi 

NcUon  I'.  Dunconibe  i.  143 

V.  Plimpton  i.  9« 

V.  Stucker  i.  184,  323 

V,  Wlictmore  i.  662 

Nelson,  The  i.  282 

Nene  Valley  Drainage  Commissionerg 

V.  Dunkley  ii.  673 

Nerot  V.  Buriiand  i.  408 

Ncsbit  c.  Burry  ii.  310 

Ncsliam  «j.  Selby  ii.  071,673 

Nestor,  The  i.  202,  271),  280 

Neversink,  The  i.  208 

Neville,  In  re  ;  Ex  parte  Wliite  i.  683 

New  Albany  v.  Burke  i.  391,  403 

New  Bedford  v.  Cliace  i.  193 

New  Brunswick  &  Canada  Railway 
Co.  V.  Muggeridge         i.  316,  325,  32C  ; 

ii.  410 
New   Brunswick    Land,  &e.    Co.   v. 

Conybeare  i.  31(i,  382,  333,  013 

New  Kni;lund  Insurance  Co.,  The,  v. 
The  Sarah  Ann        i.  262,  268,  2ry.>,  260 

201,200,  278 
New  Haven,  M.  &  R.  R.  R.  Co.  i.  410 
New  Hope  Delaware  Bridge  Co.  v. 

Perey  i.  389 

New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank  ii.  200,  624 
New  Orleans  v.  Clark  i.  437 
New  Orleans,  &c.  U.  R.  Co.  v.  Harris 

i.  299 
New  Providence  v.  Halsey  i.  413,  419 
New  Sombrero  Phosphate  Co.  v.  Er- 

langer  i.  343 

New  York,  In  the  City  of  i.  291 

New  York  &  New  Haven  R.  R.  Co.  v. 
Schuyler    i.  390,  603  ;  ii.  16,  18,  19,  22, 

24,  26,  31,  06 
New  Y^ork  Firemen's  Ins.  Co.  i'.  Ely 

i.  320 
V.  Sturges  i.  320 

New  Zealand  &  Australian  Land  Co., 

The,  «;.  Watson  i.  462,  641 

New  Zealand  Kapanga  Gold  Mining 

Co.  /n  re ;  Ex  fiurte  Tliomas  i.  10 

Newbery  v.  Armstrong    ii.  623,  626,  627, 


Newbury  v.  Armstrong 
NewcoMib  V.  Brooks 

r.  Clark 
Newell  r.  Hussey 

r.  Radford 
Newhall  r.  Dunlop 
Newry,  &c.  Ry.  Co.,  The,  v.  Moss 
Newsome  v.  Boyer 
Newson  v.  Tliornton 
Niblet  i».  Sniitli 
Nicely  v.  Nicely 
Nichol  V.  Mayor,  &c. 

f.  Steger 
Nicholas  v.  Adams 

Nicholo  V.  Allen 
Nicholle  v.  Plume 
NichoUs  V.  Le  Feuvre 


503 

ii.  526,  670,  624 

i.  299 

ii.  016 

ii.  278 

ii.  618,  621 

i.  636 

i.  403 

i.  200 

i.  660 

ii.  251 

i.  186,  198, 199,  200 

i.  428 

i.  246 

i.  36,  37,  42,  46.  69, 

86 

i.  111,112 

ii.  336,  446,  456 

i.  623,  024 


Nichols  V.  Allen 
I'.  Danvcrs 
V.  I)e  Wolf 
V.  Johnson 
V.  Raynbred 


Paoi 
ii.  581 
i.  190 
ii.  60 
ii.  606 
ii.  603 


Nicholson  v.  Bower  ii.  400,  401,  402,  408, 

404.  406,  406,  408,  410,  417,418, 

421,  426,  430,  431,  468,  472,  478, 

477,  486.  494 

V.  Bradford  Union  i.  318 

V.  Chapman  i.  288 

V.  Drury  Buildings  Estate  Co.    i.  216 


i;.  Pavitt 

ii.  468 

V.  Ricketts 

i.  478,  491 

V.  Spencer 

i.  122 

V.  VVilborn 

i.  122 

Nickalls  v.  Ferneaux 

i.  347 

V.  Merry                       i. 

322,  323,  840 

Nickerson  v  Nickerson 

i.  67,  73 

Nickson  v.  Brohan 

i.  486 

V.  Jessom 

i.  9, 17,  21 

NicoU  V.  Muinford 

i.  497 

Niell  V.  Morley      i.  139,  140, 

141, 148,  192 

Nightingale  i-.  Withington 

i.  110,  128 

Nimmo  r.  Walker 

i.  892 

Nissen  v.  Bendixsen 

i.  189 

Nixon  I".  Brownlow 

i.  404 

I'.  Green 

i.  404 

N.  Mitchell  i'.  City  of  Glasgow  Bank 

i.  341 

Noakes  i".  Morey 

ii.  815,  581 

Noble  V.  Kennoway 

i.  670 

i;.  Kreuzkamp 

i.  232 

V.  Smith 

i.33,  54 

V.  Ward 

ii.  633,  634 

Nockels  1).  Crosby 

i.  643 

Noel  V.  Kinney 

i.  231 

Nolan  r.  Jones 

i.  133 

Norcross  v.  Rodgers 

i.  188 

Norman  v.  Phillips    ii.  320,  324,  830,  369, 

360,  362,  363,  304,  367, 371,  374, 

377,  378,  396,  390,  463,  464,  477 

V.  Villa.  i.  194 

Norris  v.  Blair  ii.  681 

V.  Dodge  i.  116 

V.  McCarnia  i.  228 

V.  Vance  i.  129 

North  V.  Miles  i.  010 

Northcote  v.  Doughty  i.  127 

Northern  Bank  of  Toledo  v.  Porter 

Township  Trustees        i.  416,  417,  418, 

420,421 
Northey  v.  Johnson  '         ii.  222 

North  River  Bank  r.  Ayniar  i.  601 ;  ii.  26, 
27,  04,  66,  08,  69,  70,  71,  72,  73 
Northrop  v.  llale  i.  52 

North  Star,  The  i.  255 

Northumberland,  Duke  of  i.  128 

Northwest     Transportation    Co.    v. 
Beatty  i.  299,  304,  306,  308 


Norton  v.  Herron 
V.  Rhodes 
r.  Shelby  County 
t;.  Simonds 
V.  Turrill 


1.  629 
i.  161 

i.  410,411,412 
ii.  643 

i.  201,  203,  205 


TABLE  OP  CASES  CITED. 


Ixiii 


Norton  i'.  Woodruff 

V.  Young 
Norway  v.  Grant 

1'.  Howe 
Norway   I'lains     Co. 
Maine  Railroad 


V. 


Pao* 

I.  14,  26,  93,  100  I 

i.  am 

ii.  15  , 
i.  808.  459 
Boston    & 

ii.  107 


Norwcjjian  Cliarcoal  Iron  Co.,  In  re  ; 


i.  373 

i.  5-J(i,  697 

i.  272,  274,  2H8 

i.  142 

i.  137 


Mitclii'll's  Case 
Norwood  c.  Dri'sser 
Notara  c.  Hi-ndiTsou 
Nottinifton,  A'r  pmic 
Nottridi,'c  r.  Tiie  I'riiuv 
Noyes  i-.  Rutland  &  Burlington  Rail- 
way i.  370;  ii.  158 
r.  Spauldins  i-  404 
Nuctzel  !•.  Xui'l/ol  i.  201 
Nutjgent  V.  Tlie  Supervisors     i.  382, 4i>4, 

Nunns  v.  Givins  i.  240 

Nurse  v.  Craig  i.  1!M) 

Nutt  V.  Butler  ii.  247,  257 

I'.  Morse  J.  77 

Nutting  V.  Connecticut  River  U.  R. 
Co.  ii.  106,  107,  143,  166, 171 


O. 

Oakcs  V.  Insurance  Co.  i.  409  j 

V.  Turquand  i.  315,317,  326,  329,  330,  i 

331,  337,  341,  3t)(i 

Oatcs  I'.  Hudson  i.  405 

V.  National  Bank  i.  3H(j 

Ocean,  The  i.  284 

Ockenden  c.  Ilenly  ii.  315 

Odell  V.  Buck  i.  142 

()di')rne  r.  Ma,xey  i.  401 

O'Donnell  i-.  Leeinan  ii.  559,  562,  609 

O'Donoliue  v.  Stammers  ii.  021 

Oi'lricks  I'.  Ford  i.  516,  524 

Ollicer  v.  Young  i.  428 

OgtU'U  r.  County  of  Daviess       i.  409,  429 

Ogilvie  r.  Foljanibe     ii.  580,  598,  629,  mH 

V.  Knox  Insurance  Co.      i.  391,  402, 

400 

Ogle  V.  Atkinson  i.  GoO 

V.  Earl  Vane      ii.  631,  035,  638,  639, 

641,  042 
Oglesby  v.  Yglesias  i.  635 ;  ii.  27 

O'llasjan  v.  O'Hagan  i.  200 

Ohrloff  i\  Briscall  ii.  89 

picott  f.  Supervisors     i.  383,  4r-'.  414,  434 
Old  Colony   R.    U.    Corporation    v. 

Kvan.s  ii.  614 

Oldirsliaw  v.  King  ii.  617 

Olivo  i:  Smith  i.  639 

Oliver  r.  Cant  i.  454 

».  Houdlet  i.  110,  118,  128 

f.  McClellan  i.  l'Jt4 

Oltman  r.  Mack  i.  129 

Oniri.  The  i.  284,  289 

Oneida  Bank  v.  Ontario  Bank  i.  436 

Onions  r.  Cohen  i.  021 


Pasi 

ii.  221 

i.  129 

i.  203 

».  279,  643 

i.  312 

Oriental  Inland  Steam  Co.  v.  Briggs 

i.  3.')5.  '.m 
Orleans  i-.  Piatt  i 

Ormerod's  Case 
Ormund,  Lord  v.  Anderson     ii. 


Orb,  Ex  parte 
Ordinary  c.  Wherry 
Orelia,  Tlie 
Organ  v.  Stewart 
Orgill's  Case 


427.  432 

i.  371 

611,  563. 

594.  002 

i.  234 

i. 

ii. 

i. 

i. 

ii. 


Onward,  Tho 


i.  265,  256,  278 


Orr  V.  Wliite 

Orrok  r.  Commonwealth  Ins.  Co.      i.  272 

Ortlort  V.  Klitzku  ii.  608 

Orwiggs  V.  Myers  i.  386 

Osborn  r.  Nelson  i.  193 

i;.  rheli)s  Ii.  628 

Osborne  v.  Adams  County  i.  417 

Osey  r.  Gardner  i.  7 

Osgood  r.  Laytin  i.  402 

Osnianii,  The  i.  255 

Osmond  r.  Fitzroy  i.  144 

Osterhout  v.  Shoemaker  i.  142 
Ostrander  r.  Brown              i.  631;  ii.  120 

Ostrom  I".  Jacobs  i.  492 

Otoe  ('ounty  i-.  Baldwin  i.  420 

Ottawa  V.  Curvy  i.  410,  417 

V.  National  Bank  i.  388.  417 

Ottaway  r.  Hamilton  i.  194 

Oulds  r.  Harrison  i.  543 

Outram  i'.  Morwood  i.  196 

Outwater  o.  Dodge  ii.  287,  497 

Overend  &  Gurney's  Case  i.  335 
Overend  CJurney  Co.,  In  re;  Ex  parte 

Oakes  i..328 

V.  Gibb  i.  316.  343 
Overend  (Jurney  Co.,  /«  re;  Musgravc 

&  Hart's  Case  i.  354 

Oakes  r.  Turquand  i.  329,  330 
Overseers  of  Poor  v.  Bank  of  Vir- 
ginia 
Overton  v.  Bannister 
Owen  V.  Goocli 

V.  Legh 


t;.  Long 

V.  Thomas 

V.  White 
Owens  I'.  Dickenson 

V.  Phelps 
Owenson  r.  Morse 
Owings  (,'.  H)dl 

f.  Trotter 
Owstans  v.  Ogle 
Oxenden  r.  Oxenden 
Oxford's  Case,  Earl  of 
Oxley  I'.  Young 
Ozley  V.  Ikelheimcr 


i.  460 

i.  1.34 

i.  630 

ii.  227 

i.  1.30 

ii.  652.  606 

i.  113 

202,  204,  205 

i.  130 

i.  17 

410,  627 

i.  122 

i.  482 

i.  199 

i.  5't3 

ii.  603 

i.  206 


1. 


Pacific,  The  i.  284 

I'aciflc  R.  R.  Co  v.  Henshaw  i.  404 

Pack  V.  Mayor  of  New  York  i.  581 

Packard  i-.  Nye  i.  623,  601 


.;  I : 


HI:  ' 

m 


(i, 

r 

1   : 

i;  ,i:ii:i  1 

m-  ♦'fifi 

f^ 

Ixiv 


Packard  v.Richardgon  ii.  617, 632, 633, 6ii4, 

6;}&,  6H7,  638,  689,  640.  Ml,  543, 

644,  660,  6o2,  664,  656,  502,  6bO 

Packer  v.  Steward  ii.  316 

V.  Wilson  U.  573 

Packford  v.  Maxwell  i.  17 

Packet,  The  i.  261,  278,  202 

Packet,  The  Siiip  i.  2<S1 

Page  V.  I^lorgan        ii.  418,  426,  427,  428, 

420,  430,  431,  4.)4,  404,  460,  467, 

46\),471,  472,  473,403,  404 

V.  Morrcll  i.  307 

t..  Morge  i.  132 

Paice  V.  Walker    i.  615, 616, 518,  619, 620, 

621,  622,  630,  631,  633,  634,  635 

Pain  V.  Coombs  i.  603 

Paine  v.  Hutchinson    i.  132, 323, 346,  862, 

364,  372,  602 

V.  The  Strand  Union  I.  317 

Painter  i^.  Mavor  i.  681 

I'ailiser  v.  Orb  i.  660 

Palmer  v.  Goocli  i.  261,  266 

V.  Marquette  &  Pacific  Rolling 

Mill  Co.  ii.  660,  666 

V.  McMasters  i.  193 

V.  Scott  ii.  626 

V.  Temple  i.  621 ;  ii.  316 

Pana  v.  Bowler  i.  411,  421,  428 

Panama  &  South  Pacific  Tel.  Co. 

v.  India  Rubber,  &c.  Works  Co.    i.  620, 

621 
Panama,  The  i.  265,  268 

Panama,  The,  Barron  v.  Stewart     i.  285 
Pannell  v.  Hurley  i.  460,  674 

Panton  v.  Panton  i.  27,  446 

Paradine  v.  Jane  i.  634 

I'aragon,  The  i.  201 

Paraguassa  Steam  Tramway  Co.  In 

re ;  Adamson's  Case  i.  32 

Parish  v.  Stone  i.  42,  86,  80 

Park  v.  Grant  Locomotive  Works    i.  206 

V.  Johnson  i.  882,  886 

V.  Kleeber  i.  237 

Parker  v.  Bates  i.  228 

V.  Bradley  ii.  616 

V.  Brunker  i.  665 

i;.  Carter  i  116 

V.  Davis  i-  6 

V.  Rett  i.  424 

V.  Lewis  i.  346 

V.  Luffborough  i.  426 

V.  McKenna  i.  343,  462,  602 

V.  Palmer    ii.  331,  366,  418,  425.  442, 

462,  403 


TABLE  OF  CASES  CITED. 
Paoi 


V.  Patrick 

V.  Staniland 

V.  Steward 

V.  Wallis 

V.  Winlow 

V.  Winslow 
Parker's  Heirs  r 
Parkersburg  v.  Brown 
Parkliam  v.  Randolph 


i.  456,  649,  650.  643 

ii.  226,  227,  251 

ii.  284 

ii.  387,  388, 458 

i.  576;  ii.  27 

i.  523,  630;  ii.  616 

Bodloy  ii.  581 

i.  416,  424 

i.  816 


Paot 

Parkist  V.  Alexander 

i.  453,  602 

Parks  ('.  BrinckerhoS 

ii.  623 

V.  Ross 

1.  572 

Parnell  v.  Hingston 

i.  3;] 

I'arot  V.  Turton 

i.  606 

Parson's  Case 

i.  128 

Parsons  v.  Armor 

ii.46 

V.  Hurd 

ii.  247 

V.  Jackson 

i.  396,  400 

V.  Maycsden 

i.  624 

Parteriche  i'.  Powlet 

ii.  680,  681 

I'arton  v.  Crofts 

ii.  613 

Partridge  v.  Stocker 

i.  206 

Party  v.  Clark 

i.  263 

Parvin  v.  Capewell 

i.  150,  216 

Pascall,  In  the  Goods  of 

ii.  654 

Pasley  v.  Freeman 

i.  316,  699,  610 

I'atapsco,  The 

i.  273,  282 

Patapsco  Ins.  Co.  v.  Soutligate     i.  260, 

261 

Pater  v.  Croonie 

i.  633 

V.  Staten 

i.  246 

Patchin  v.  Swift 

ii.  687,  681 

Parkhurst  o.  Van  Courtlandt    ii.  639, 660, 

628 


Paterson  v.  Gandasequi  i.  608, 600,  627, 

630,  518,  667,  6!W 

V.  Paterson  i.  201 

V.  Tash  i.  106,  107,  642,  646,  650 

Patmor  v.  Haggard  ii.  681 

Patrick  v.  (ias  Co.  i.  2<t8 

V.  Littell  i.  205 

Patten  v.  Darling  i.  272 

V.  Thompson  i.  560 

Patterson  i;.  Blanchard  i.  400 

V.  Chalmers  i.  201,  482 

V.  Lynde  i.  374,  388 

Patton  V.  Sheppard  ii.  245 

V.  The  Schr.  Randolph  i.  267 

V.  Thompson  i.  2}H) 

Paul  V.  Dod  i.  17 

V.  Roberts  i.  240 

V.  Virginia  i.  801,  887 

Paul  &  Boresford's  Case  i.  343 

Pavey  v.  Wintrode  i.  138 

Pavy's,  &c.  Co.,  In  re  i.  641 

Pawle's  Case  i.  348 

Pawlett  V.  Delaval  i.  128 

Pawley  v.  TurnhuU  i.  621 

Pawsey  r.  Armstrong  i.  481,  497 

Pay's    Patent  Pelted  Fabrick    Co., 

In  re  i.  687 

Payne's  Case  i.  322 

Payne  v.  Hornby  i.  498 

V.  New  South  Wales,  &c.  Co.     i.  641 

V.  Stanton  i.  208 

V.  Tlie  New  South  Wales,  &c. 

Co.  i.  625 

V.  Troyman  i.  208 

V.  Whale  i.  16 

Peabody  v.  Flint  i.  297 

Peace  v.  Gioahec  ii.  46,  549 

Peacock  v.  Monk  i.  201 

Pcarce  v.  Tobey  i.  130 

Pearl  v.  Hanslmrough  i  47 

V.  McDowell  i.  142,  143 

Pearsoll  v.  Chapin  i.  0^7 


TABLB  OF  CASES  CITED. 


IXT 


Feanon  v.  Dawion 

V.  Pearson 

V.  Scott 
Peaae,  Kz  parte 
Feck  1^.  Marling 

V.  MarliiiK*  Adm'r 

V,  Nashville  Mar. 
Co. 
PedfMon  V.  Lotiiiga 
Pet'k  I'.  CJurney 


Paoi 

ii.  47ti 

i.  53 

i.  6HU 

ii.  221 

i.  im 

i.  201 

&  Fire    Ins. 

1.206 
i.  Mo 

... i.  313,  613 

V.  Nurtli  Staflordsiiire  Ry.  Co. 

ii.  060,  000 

Peole  I'.  Hodgson  i.  602 

Peut  V.  ChiuuKO  &  N.  W.  Ry.  Co.     ii.  214 

Peirce  v.  Corf  ii.  6W,  060,  070 

V.  Jnckson  i.  497 

I'.  Ocean  Ins,  Co.  i.  260,  206 

Pell's  Case  i.  32,  347 

Pellatt's  Case       i.  355,  367,  362,  304,  366 

Peltier  ;•.  Collins  ii.  673,  624 

V.  Peltier  i.  200 

Pender  '•.  Lushington  i.  308 

Pendergast  v.  Adams  Express  Co.  ii.  113, 

114,  139,  201 
Pendleton  v.  Franklin  i.  201 

Pendleton  County  i-.  Amy  i.  407,  440 

Penfleld  I).  Thayer  i.  47 

Peninsular,  The,  &  Oriental  Co.   i;. 

Shand  i.  276 

Peninsular,  &c.  Banking  Co.,  In  re     i.  313 
Fennel's  Case  i.  2!) 

Pennell  v.  Alexander  i.  627 

I'.  Deffell       i.  446,  448,  449,  450,  647 
Fenninian  r.  Hartshorn    ii.  53)),  612,  643, 

644,  687,  002 
Pennington  i-.  Gittings  i.  87,  110 

Pennsylvania  Central  R.  R.  Co.   v. 

Sclnviirzenberger  ii.  168 

Pennsylvania  Life  Ins.  Co.  v.  Aus- 
tin i.  405 
Pennsylvania  R.  R.  Co.  v.  Berry     ii.  158 
Penny  v.  Porter 
Penton  v.  Hubart 
Penty  v.  Sinionson 


II. 


i.  12 

247,  249 

i.  161 

i.  260,  2(J7 

i.  524,  686,  630,  670 

i.  585 


Pentz  V.  Clark 

V.  Stanton 
People  V.  Bank 

i;.  Johnson 

V.  Naehr 

V.  Strickland 

».  Trustees  of  Schools 

V.  Warfleld 

V.  Wiant 
People,  The,  v.  Bank  of  Niagara 

v.  Bartlett 

V.  Burr 

V.  Collins 

V.  Cook 

V.  Hopson 

r.  Livingston 

V.  McGec 

V.  Stevens 

i».  The  Chicago  &  Alton  R 
Co.  U. 

V.  The  Utica  Ins.  Co. 

VOL.  I. 


i. 
i. 
i. 
i. 
R. 
179, 
i. 


i.  33 
188 
113 
428 
438 
438 
403 
425 
i.  437 
i.  425 
424 
425 
433 
140 
426 


Pam 
People  V.  Washington  ft  Warren  Bank 

i.  403 
Percy  v.  Milladon  i.  2U9 

Pereira  v.  Central  Pacific  R.  R.  Co.  ii.  214 
Perkins  v.  Portland,  &c.  R.  R  Co.  ii.  186, 
141,  169,  199.  200,  202 
ii.  614 


i.  284 
i.  870,  371 

i.  138 
U.  316,  644 

i.  468 

i.  406 
98,  196 


i. 


187 
820 


200 
201 
327 
132 
139 
198 


V.  Wadsell 
Perla,  The 
Perrett's  Case 
Perrine's  Case 
Perrine  v.  Cheeseman 
Perrot  i'.  Bryant 
Perry  v.  Dixon 

V.  Meadowcroft 

I'.  Perry 
Perryclear  v.  Jacobs 
Perry  Ilerrick  v.  Attwood 
Person  >:  Chase 

V.  Warren 
Peru,  Inliabitants  of,  v.  Poland         i. 
Peruvian  Railway  Co.,  In  re;  Craw- 

ley  &  Robinson's  Cases  i.  366,  366 

Robinson's  Case  i.  366,  366,  367 

Wallis's  Case  i.  365 

Peter  v.  Beverley  ii.  278 

Peters  v.  Ballastier     i.  100,  201,  203,  202 

V.  Fleming  i.  110,  119,  100 

V.  Fort  Madison  Co.  i.  87 

V.  Gooch 

V.  Uayward 

V,  Lord 
Peterson  v.  Ayre 

V.  Laik 
Petrie  i'.  Clark 

V.  Gueipli  Lumber  Co. 
Pettigrew  v.  United  States 
Pettitt  V.  Mitchell     ii.  362,  412,  460,  451, 

470 
Petty  V.  Roberts  i.  130 

Peyroux  v.  Howard  i.  279,  280 

Phelps  I'.  Walther  i.  198 

V.  Worcester  i.  110,  122 

Philadelphia  &  Baltimore  R.  R.  Co. 

I'.  Quigley  i.  000 

Philadelphia      Steamboat      Co.      v. 


i.  334 

i.  105 

i.  126 

i.  23,  376 

i.  131 

i.  405,  400 

i.  367 

i.  102 

Brown 
Philadelphia,  &c.  R 

Maryland 
Philbrook  v.  Belknap 
Philips  V.  Burg 
Phillimore  v.  Barry 

Phillips  »'.  Batenian 
V.  Bistolli 


II. 
4.32 

V.  Graves 

I'.  Hnth 

V.  Kerby 
•      V.  McCall 

V.  North  Carolina  R, 

V.  Ocmulgee  Mills 

v.  Purington 
Phillipson  v.  Gatty 

I'.  Hayter 


ii.  268 
R.  Co.,  The,  V. 

i.  434,  440 

i.  24 

i.  195 

ii.  613,  5.S0,  547, 

503,  002,  007 

ii.  520 

220,  835,  340,  359. 

435,  443,  470,  495 

i.  240 

i.  641,  042,  643,  045 

i.  241 

i.  2<.)3 

R.  Co.       ii.  101 

ii.  271,  270,  309 

1.482 

i.  454,  466 

i.  168,  163 


Philpot  V.  Sandwich  Manuf.  Co.      i.  130 


■h. 


V  U  \  ^  I 


:\^ 


lli*l^ll 

■  :i                   ■  ' 

p     1 


^ 


Ixvi 


TABLE  OF  CASE8  CITED. 


Paoi 

Paoi 

Phipppn  V.  Stlckncf 

i.  605 

Plosi  V.  Thomai 

i.  228 

l'lii|i|i8  V.  Ki'lly 

1.  '^41 

Plumcr  V.  Lord 

11.  104 

I'.  Kcdnwkk 

i.  151,  215 

I'lumer's  Case,  Sir  T. 

1.650 

IMicubi.',  Tlif       i.  20'.  270.  291 ;  ii.  W,  til 

I'neuniatic  Uas  Co.  v.  Berry 

1.200 

riioH  iliute  of  Liiiiu  Cu. 

t;.  Clreen         i.  ;121 

Pochin  V.  Robinowa 

i.  047,  048 

ricuid  i\  llino 

i.  201,  202 

Podger's  Case 

i.  024 

c.  McCormick 

i.  17 

Polhili  I'.  Walter 

1.  010 1  ii.  27 

Pkkard  r.  Uauks 

i.  18,  400 

Police  .Jury  v.  Britton 

i.  420,  433 

f.  Iliiiu 

i.  11)2 

I'ollak  v.  Graves 

i.  280 

?•.  Scars 

1.  ;W)5 

I'ollard  V.  Bailey 

1.374.  403 

Pickt-rell  v.  Morso 

i.  l.'its 

('.  Vinton 

ii.  64 

I'icktTirig  ('.  Uuok      i. 

043;  ii.  81,  40,  (JH, 

Pollock  V.  Stables                i. 

344,  538,  502 

60,  70 

i>.  The  National  Bank 

i.  403 

r.  Dowson 

i.  010 

I'olly  I'.  Walker 

i.  241 

V.  I'ltkeriiig 

i.  16;  J 

I'olmer  v.  Murray 

i.  233 

Picket  c.  Joliiia 

i.  100 

I'omey  v.  Camors 

i.  08 

Picki'tt  V.  Cloud 

ii.  312 

I'oinpclly  V.  Ureen  Bay  Co. 
Pontida,  The 

i.412 

l'id({iii  r.  {'rum             i. 

113, 115,  lOo.  1S3 

i.  283 

Piedmont  Manufneturing  Co.  v.  Col- 

Pool i\  Reed 

i.  232 

umbia,  i&c.  U.  U.  Co. 

ii.  168 

Poole's  Case 

ii.  242,  262 

Pierci'  ('.  Hank 

i.  62 

I'oole  I'.  Middleton 

i.  362 

t;.  l)urrout;li8 

i.  77 

Pooloy  V.  Driver          i.  483, 

485.  400,  f)01 

i;.  Insuranco  Co. 

i.  4oy 

I'opham  c.  Brooke 

i.  462 

I'.  Sclit'iick            i. 

14,  10,  20,  93.  100 

Pope  V.  Nickerson  i.  260, 263, 200, 276,  283 

Piety  V.  Stace 

i.  466 

I'ordage  v.  Cole 

ii.  280,  315 

Pieve  Superiore,  The 

i.  280 

Portalis  i-.  Tetley 

i.  038,  046 

I'igot  V.  Cubley 

i.  106 

Porter  v.  Bobb 

i.  105 

Pike  V.  Ualch 

i.  259,  200,  269 

V.  (lilkey 

ii.  074 

V.  IJriK'lit 

i.  24 

V.  Pittsburgh  Bessemer  Steel  Co. 

V.  Fitzgibbon         i. 

192,201,204,206, 

i.  374 

216 

V.  Porter 

i.  200 

V.  Ongley 

i.  569,  570 

V.  Talcott                   i.  12,  24 ;  ii.  412 

Pilbrow    V.    Pllbrow'3 

Atmosplieric 

Post  V.  Jones 

i.  261,  272 

lly.  Co. 

i.  641 

«'.  Kimberley 

i.  460 

Pillaiis  1'.  Miorop 

ii.  524,  568, 680 

V.  Koch 

i.  161 

Pilling  V.  Armitage 

i.  6i»4 

V.  Pearson 

i.  601 

Pilmore  c.  Hood 

i.  600 

Potharier  i-.  Dawson 

i.  106, 664 

Pineliell  v.  Salter 

i.  626 

Pott  I-.  Eyton 

i.  600 

Pincke  v.  Curteis 

ii.  312 

Potter  V.  Duffield       ii.  608, 

619,020,067, 

Pindar  v.  Insurance  Co 

i.  4!»y 

060,  060 

I'ine  CJrove  v.  Talcot 

i.  407 

V,  McDowell 

i.  303 

Pinkett  i-.  Wriglit 

i.448 

V.  Ocean  Ins.  Co. 

i.  272 

Finkliam  v.  Matfox 

ii.  435, 495,  603 

V.  The  Bank  of  Ithaca 

i.  301 

Pinkston  v.  McLi more 

i.  246 

«;.  The  Ontario  M....  Ins.  Co.    ii.  023 

Pinney  v.  Gleason 

i.  13,  14 

Poulter  V.  Killingbeck 

ii.  224,  261 

Pitcher  r.  Lycock 

i.  131 

Powder  Co.  i>.  Hurkhardt    i. 

14, 16,  93,  94 

Pitt  I'.  Bridgewator 

ii.  :i7 

Powell  I'.  Edmunds 

ii.  542 

V.  Shew 

ii.  260 

V.  Forest 

i.  47 

r.  Smith 

i.  147,  148 

V.  HcUicar 

1.  79,  87,  88 

Pitts  r.  Mngnum 

i.  79 

V.  Hoyland 

i.  650 

Pittfhiirg  Car  Works  v 

Bank           i.  303 

V.  Lovegrove 

i.  504 

Pittsburg,  &c.  Railway 

Co.,  The,  V. 

V.  Mills 

ii.  165 

Morton 

ii  103 

Power  r.  WelU 

i.  16 

Place  1'.  Fapp 

ii.  244,  247 

V.  Ix-ster 

i.  230 

Plnnclib  V.  Golburn 

i.  621 

Powers  I'.  Fowler 

i.  620 

Plank  Road  Co.  v.  Rice 

i.  402 

Powis  V.  Harding 

i.  330 

I'lantamour  v.  Staples 

i.  293 

Powlea  I'.  Innes 

i.  025 

Planter's  Bank  v.  Farmer's  Bank      i.  100 

Pozzi  V.  Shipton 

ii.  90 

c.  Stale  Bank 

ii.  66 

Prather  v.  Prather 

i.  200 

Planters'  Bank,  The,  v. 

Sharp          i.  303 

Pratt  V.  Boston  &  Albany  R 

R.        i.  603 

Plaster  V.  Piaster 

i.  113 

V.  Bryant 

i.  26 

Platner  v.  Platner 

j.  201 

V.  Reed 

i.  280 

Pleasants  v.  Pendleton 

i.  27 

V.  Swaine 

i.  624 

Plevias  v.  Downing  ii. 

037,  038.  039,  040. 

V.  Swanton 

i.  410,  026 

041,  642,  643 

V.  Taunton  Copper  Co. 

i.  403,  603 

TABLE  OP  CASI-a  CITED. 


Ixvil 


Prendorgast  v.  Turton 


VkOM 

i.  806,  308,  861. 
4ul) 

Prpntlce  v.  Acliorn  i-  HH 

I'ri'nitlunt,  &c.  I .  Thompson  I.  4|ia 

Pri'ston  I'.  Mirccau  li.  070 

,..  Tulbiii  I-  :W2 

i.  453,  454,  405,  502 


i.  1)5 

I  130,  141 

ii.  (CM),  031 

i.  laa,  la-i 

i.  l.'!3,  l:U 

il.  218,  334,  437,  443,  41)1 

ii.  5'.):: 

i.  450 

i.  403 

i.  <)0 

i.  205,  241 

i.  548,  5-l'J 

i.  201 

ii.  5<.)8 

i.  255 

I.  137,  144 


Provost  V.  (irntz 
Pril)lile  r.  Ki'iit 
Pricf  I'.  HiTriiigton 

V.  Dyer 

V.  Funiiaii 

V,  Hfwt'tt 

V.  lil'll 
V.   I'll)f0 

f.  liiiUton 
Prioo  and  Urown's  Ca«o 
Pridit'tt  c.  Cook 
i'rii'st  V.  Cone 
Priestly  r.  Fernio 
Priiuv  I'.  Oci'aii  Ins.  Co. 

r.  I'riiifi' 
Princi'  Georno,  Tho 
Priiiscp  I'.  I  \>  CO  Soinhro 
Priming  Iiduso  t'.  Uoard  of  Trustoes 

i.  75,  82 

i.  I",t7 

i.  1!)4 

Proctor  V.  .Fones  ii.  S35,  386, 438,  44(1.  450. 

470,  478,  4itl 

I'.  Soars  i.  130 

ProiljiiTs  V.  Frnzier  i.  145 

Proiiiifoot  V.  Mantefloro      i.  613,  614,  615 

Provincial    Insurance    Co.,    The,  r. 

Li'due  i.  528 

Provost  V.  P,r  'lin  i.  201,  209,  2'Jl 

Piijfh  ('.  Sliiirniaii's  Case  i.  347 

Push's  III.  .   .jl's  lloirs  i.  603 

Pullnmn  r.  Ujuon  i.  391,  395,  403 

i.  73 
;  i.  454 


Prolmrt  r.  Krouth 
I'roluT  ('.  Cobli 


Piilvortoft  I'.  I'lilvortoft 
Purcoll  i\  McNaniara 

r.  Purcoll 
Purcholl  r.  Salter 
Puryer  v.  'I'lionipaon 
Putnam  r.  Sullivan 

V.  Wise 
Pyo,  Ex  parte 


Q. 

Quackenbusli  v.  Sawyer 
Quark's  r.  Lacy 
(^Uiiniian  r.  Uurnett 
(jiiav  r.  McNinch 
(iu.vn  ■■.  Mill 


i.  201 
i.  597 
ii.  49 
i.  397,  399 
i.  40n 
i.  33,  73,  87 


i.  469 
i.  40.') 
i.  274 
i.  552 
i.  137 


Paoi 

Quincy  r.  Jp.ckson  I.  416 

c.  Stool  i.  381 

Quiiicy,  Mo.  &  Pac.  R.  R.  Co.  v.  Morris 

i.  419 
Quintard  v.  Bacon  ii.  436,  602 


R 


(iueoM,  riic,  V.  Carnatic  Railway  Co.  i.  215 
IV  Shropsliire  Union  Co.  i.  (103 

r.  Tlio  Coinniissionors  for  the  Pav- 
ing of  Choltonhain  i.  022 
Qui?onsl)iiry  v.  Culvor  i.  417 
Qucriiia  Stamplialia,  The  ii.  60 
Quicif  u.  Kittridgo  i.  392 
Quiniby  v.  Vanderbilt  ii.  214 
Quincov  V.  Ex  parte  ii.  247 
V.  Cooke                        i.  416,  419,  422 


Rabonc  v.  Williams    i.  462,  526, 

567, 

668, 

671, 

595, 

046 

Rahorg  V.  Peyton 

ii. 

5;J5 

Hahy  r   Ridohalgh 

i 

456 

Radford  r.  Mclntosli 

i. 

426 

V.  Nowoll 

ii. 

003 

I'.  Wostoott 

i. 

123 

Rngdsalo  r.  Howker 

.  79 

0.  Oossott 

i. 

246 

Ral.illy  V.  Wilson 

i.  15,  03,  94 

Raikos  r.  Todd 

ii. 

602. 

571 

Railroad  r.  Koontz 

3.S7 

V.  Pratt         ii.  159,  107,  1 

72, 

wi 

174 

175, 

209 

I'.  Stocknrd 

ii. 

197 

Railroad  Hank  r.  Lowoll 

410 

Railroad  Co.  v.  Falconer 

428 

I'.  lianning 

681 

I'.  Howard 

406 

V.  Manufacturing  Co. 

(157 

(>.  National  Bank           i. 

386;  ii. 

171 

V.  Poor 

i. 

303 

Railroati  Companies  i'.  Schutto 

i. 

429 

Rail  ton  c.  Hodgson 

i. 

562. 

507 

Railway  Company  i>.  Allcvton 

i. 

390 

Rainsford  v.  Fonwick 

i. 

111. 

119 

Rainwater  r.  Durlian 

i. 

110 

Ralls  I'ounty  r.  United  States 

i.  410, 425 

liainazotti  r.  Bowring 

i. 

529 

Ramsbottom  c  Mortloy 

ii. 

007 

Ramsdon  r.  Broarloy 

i. 

215 

r.  1  )y8on 

i. 

593 

Ramsgato     Victoria     Hotel 

Co 

.    r. 

(■ol(lsn)id 

i. 

304 

Ramsgato    Victorial     Hotel 

Co 

.    1'. 

.Montotioro 

i. 

.304 

Rnmsliiro  v.  Bolton 

i 

315 

Randall  c.  Krrington 

i 

(121 

)'.  Howard 

i 

606 

r.  liUnt 

i. 

•J29 

RaniU-ll's  (^aso 

i.  '••4 

Ranger  r.  (iroat  Western  Rv. 

Co 

i 

310, 

33-j;  r 

W. 

000 

022 

Rankin  r.  Tlio  American  Ins. 

C( 

1.     i 

628 

r.  Waguolin 

i.  37,  3!) 

r.  West 

i 

2-.'8 

Rami  r.  Hughes 

ii 

.  rc>4 

Rimnoy  r.  Barlow 

i 

,V.t5 

Kapliaol  r.  (loodman 

i 

(•)10 

Bapploye  »•.  Adoe 

ii 

,^^,02 

Ratcliffo  r.  Davis 

i. 

105 

197 

Rathhono  c.  Budlong 

i 

6;5« 

Raun  tv  Reynolds 

i 

457 

Ravenscroft  v.  Hunter 

ii 

.592 

Raw  r.  I'ote 

i 

205 

Rawlins  v.  Wickhara          i.  326, 

827, 

466 

I' 


WW 


i'-  '( 


Ixviii 


TABLE  OP  CASES  CITED. 


Paoi 

Rawlyns  v.  Vandyke  i.  163,  181,  182,  l'.)5 

PawHuri  V.  Spviigier  i.  '£i'I 

Key  r.  Siiniiiuns  i.  77 

Kaybold  t;.  Kaybold  i.  222 

liayiiiond  v.  lieariiard  i.  14,  21 

t>.  LoyI  i.  114 

V.  Sfllick  i.  87 

Rayner  v.  Grote  i.  570 

Kead  >.'.  Anderson  i.  iAH 

V.  Nash  ii.  677 

V.  lA'gard       i.  143, 152,  158,  161,  li»2 

V.  Pliittsmoutli  i.  422 

Rende  r.  Coinniercial  Ins.  Co.     i.  266,  208 

Htadlioad  f.  Midland   Railway  Co. 

ii.  93,  04, 1)5 


Rcmick  v.  Sandford 
Ui-mii'r  o.  Ringrove 
Renaux  v.  Tc-akle 
Renean  v.  Teakle 
Kennie  v.  Morris 


Paoi 

ii.  286.  435,  496 

i.  290 

i.  110,  152 

i.  163 

i.  132,  323 


Reavis  v.  Rcavis 
Rebecca,  In  re 
Reildel  v.  l>(ibrce 
Tiedden  v.  Baker 
Redfield  V.  Tegg 
Redgrave  v.  Hurd 
Redlich  V.  Doll 
Redpath'g  Case 
Redpath  v.  Wigg 
Red  Hock  r.  Henry 
Reed  r.  Abbey 

V.  Batchelder 

f.  Bditliears 

V.  Evans 

V.  Modraw 

V.  Mi-ore 

V.  Norris 

V.  Heed 

V.  Robinson 

V.  Warner 
Reedie  c.  L.  &  N.  W,  Ry 
Reep  V,  Goodrieli 
Rees  V.  Wrtters 
Reese  v.  Beck 

V.  Ruth 
Reese  Silver  Mining  Co.  v.  Smith 


Co. 


i.  1H6 

i.  636,  641 

i.  70,  87 

i.  138 

i.  92 

i.  60«1 

i.  397 

i.  3M2 

i.  493 

i.  423 

i.  16,  93 

i.  118 

i.  130 

ii.  5.37 

ii.  644 

i.  161,  179 

469,  502 

i.  165 

i.  82 

463,  469,  602 


1. 


1.  340 
ii  603 
i.  201 
i.  695 
i.  82 
I.  324, 
325,  613 
Reese  Silver  Mining  Co.,  In  re ;  Smith's 

Case  i.  325 

Reeside,  The  i.  527,  5ti0 

Reeve  r.  Conyngham  i.  lt>3 

I'.  Davis  i.  291 

Reeves  /■.  Capper  i.  47,  104 

c.  The  State  Bank  1-  594 

V.  VVfiister  i   IfiO 

Regeio  v.  Braggiotti  i.  409 

Regina  v.  Churchwardens  of  St.  Mich- 
ael ii.  274 
I',  fieiicral  Cemetpry  Co.  i.  328 
I'.  Inhabitants  of  Lee                  ii.  247 
Roherd's  Adm.  v.  Clem  i.  '.♦« 
Rehoboth  r.  Hunt                                i.  469 
Rcid's  Ciise                                   i.  128,  350 
Reld  I'.  Hoskins  i.  17 
r.  Teaklo                                 i.  162,  158 
Roillcy  V.  Reillpy                                 i.  198 
Reilly  »•  Oglebay                                   i.  2m» 
Reinicker  v.  Smith                               i.  147 
Relf  »'.  Hundel                                      i  387 
Relyea  v.  Rolling  Mill  Co.                  ii.  66 


Renssalacr  &  Washington  Plank  Road 

Co.  V.  Westel  i.  402 

Reorns  v.  Lewis  1.  267 

Reuss  V.  Picksley        ii.  616,  663,  600,  674 

Renter  i-. Electric  Tel.  Co.  i.  320,  603 

Revens  v.  Davis  i.  482 

Rex  V.  Bank  of  Fngland  i.  320 

V.  jiiggs  i.  320 

V.  Collector  of  Customs  i.  482 

V.  Coin  i.  378 

V.  Corporation  of  Bedford  i.  424 

V.  Dvson  i.  146 

V.  Ffintan  i.  187,  192 

r.  Forrest  i.  378 

V.  Great  Mario w  i.  378 

V.  Hales  i.  397 

V.  Head  i.  378 

V.  Hull  Dock  Co.  ii.  222 

V.  Justic'  de  Dorchester 

V.  Pritchard 

V.  Richardson 

V.  Rodd 

t.  Shalfleet 

V.  The  Commissioners,  &e. 
V.  The  Mayor,  &c.  of  London 
V.  Win  wick 
V.  Wykes 
Reynell  i*.  Sprye 
Reynolils,  Ex  parte 
V.  Carpenter 

V.  Continental  Insurance  Co. 
V.  Harris 
«;.  Hiwett 
V.  Hicks 
V.  Jex 
V.  New  Salem 


378 
146 
222 
222 
222 
222 
222 
379 
378 
452 
454 
581 
i.  487 
i.  457 
i.  465 
i.  468,  402 
ii.  11 
i.  409 


I. 

i. 
ii. 
ii. 
ii. 
ii 
ii. 

i. 

i. 

i. 

i. 
ii. 


V.  North  Eastern  Railway  Co.    ii.  91 


V.  Swettser 

»',  Tappan 
Rhadamanthe,  The 
Rhea  v.  Rhenner 
Hibon  r.  Railroad  Companies 
Uicc  V.  Austin 

i;.  Boyer 

V,  ("arter 

V.  Peat 

V.  Peet 

I'.  Railroad  Co. 
Shepherd 


I. 


i. 
i. 


V. 

Rich  r.  Vnc 

r.  Hatliaway 
Sydenham 


113,  183 

i.  291 
2«)3.  279 
193,  206 
i.  404 
i.  409 
i.  133 
ii.  5S1 
i.  14H 
I.  138 ;  ii.  270 
i.  240 
i  194 
260,  260,  2'.il 
ii.  5;!.) 
i.  147 


Richards,  In  re ;  Ex  parte  Astbury  ii.  24'.', 

240 
In  re,  Shenstonc  v.  Brock      i.  65,  69, 
70,  78,  82,  89 
V.  Allen  i.  24 

V.  Burroughs  ii.  f>03 

V.  Delbridge  i  *5 

V,  Insurance  Co.  i.  297 


% 


TABLE  OF  CASES  CITED. 


Ixix 


Paob 
435,  495 
i.  290 
119.  152 
i.  163 
132,  323 
Uoad 
i.  402 
i.  267 
,  GOO,  074 
.  320.  603 
i.  482 
i.  320 
i.  320 
i.  482 
i.  378 
i.  424 
I.  140 
i.  187, 192 
i.  378 
i.378 
1.397 
i.378 
ii.  222 
i.378 
i.  146 
ii.  222 
ii.  222 
ii.  222 
ii  222 
ii.  222 
i.  379 
i.378 
i.  452 
i.  454 
ii.  581 
i.  487 
i.  457 
i.  465 
i.  468,  4512 
ii.  11 
i.  409 
Co.    ii.9l 
i.  113,  W3 
i.  2'.«1 
i.  2«J3,  279 
I.  193,  206 
i.  404 
i.  469 
i.  133 
ii.  5«1 
i.  146 
138 ;  ii.  270 
i.  210 
i   1'.'4 
^60,  209,  2'.'l 
ii.  fi:'.o 
i.  147 
Ibury  ii.  24'i. 
■  240 

,,       i.  66.  69, 

h  78.  H2.  h;J 

1.  24 

ii.  503 

i.:W 

i.  297 


idon 


Co. 


Paoi 

Vxem 

Ricliardg  v.  Porter     ii. 

530,  645,  646,  649 

Robbins  r.  Eaton 

i.  118 

Richardson's  Case 

i.  86 

V.  Fennell 

i.  462 

i.  324,  34« 

V.  Laaweil 

i.  468 

Kiclianlson  v.  Adams 

i.38 

Robert  A.  I<ane.  In  the 

i.  267 

V.  Cooper 
V.  I)u  Bois 

ii.  644 

Roberts  c.  Adams 

i.  399 

i. 

144,  158,  192 

V.  Austin 

i.  638,  541 

V.  Duncan 

i.  405 

V.  Beatty 

i.  31 

V.  Dunn 

ii.  451,  482 

V.  Bolles 

i.  389 

V.  Godtlard 

!.  636 

V.  LI03  d 

s.  205 

V.  Goss 

ii.  454 

V.  Watkins 

i.  205 

r.  Hooper 

'.1.  ;jir> 

p.  Wiggin 

i. 

118,  123,  126 

I'.  lluK^itt 

i.  501 

V.  Wilcoxson 

i.  234 

V.  Jones 

i.  465 

Robertson  v.  Bul'.ions 

i.  20 

V.  Lincoln 

i.  91 

V.  Jackson 

i.  276 

i;.  Merrill 

i.  218 

V.  Lynch 

1.  14,  21 

V.  Olmstcad 

i. 

15,  93,  94,  97 

t'.  Lyon 

i.  137 

V.  Richardson 

i.  tin,  51 

V.  Robertson 

i.  190 

V.  Hiiknian 

ii.  277 

Robins  I'.  Enibry 

i.  297 

V  Squires 

ii.  310 

Robinson's  Case 

i.  383 

V.  Strong? 

i.  142 

In  re  Peruvian  Ry. 

Co. 

i.  355,  356, 

V.  Tiio  Countess  of  Oxford         i.  624 

357,  366 

V.  Younjje 

i.  699 

Robinson  v.  Aix>U 

ii.  534 

Richmond  r.  Irons 

i.  379 

V.  Bank  of  Darien 

i.  392 

V.  Ricliniond 

i.  186 

V.  Batchclder 

ii.  310,  644 

Riclc.'jrd  V.  Moore       ii. 

418. 

426,  427.  428, 

V.  Commonwealth  Ins.  Co.          i.  259 

429, 4.30, 431, 4.')4,  460, 

401 

402. 463,  464, 

V.  Daucliy 

i.  650 

465,  406,  407,  469, 

471, 

472,  493.  494 

V.  Georges  Ins.  Co. 

i.  269 

Ricketts  V.  Bennett 

i.  606 

V.  (losnold 

i.  1!>2 

Riikev  V.  Tunbroeck 

ii.  303.  502 

V.  Hoskins 

i.  130 

Hi.Miii  V.  Tiirall            i 

.62, 

63,04,09,71 

V.  Lane 

i.  394 

Riiliik'  1'.  Varnum 

ii.  502 

V.  Lyall 

i. 

245.  255.  266 

Killer  >'.  Hulse 

i   150,  216 

1;.  Jvlemphis  &  Charleston  R.  R. 

i:  Union  India  Rubber  Co.         i.  298 

Co. 

ii.  55 

Ridgwiiy,  /fe 

i.  47 

V.  Mollett 

i. 

312,  667,  596 

I'.  Darwin 

i 

138,  H5,  148 

V.  Noble's  Admrs. 

i.  .30,  31 

V.  Inijram 

ii.  581 

V.  Reynolds 

i.  'M\ 

•  V.  Wliarton     i.  675 

;  ii. 

605,  650.  651 

V.  Ring 

i.  62.  77 

652,  653,  060,  0«t> 

V.  Ruttor 

i.  571 

Riepel  v.  Wooley 

i.  60 

V.  Smith 

i.  297,  299 

lUga,  The 

i.  266,  284 

V.  Stadeker 

i.  217 

Kigiit  V.  Bucknell 

i.  205 

V.  Wallace             i. 

1.50, 

151,  216.  222 

r.  CuttrcU 

i.  624 

«'.  Weeks 

i.  123,  126 

Rightcr  '■.  Alamon 

i.  686 

r.  Wilkinson 

i.  6;j0 

Riggs  V.  American  Home  Missionary 

Robinson  &   Preston's 

Brewery  Co., 

Soc. 

i.  138 

In  re;  Siilney's  Case 

i.  367 

V.  American  Tract  Soc. 

i.  139 

Robson  r.  Drutnmond 

i.  570 

I'.  Lindsay 

i.  684 

Roche  >\  Laild 

i.  301 

Rieonoy  i>.  Ncrinan 

1.  158 

V.  O'lirien 

i,  4.-4 

Rili'V  r.  Farnsworth 

Ii.  659,  562 

Rocher  r.  Busher 

i.  261,  205 

V.  .Mailorv 

i.  123.  126 

Rochfort  V.  Hly 

i.  Ill 

V.  .MitclicU 

i.  233 

f.  Hnnu! 

i.  145 

Rinii  >:  .Jolin.son  County 

i.  321 

Rock  r.  Fninierling 

i.  585 

Rinu'lovc,  The 

i.  290 

Rock  River  Bank  r.  Sherwood          i.  303 

Kiiiiio  i:  llimis 

i   596 

Rockwell  iv  Rockwell 

i.  13 

Rio  (irande  Do  Sul  Co. 

,rn 

re            i.  290 

Rodgers  v.  .Jones 

ii.  409,  rm 

Riploy  V.  Buhcock 

i.  138 

I'.  Phillips 

ii.  433,  4:15 

Rippy  r.  (iaunt 

i.  142 

Rodick  1:  CJandell 

i   5!tl 

Risl>()urfj  i:  Bruckner 

i.  615 

Rodwell  1".  Phillips      ii. 

224, 

225,  235,  2.;8 

Rishton  t:  Whntinore 

U.  666,  672 

Roe  V.  Birkenhead  R/. 

Co. 

i   610 

Ritch  1'.  Hyatt 

i.  238 

V.  Harrison 

ii.  025 

Ritchie  r.  Franklin 

i.  418 

Rogers's  Case 

i.  355.  ;i04 

Rivers  /'.  Orcg(i 

i   121 

Rogers  v.  Atkinson 

li.  643 

Roads  1'.  TrunipinRton 

ii.  240 

V.  Boehm 

1  ♦108 

Riilil)  r.  Mudge 

i.  500 

V.  Burlington 

i  417 

Hobbins  v.  Chicago 

i.  681 

V.  Hastitigs  &  Dakota  Ry.  Co.    i.  298 

Ixx 


TABLE  OF  CASES   CITED. 


I 


■':( 


ii: 
I 


Paoi 

Rogers  i-.  Kneeland    ii.  571,  573,  616,  65i3 

V.  March  i.  616,  6-i6 

V.  HogiTH  i.  454,  466 

17.  Saunders  ii.  002 

V.  Turner  i.  110 

f.  Union  Cent.  Life  lus.  Co.       i.  150 

I'.  Ward  i.  205 

Roget  V.  Merritt  ii.  505,  602 

Koiide  V.  'Inwaites    ii.  254,  250,  334,  XMi, 


Roland  v.  Logan 
Rolfe  0.  Abbott 
Roils  I'.  I'earce 
Rondeau  v.  Wyatt 
Rood  V.  Willey 
Roof  V.  Stafford 
Roosevelt  v.  Brown 
Root  V.  French 


341,438,460,476,404,604 


1.  103 

i.  Ill,  121 

i.  .1.3 

ii.  217,  230,  530 

i.  247 

i.  118, 123 

i.  3SW 

i.  331,  407 


i;.  The  Great  Western  R.  R.  Co. 

ii.  127,  128,  130,  131,  132,  133, 

136,  109 

V.  United  States  Express  Co.    ii.  1.32, 

133 

Roper  V.  Holland  i.  657 

Rosa  V.  Pratiier  i.  2.34,  237 

Rose  I'.  Hates  i.  103 

V.  Daniel  i.  110,  128 

V.  Hart  i.  639 

V.  Mynott  i.  8-3,  452 

I'.  Story  i.  07 

Rosewarn  v.  Billing  i.  600 

Ross  r.  Kstates  Investment  Co.         i.  348 

V.  iTolinson  i.  552,  657 

V.  Noel  i.  108 

V.  Parkyns  i.  480 

V.  Tiie  Active  L  266,  208 

I'.  Tlu'  Ship  Active  i.  278 

V.  Welch  ii.  435 

Rossitor  V.  Miller       ii.  60.'),  608,  618,  019, 

620,  656,  657,  058,  660,  662,  666 

V.  Rossiter  i.  486;  ii.  40,  41,  71 

V.  Walsh  "     ' 

Rotch  i\  Mills 

Rotliscliild  r.  Brookman 

V.  Kiial) 


Rothwcll  i:  Devves 
Rourke  r.  Story 
Routli  r.  Thompson 
Rout  ledge  i'.  (Jrant 

r.  Kamsey 
Po-v  r  Dawson 
Ro»v--  V.  Mopwood 

V.  Pickford 

I'.  Sharji 

V.  Smith 
Rowlmulson,  E.r  parte 
Rowley  V.  Bigclow 
Rowls  V.  Ciclls 


i. 


i.  452 

i.  15;] 

i.  312 

23-',  230 

i.  457 

i.  695 

i  023 

i.  306 

ii.  309 

i.  501 

i.  127,  129,  130 

ii.  451 

i,  08 

i.  231 

i.  .50<l 

i.  550  ;  ii.  5H 

ii.  222 


Roval  British  Bank,  The,  v.  Nicol    i.  3U) 

i:  Turqiiaiid  i.  407,  OHO 

Rudiie  '••  Bowman  1.  544 

Ruddock  V.  Marsh  i.  152,  1.58 

Ruflin,  Exjtnrte,  i.  6<lO 

Rugcly  I.'.  Robinson  i.  380 

V.  Sun  Mutual  Ins.  Co.  i.  201 


Rugg  V.  Minett 
Uuggles  V.  General  Ins. 

V.  Lawson 
Rummens  v.  Robins 
Uumney  v.  lieyes 
Rushford  r.  Hadfield 
Rusk  V.  Fenton 
Rusling  V.  Uusling 
Russell  V.  Bodwill 

V.  Clark's  Kx'rs 

V.  Langstaffe 

V.  Lee 

V.  Long 

V.  Mosely 

V.  Wiggin 
Ruston's,  John,  Case 
Hutan  V.  Hinchman 
Rutherford  v.  Coxe 
Rutland  v.  Paige 
Hyall  V.  Rolle 
Ryan  v.  Sams 
Rycroft  v.  Chrysty 
Ryde  v.  Curtis 
Ryder  i'.  Bickerton 

V.  Hathaway 

i;.  Wonibwell        i. 


Rymes  v.  Clarkson 


Paoi 

i.  85 ;  ii.  250 

Co.        L  614,  616 

i.  91 

ii.  606 

L  113, 165,  160 

ii.  120 

i.  130 

i.  241 

i.  199 

i.  404 

i.  309 

i.  118 

i.  244 

iL  626,  671 

ii.017 

i.  146 

ii.  271 

i.  105 

i.  422 

i.  104.  445,  450 

i.  168 

i.  67 

ii.  520,  571 

i.  454,  406 

i.  20 

110, 118, 119,  120, 

121,  122 

ii.  592 


ii.  89 

ii.  573 

ii.  600 

ii.  409,  502,  504 

i.  2H9 
ii.  537 
ii.  235 

i.  284 


s. 


Sack  V.  Ford 
Sackett  v.  Palmer 
Safford  v.  Downing 

I'.  McDonoitgh 
Safford,  The  William  F. 
Sage  V.  Wilcox 
Sainsbury  v.  Matthews 
Salacia,  The 
Sale  V.  Lambert         ii.  018,  620,  667,  660, 

666 
Salisbury  v.  Black's  Adm'r  i.  392 

Salmon  Falls  Manuf.  Co.  v.  Ooddard 

ii.  640,  547,  570,  693,  628,  054,  673 
Salomons  v.  Laing  i.  390 

v.  PenJcr  i.  560 

Saltmarsh  r.  Bcane  i.  465 

Sammell  v.  Wrinlit  ii.  91 

Samuel  v.  Marshall  i.  142,  1 IH 

Samsun  v.  Braggington  i.  2i.O 

San  Antonio  »•.  Lewis  i.  320 

V.  Mehaffy  i 

Sanborn  c.  Flagler 

I'.  (loodhue 
.'^andeman  >•.  Saur 
Sanders  r.  Davis 

I'.  St.  Ncot's  Union 
Sanderson  r.  Baker 

V.  Lamberton 

V.  Walker 
Sandford  ;<.  Vaughan 
San  Diego  r.  Railroad  Co. 
Sandilands  v.  Marsli 


397,  408,  412,  432 

ii.  545,  603,  «n2 

i.  47 

i.274;  ii.  K.) 

ii.  247 

I.  817,  .'120 


010 
524 
4r)9 
053 
3(13 
4HG 


Sands  ti.  Taylor 


i.  271 ;  ii.  313,  368 


t4 


TABLE  OP  CASES  CITED. 


Ixxi 


Paob 

;  ii.  2&« 

614,  615 

i.  ai 

li.  605 

166,  166 
u.  liiO 
1.189 
1.241 
1. 1«'.> 
i.  404 
I.  31)9 
i.  118 
i.244 

u  526,  671 

ii.on 

i.  146 
ii.  271 
i.  165 
i.  4'22 
4,  445,  450 
i.  158 
i.  67 
ii.  526,  671 
i.  454,  406 
i.  20 
8, 119. 120, 
121, 122 
ii.  5»2 


Paob 
Sanford  f.  The  Trust  Fire  Ins.  Co. 

ii.  674 
Saiifier  r.  Upton  i.  391,  401,  402,  427 


Sariili  Ann,  Brig 
Surali  Ann,  The 
.Siirchet  r.  Tile  Uavis 
Sanl  i:  lihodi'S 
.Sargent  r.  Morris 

r.  Webster 
Sari  r.  Uourdiiion 
Saunders  i'.  Mann 

V.  Topp 


i.  5!)4 

i.  273 

i.  27lt 

ii.  278 

ii.  679 

i.  297 

ii.  606,  607,  650 

i.  118 

ii.  371.  372,  373,  374,  397, 

460,  491 

V.  Wakefield        ii.  516,  62?  ''•«,  524, 

527,  o.y.i,  637,  541,  54i„   .32,  55.J, 

663,  568,  5^0,  5'.>5 

Sauiiderson's  Case  i.  330 

Sauiiderson  o.  Gritflt'.is  i.  623 

I'.  Jackson   ii.  511,  613.  629,  672,  687, 

589,  694,  602,  007,  046,  0«9 

V.  Saundcrson  i.  145 

Savage  v.  Davis  i.  153 

V.  Foster  i.  135 

V.  Insurance  Co.  i.  499 

V.  O'Xeil  i.  150 

Sav,.'ry  v.  f^ypiier  i.  585 

Saville  i'.  itobertson  i.  46'J 

Savings  Banic  v.  Atchison,  &c.  R.  R 


ii.  32 

i.  87 

i.  377 

i.  62,  88 

i.  240 

i.  459 

i.  52:} 

1.  l.J8 

i.  152,  153 

388,  391,  402,  403,  427 

i.  140 


Co. 

V.  Cuppa 

V.  Davis 

V.  Fogg 

V.  Scott 
Savory  v.  King 
Sawin  v.  Kenny 
Sawtelle's  Apjieal 
Sawyer  v.  Cutting 

!'.  Iloag  i 

V.  Lutkin 

f.  Merrill  i.  26 

Saxiin  I'.  Harksdale  i.  460 

Saxton  V.  Heed  i.  291 

Say  r.  Barwick  i.  147,  14« 

Sayers,  A'.r  parte  i.  440 

I'.  Birniingtiam  Gas  Co.  ii.  412 

Sayre  c.  Nichols  i.  5'J'J 

Scadding  c.  Lorant  i.  376 

Scannnon  i:  City  of  Cliicago  i.  5x1 

V.  Kimball  i.  391 

Scanlan  l:  Cobb  i.  140,  14(i 

ScliiiK'k  r.  Saunders  i.  15,  101 
Scliiiiectaily  &  Saratoga  Plank-road 

Ci).  >:  Thatcher  i.  404 

Sehidlelin  v.  Xew  York  Ins.  Co.     i.  260, 

2'.t2 

'•.  Stewart  i.  465 

Si'liiiiinielpennich  w.  Bayard  ii.  31 

I  Scl iling  (,'.  Thoinlinson  i.  462 

Si'liiiialtz  r.  Avery  i.  627,  570 

Scliiiiidlapp  i>.  Currie  i.  500 

1  Schneider  v.  Evans  ii.  214 

r.  (iarland  i.  2H8 

r.  Norris      ii.  613,  629,  687,  501,  ♦K»2. 

007,  029 

I  School  District  v.  Bragdon  i.  134 


Paob 

School  District  v.  Insurance  Co.       i.  428 
V.  Stone  i.  420,  424 

Schooner  Freeman  v.   Buckingham 

i.  207;  ii.  47,  61,  63,  54,  56,69 
Schooner  Tilton,  The  i.  25'J,  405 

Schrinishire  v.  Aldcrton  i.  568,  571 

Schroder's  Case  i.  10 

Schroder's    Case,  /n   re    Mercantile 

Trading  Co.  i.  31 

Schroeder  v.  The  Hudson  River  R. 

K.  Co.  ii.  214 

Scliuiiardt  r.  Aliens  i.  584 

Schulenl)erg  /■.  llarriman  ii.  240 

Scliult/  r.  Bosnian  i.  208 

Scliusterr.  .Mcivellar  ii.  89 

Seiiutz  V.  Jordan  i.  26 

Scio,  The  i.  284 

Scotliorn  c.  South  Staffordshire  Ry. 
Co.         ii.  70,  81,  80,  102,  111,  126,  1.30, 

15.j,  150,  157 
Scotland  County  v.  Hill  i.  ;«2 

Scott  V.  Busii  ii.  276,277,  514 

V,  Conway  i.  231 

V.  Davis  i.  459,  466 

V.  Depeyster  i.  298 

V.  Dixon  i.  316 

V.  Kastern  Counties  Ry.  Co.       i.  599 
V.  Kreeland  i.  299 

t;.  Hudson  i.  227 

V.  Irving  i.  678,  686 

V.  Lannian  i.  87 

V.  Lord  Kbury  i.  641 

I'.  Maiiby  i.  151 

V.  Parker  ii.  523 

i:  IVttit  ii.  454,  477 

V.  Savings  Bank  i.  07,  77 

V.  Surnian  i.  446 

V.  The  Kastern  Counties  Ry.  Co. 

ii.  217, 289, 303, 334,  365, 404,  4.38. 
443,  456 


V.  Ward 
V.  Watson 
Scott  &  Manby's  Case 
Scott's  Kx'rs  r.  (Jorton 
:  Si'ovidl  r.  Boxall 
'  Seovill  r.  Thayer 
I  Serinigeour'.s  t  'hiiin 
'  Scrimsliire  r.  .Md^rton 
Scrngnani  r.  Carter 
Seudilcr  r.  Bradbury 
I  V.  \'an  Aiiiiiurgli 

I  r.  Wiirstcr 

Seull  V.  Briddle 
Sealier  r.  ilavvkes 
Scaliorne  r.  .Madily 
Sealirooke  r.  Hose 
Seagood  r.  .Mealo 
Searle  r.  Keeves 
!  c.  Scovell 

Sears  c.  Brink 
j  ('.  Winirate 

Soaton  r.  Benedict 
Seaver  r.  Coburn 
V.  Phelps 
'         V.  Seaver 


234 

i.  134 

i.  195 

i.  454 

ii.  228,  231 

i.  390,410 

i.  346 

1.29 

i.  497 

i.  98 

i.  382,  3H6 

i.  26 

i.  2.'')3 

i.  527,  r,;W 

i.  Ill 

i.  4K2 

ii.  573,  tiJO 

ii.  32(»,  330,  436 

1.  293 

ii.  560.  575 

ii.  57 

i.  152,  179 

i.  601 

i.  138 

i.  192 


#1; 
li'l 


;!|t' 


m 


.■1 


Ml 


Ixxii 


TABLE  OP  CASES  CITED. 


Paoi 
Seavey  c.  Seavey  i.  (W,  Td 

Second  Nutiunal  Bank  v.  Walbridge 

ii.  58 
Secretary  of  State,  The,  t:  Kaiuacliee 

Uoye  Stilmba  i.  626 

Seed  ('.  KahkT  i.  2;j2 

Seeds  I'.  Kaldcr  i.  224 

Set^elbauni  v.  Ensuiinger  i.  155 

Scgrtdo,  Tlie  i.  277 

Seitz  r.  Mitchell  i.  150 

Selby  c.  Jiickson  I.  i:jl) 

r.  Selby  ii.  688,  689,  5U1 

Selden  i .  Ilondricksen  i.  207 

Self  V.  Cordc-ll  i.  24 

V.  Rladox  i.  882 

Selnia,  &c.  II.  U.  Co.  r.  Rountree      i.  2'.)7 
Selsuy,  Lord  i'.  Hlioadcs  i.  452 

Seinenza  r.  Hrinsley     i.  525,  574,  59(5,  640 
Semple  r.  Pink  ii.  517 

Senhousc  v.  (Miristiaii  i.  450 

Sergeant  v.  Franklin  Ins.  Co.     i.  380,  3'j;5 
Sergent  r.  Morris  ii.  484 

Sessions  v.  Mosely  i.  42,  86,  87,  8!) 

Seton  I'.  Slade     ii.  500,  510,  511,  50;5,  572, 

502,  594,  602 
Settembre  v.  I'litnani  i.  605 

Sevier  r.  Oreenway  i.  98 

Sewall  r.  Hoston  Water  Power  Co.  i.  40;5 
Sewell  V.  IJiirdiok 
Sewer  i'.  I'liclps 
Sexton '-.  Abbott 

V.  (iraliam 

V.  Sexton 

f.  Wlieaton 
Seymour  r.  Brown 

V.  Delancy 

V.  St  urges 

V.  Wykoti 


i  10:] 

.  142 

i.  94 

1.27 

i.  504 

i.  208 

i.  26 

i.  147 

i.  402 

i.  95 


Shackkford's  Case      i.  364,  355,  364,  306 


Sbadwell  r.  Shadwell 
Sliaeffer  r  Slieppard 
Shakspear,  In  re 
Shalcross  v.  Oldham 
Shannon  i;.  Bartholomew 

V.  Bradstreet 

V.  Shannon 
Shardlow  r.  Cotterell 
Sharinjrton  f.  Straton 
Sharlanil  v.  Brandt 
Sharniiin  r.  Brandt 
Sharon  r.  Salisbury 
Sharp  r.  rarroll 

f.  Kinniett 

t'.  Lii)8ey 

f).  Sharp 

V.  'I'iiylor 

I'.  United  States  Ins.  Co 
Bhattock  f.  Shattock 


i.  65 

i.  160,  246 

i.  215 

i.  502 

i.240 

i.  594 

i  200 

ii.  665,  066 

ii.  582 

i.  620 

1.500;  ii.  072 

i.  410 

ii.  270, 275,  276 

i.  627.  530 

ii.  816 

i.  240 

I.  f*:5 

!.  2itO 

i.  203 


Paoi 

Sliaw  V.  Port  Philip  Mining  Co.        i.  8U8 

V.  Siiaw  i.  24 

V.  Spencer  i.  405 

V.  Thackray  i.  147 

Shed  V.  Blakely  i.  2;i3 

Shechy  v.  Mandeville  ii.  278 

Shettleld  Nickel  Co.  r.  Unwin  i.  334 

Shetiield,    &c.    Permanent    Building 

Soc.  V.  Harrison  ii.  247 

Sheffield,  &(;.  Society  i.  3.17 

Sheid  ).'.  Stamps  ii.  600 

Sheidle  i-.  Weishlee  i.  236 

Sheldon  v.  Atlantic,  F  &.  M.  Ins.  Co. 

i.  590 

V,  Cox  i.  8,  9,  18 

Shcllington  v.  Howland  i.  374 

Shelthan  c.  (Jregory  i.  165 

Shelton  r.  Hoadley  i.  162,  155 

V.  Merchants'  Bank  ii.  56 

V.  Pendleton  i.  152,  186 

17.  Springett  i.  112 

Shemerhorn  ;;.  Loines  ii.  412 

Sheustone  v.  Brock,  In  re  Richards 

i.  05,  69,  70,  71,  78,  82,  89 
Shephard  v.  Murphy  i.  .322,  323 

Shepherd  i;.  Gillespie  i.  323,  351, 354,  355, 

371 

V.  Hampton  i.  31 

V.  McKone  i.  164 

V.  Pressey  ii.  495, 603 

Shepley  r.  Davis  i.  26 

Sheppard  v.  Johnson  i.  428 

V.  Murphy  i.  132,  346,  848,  371 

V.  Shoolbred  i.  550 

V.  Steele  i.  '2^1 

V.  The  Union  Bank  of  London  5.  107 

V.  Union  Bank  of  London  i.  046 

Sherburne  v.  Fuller  ii.  266 

Sheridan  v.  McCartney  ii.  '240 

Sherman  r.  Bank  i.  77 

I'.  Degrave  i.  2'10 

Shevman  County  r.  Simons       i.  421,  42'i 

Sherrod  v.  Langdon  i.  500 

I  Sherwin  v.  Sanders  i.  241 

j  Shewell's  Case  1.  128,  ;!50 

'  Shillibecr  v.  Jarvis  i.  o04 

,  Shindler  l:  Houston  ii.  304,  4.32,  433,  4'.t5, 

5(K),  .Wi 
Ship's  Case  i.  .127 

'  Ship  Fortitude,  The    i.  r;63,  267,  280 


1. 


Shaw,  JC.r  parte ; 
Co. 
V.  Coffin 
I'.  Fisl-.er 
f).  (la It 
V.  Mitohe'l 

V.  Nud-; 


In  re  Denton  Colliery 

i.  10 

I.  134 

i.  322,  845,  3.')2,  371 

i.  474,  475,  477 

I.  527,  500 

i.  14 


Ship  Middlesex 
Ship  PacV.c,  The 
Ship  (Vneral  Smith,  The 
Ship  Virgin.  The 
Shipbrook,    Loi-.i,   V, 

brook 
Shipley  r.  Davis 

V.  Kymer 
Shipman  v.  Haton 
Shipppy  V.  Dennison 
Sliipton  I'.  Thornton 
Shirley  r.  Heyward 
Shoemaker  r.  National  Bank 
Shoenberg  v.  Watts 
Shoolbred  v.  Baker 


;i30| 

2!M 

(iH.5 
2!12 
279  1 


201,278 
i 
i.  279,  280,  282 
Lord    Ilinch- 

i.  6i: 

ii,  2:i« 

i.  642 

i.  131 

ii.  587,  617.  (i.V2 

i.  274,  2!*l* 

ii.  30.'),  45.) 

i.  ot)3 

i.  5 

i.  158 


TABLE  OP  CASES  CITED, 


Ixxiii 


Paoi 

i.  808 

i  24 
i.  405 
i.  147 
i.  "lli 
ii.  278 

i.  334 

ii.  247 

i.  337 
ii.  600 

i.  236 

i.  500 

i.  8,  %  1» 
i.  374 
i.  Iti5 
i.  152,  155 
ii.  50 
i.  152.  1>*C) 
i.  112 
ii.  412 
ichnrils 
[1,78.82  89 
i.  322,  323 
J61,354,i|>5, 

i.31 

i.  104 

ii.  495,503 

i.  26 

i.  428 

,346,348,371 

1.  5uO 

1.  .1.^1 


Paoi 

Sliort  V.  Skipwith  i-  530 

Shortrcde  i'.  Clii-ek  ii.  670.  596,  647.  052. 

662.  071 
SliDultcrs  i:  Allen  i.  140 

SliDwcr  r.  I'ik'li  i.  33,  47 

Sliriw«l)ury  r.  Buckley  i.  31 

Sliritpsliire  c.  Itussfll  i.  503 

Sliiiniwav  r.  RutttT  i.  20 

Sluir:k-tli.'.  Millard  i.  123,120 

SluisttT  c.  Kaiser  i.  232 

Sii'lii-ll's  Case  i.  10 

SidTicy's  Case,  //i  re  Robinson  &  Pres- 
ton Brewery  Co.  i.  307 
Siiiiiurs  ('.  Kleeburg  i.  205 
Sievewriglit  v.  Archibald  ii.  320,  513.  523, 

50!  t 
Siffken  i:  Wray  i.  545 

SiL'Lters  c.  Kvans  i.  b2 

Sii-'lir  r.  Kiio.ic  County  Bar/k  i.  5(K) 

S:l<es  r.  Johnson  i.  134 

Silver  Lake  Bonk  v.  North        i.  303,  435 
Sinini  V.  A nj^io- American  Telegraph 

Co.  i.  003 

Siiiinionds  v.  Humble         ii.  411,  471,  401 

Simmons  t;.  Edwards  i.  207 

I'.  Law  ii.  214 

V.  Lillystone  i.  552 

I'.  Swift         ii.  210,  256,  320.  478,  4'.tl 

r.  The  South  Boston  liy.  Co.    ii.  531 

Siniuiens'  ILardware  Co.  v.  Mullen  ii.  500 


I  Slater  v.  Neal 
Slau(i;hter  (,■.  Green 
Slawson  V.  Loring 
Slay  ton  t;.  McDonald 
Slee  V.  Bloom 
Sleeat  r.  Tavel 
Sleeper  i-.  Bullen 
Slifer  V.  lieates 
Slim  I'.  Croueher 
Sloan  r.  Ship  A.  £.  I. 

V.  Torrey 

I".  Wilson 
SlocuH)  V.  Hooker 
Sloinan  v.  Bank  of  England 
Slubey  i:  Hay"      . 
Sn)all  t',  AttwooM 
Smart  v.  Hutton 

V.  Prujean 

V.  Sanders 

V.  West  Ham  Union 


Pass 
i.  165 

i.  06 

i.  600.  001 

i.  13 

i.  403 

ii.  681 

i.  436 

i.  82 

1.  315 

i.  207 

i.  220 

ii.  581 

i.  123, 128 

i.  309 

ii.  256 

1.  327,  461 

i.  610 

ii.  653 

i.  526,  697.  642 

i.  318 


Smedley  r.  Felt    i.  232,  233,  243,  243.  244 


Siiniin  r.  Metivier 
Siinonils  i\  Fisner 

r.  Wiiite 
Simons  V.  Steele 
Simoiiton  v.  Sibley 
I  Simpson's  Case 
Simpson  r.  (laxzam 
('.  Krnindiek 
I',  liobertson 


II.  321 
ii.  395,  307.  4'.t4 
i.  270 

ii.  534 
i.  408 
i.  304 
i.  500 

ii.  435 
i.  112 


Sims  r.  Bond  i.  402,  524, 526, 629,  530,  507 


V.  K .  erliardt 

V.  lliitehins 

V.  Sims 

V.  Walker 
ISinkin;;  Fund  Cases 
|Sinl{ler  r.  Turnpike  Co. 


i.  140 
i.  24 

33.  73 
i.  .38 

i.  415 

i.  302 


ISioiix  City,  &c.  R.  R.  Co.  v.  First  Na- 

I  tiiiiial  Bank  ii.  34 

Bir  .Xntiioiiy  Maine's  Case  i.  0 

tir.Folin  Kj^erton  r.  E-arl  of  Derby  i.  622 

|>ir  lliiiry  Webb.  The  ii.  11 

iir  T.  I'lnmer's  Case  i.  550 

Siter  i:  Marrs  i.  057 

Mofnls  V.  Luseombe  i.  0.'!4 

Skiiion  V.  Cole  ii,  657,  600 

Mi'liiiore  r.  Komaine 

|l<illiiian  I).  Loekman 

IkininT,  Kx  parte 

V.  Davton 

I',  lla'll 

1'.  Maxwell 

■.  MeDonall 

I'.  Stouse 

liji'k  r.  Tucrker 

llanniiig  v.  Style 


142 

505 

6:  to 

4<U) 

137 

132 

508 

i.  604 

i.  640 

i.  213 


Smoe  V.  Smee 
j  Srnethurst  v.  Mitchell 
Smith,  Ex  parte 

In  re 

V.  Adkins 

V.  Anderson 

i".  Aaton 

I'.  Attersoll 

r.  Aycr 

V.  Baker 

V.  Braine 

V.  Brennan 

i;.  Carr 

V.  Clarke 

V.  Clay 


I.  144 

i.  548,  662,  580 
i.  454 
i.  407 
i.  82 
i.308 
i.  422 
ii.  653 
L  460,  586 
i.  123 
i.  426 
ii.  434,  43fv  600,  603 
i.  146 
i.  16,  16,  26.  02 
i.  304 
V.  County  of  Clarke   i.  401,  425.  426. 
433,  434.  440 
V.  Craven  i.  479.  402 

V.  Davenport  i.  21K) 

V.  Dennie  i.  98 

V.  Dorsey    i.  36.  43,  40,  50,  51,  53.  64, 
55,  57.  58,  69,  03,  64,  05,  71 
V.  East  India  Co.  ii.  40 

V.  Kd wards  i.  500 

V.  Elliott  i.  142 

V.  Evans  i.  123,  126  ;  ii.  586 

V.  Fisher  ii.  503 

f.  (lortnan  i.  222 

V.  Hoilson  i.  530 

V.  Hmlson    ii.  324.  415.  416,  417,  418, 
421.  426,  430,  431,  4(54,  45K,  472. 
477,478.485,404 


Ilurd 

Ide 

Jeffreys 

Jones 

Kay 

Kittridge 

Lansing 

Martin 

Mawhood 

Mayo 

McGuire 


r.  Morse 


i.  207 

ii.  581,  682,  583 

ii  ti.'jO 

i.  14,  100 

i.  007 

i.  86 

1.304 

i.  258 

1.636 

i.  130 

1.  629 

i.  623,  601 


MMk 


IP'J) 


Mr    .  1 


ill'  !^ 


'A 


ij  1^^ 


I  :!| 


Ixxiv 


TABLE  OF  CASES   CITED. 


Paoi 

SmitJi  V.  Noale  ii.  515, 5fi3, 695, 598, 699,  vm 


V.  Xortliiiiiiptuii  Hank 

V.  OvursuLTs  of  St.  Michael 

V.  I'oor 

V.  Hanisi'y 

V.  IJolnTtson 

V.  Sai;  County 

V.  Kaviii;;s  Uunk 

I?.  SlicL'ly 

V.  Ski'ury 

V.  Sinitli 

V.  Sorliy 

V.   Ht'yliLT 


1.  :m 

ii.  •J4(» 

i.  "297 

i.  Mb 

i.  25'.) 

i.  4-M 

i.  67,  73,  75,  77 

i.  ;5(j:i 

i.  2it8 

i.  37,  40 

i.  01!» 

433,  «H4 


II. 


Surinan  ii.  221,  229,  230, 231,  238, 
33(i,  338,  339,  374,  378,  379,  397, 
435,  440,  447,  450,  474.  47f),  4".M, 
530,  04(i,  (I5;> 
Tc'l)bitt8  i. 

V.    Tlie    lloese    Silver 

Co. 
V.  Thome 
V.  Vodfjes 
i;.  Ware 
V.  Watson 
V.  Webster 
i;.  Weed 


130,  137,  144 

Minin); 

i.  324,  341 

ii.  309 

i.  208 

i.  110 

ii.  644,  070 

ii.  660,  600,  072 

ii.  023 

V.  Wilson  i.  5(50 

Smith's  Appeal  ii.  514 

Smith  Adinr.  Terry  i.  4'.i2 

Smyth  V.  Anderson     i.  508,  514,  516,  648, 
549,  502,  503,  664,  565,  508,  572 
r.  Oliver 
Sneatlh  n  r.  Grubbs 


Snee  r.  I'reseott 
Snell's  Case 
Snellgrave  v.  Bailey 
Snorer  v.  Blair 
Snow  r.  Carr 

i:  Warner 
Snowden  r.  Warden 
Snyder  i'.  Nations 
Soanies  v.  Spencer 
Soares  v.  Ralin 


1.  230 

i  9!) 

ii.  326,  481,  487 

i.  367 

i.  37,  39 

i.  101 

i.  657 

ii.  435,  502 

i.  527 

i.  140 

i.  623  ;  ii.  546 

i.  202,  203 


Paoi 
Souther  Life  Ins.  Co.  v.  Lanier  i.  2',t7 
Southerland  v.  Southerland  i.  Ul 

Southern  Express  Co.  v.  Dickson      i.  032 
V.  Shea  ii.  214 

Southwell  V.  Bnwditcli    i.  536,  537  ;  ii.  H21 
Southwestern  Kailroad  v.  Thornton  ii.  214 


Soutliwick  v.  Kstis 
Sowerby  v.  Butcher 

Spargo's  Case 
S|)ark8  i;.  Marshall 
Sparnian  v.  Kevin 
Sparrow  c.  Carrutlicrs 
V.  Cooper 


ii.  40 

i.  524, 627,  636, 570; 

ii.  517 

i.  10 

ii.  m> 

i.  123 

i.  206 

i.  033 


Society  for  Savings  v.  New  London  i.  410,  | 

(MM) 


«;.  The  Kvansville  &  Crawfords- 
ville  U.  It.  Co. 
Spartati  r.  Beneckc 
Speakman's  Appeal 
Spear  v.  Grant 

V.  Travers 
Speers  c.  Scwell 
Speight  V.  Gaunt 
Spence  v.  Chodwick 

V.  Union  Marine  Ins.  Co 
Spencer's  Case 
Spencer,  In  re 

V.  Tisne 
Spering  v.  Lauglilin 
Sperry  i'.  Haflam 
Sjicyers  r.  Lar.ibert 
Spu  er  V.  Cooptr 
Spittle  V.  Laveiider 
Spong,  ICx  piirtf 
Sprague  v.  BlaLc 

V.  Duell 

V.  Woods 
Spratt  c.  Ilobhonse 
S])ring  Valley  Waterworks  v 

tier  i. 

Sproat  V,  Matthews  ii, 

Si)rott  I'.  United  States  i 

Squier  i-.  Mayer  ii. 

St.  Andrews  Bay  Land  Co.  (>.  Mitci.eil 


i.  404 

i.  Ticn 

i.  2:i.') 

i.  4ntl 

ii.  463,  477 

i.  U'.' 

i.  cm 
i.  t;;;;i 
i.  047 
ii.  22i 
i.  21  Ki  I 
i.  154 

i.  232.  247 
i.  '2-lfi 
ii.  h'i 
ii.  «a| 

i.  527,  m 
i.  I.Jll 
ii.  270, 287,  289,  M 

i.  139,  140 

i.  t'2 

i.  4ii0| 

Scot- 

i.  .')Sej 

24o 


Sockctt  r.  Wray 
Soles  r.  Hickman 
Solly  r.  Uathbone 
Solon. on  V.  Garland 
Somers  v.  McLp.ughlin 

V.  Pnniphrey 
Somes  V.  Sugrue 
Sophie,  The 
Sorrell  v.  Carpen.er 
Sotilichos  I'.  Keu!p 
SoHch  I'.  Sfrawhridgv'' 
South   Australian 
Knndell 

V.  Rennie 


i.  203 
ii.  581 
i.  642,  OriO 
i.  247 
ii.  434,  500 
i.  142 
i.  259 
i.  261,280,  284 
i.  382,  3H3 
ii.  050  , 
ii.  513,  514 
Insurance  Co.  r.  I 

i.  14,  24,  20,  100  i 
i.  4 


St.  Cloud.  The 

St.  .lago  de  Cuba 

St.  John  V.  Van  Santvoord 


,  .3:'1| 
ii.  !•'-{ 

i.  2:4 
110,  ir.f 


See. 


of  Albany 
Co. 


South    Baptist 

Clapp 
South    of    Ireland    Colliery 

Waddle 
So'ith  Staffordshire  Railway  Co. 

Burnside 


308 
319 
386 


St.  Joseph  Township  v.  Rogers  i.  382, 4"; 
418,  432,  438,  440, 4411 
St.  Lawrence,  The  i.  2;1 

St.  Louis  &  San  Francisco  Ry .  Co.  i 

Wilson  i.  SnI 

St.  Louis  County  Court  v.  Sparks     i.  4:'l| 
St.  Louis.  &e.  Ry.  v.  Iliggins  i.  lli 

St.  Mary's  Church  i.  H 

Sface  w  Worth's  Case  i- ; 

Stacey,  Ross,  and  others  v.  Deey      i  'i^l 
Stackpole  v.  Arnold  i.  5110. 5' 

Stadfield  v.  Huntsman  i.  97,  W. 

Stadt  c.  Lill        ii.  514,  616,  625.  52(1. : 
638,  539,  543,  544,  645,  648,  .MO,  ^'^ 
654,  655,  561,  663.  570,  571,  67:1 

670,  694,  602,  61.-i,<i: 
Stafford  v.  Roof  >• 


i:  SiiJIi 

!'.   Tliu 

'•■  Thor 
1'-  Van 

'••   With; 

te  Hank 
'•  Leavi 
|ofato  Hoard 
,    Citizons' 
SuufTor  V. 
I  Stead  ,..  ])av 

'•  Velsoi 
,  '  Thorn 
|3teadinan  v. 


TABLE  OP  CASES  CITED. 


Ixxv 


Stapp  I'-  Elliott 
Stiiinliiink  '•.  Fenning 

V.  Kuriiley 
Staiiier  v.  Tvaen 


Paob 

i.  897,  &76 

i.  20;} 

i.  ;jl(j 

ii.  45,  72,  7li 

Stair  '•.  Tlie  York  National  Bank     i.  4uO 
Siiiilwortli  c.  Inns  i-  iSTO 

Staiiilli'V  r.  lleinn)ington  ii.  ;il2 

Stanfiini  r.  MarshiiU  i.  201 

Staiiilaiiil  r.  Willot  i.  'M 

btankv  r.  Dowdeswell  ii.  <5oO 


V.  Stanley 
Stanton  r.  Ciiinp 

r.  Wilson 
Star  of  Hope 
Stanrs  r.  Curling 
Stark  I'.  Coffin 
Siarr  r.  Vandcrheyden 
Starri'tt  r.  Wynn 
State  i:  Auckcr 

V.  Binder 

V.  IJriinur 

V.  Carr 

r.   County    Court    of 
County 

r.  Dill  Ins  County  Court 

I'.  Douglass 

I'.  Fuel  IS 

V.  (Jarroarte 

I',  (jretiie  County 

V.  (iregory 

V.  Hayes 

I'.  Ilodpe 

1!.  Lanier 

V.  Maeon  County  Court 

I'.  Mayor  of  St.  Joseph 

V.  Maysvillc,  &c.  11.  K.  Co 

V.  Northuinbcrlanil 

V.  Riehland 

t>.  Russell 

I'.  Sellner 

I'.  Sliortridge 


i.  20;j 

i.  5',« 

i.  113,  122,  184,  185 

i.  272 


I. 


I'.  Staflena 
V.  Stoll 
V.  Sutterfleld 
V.  Taff 

I'.  Winklcmeier 
I  State,  The,  v.  Carroll 
V.  DeWolf 
I'.  Sinit 

V.  Sullivan  County  i 

V.  Tlio  Chatham  Nat.  Bank 


i. 


v.  Thome 
I.  Van  Home 
V.  Withani 
I  State  Hank  v.  Cooper 

I-.  lioavitt 
I  State  Board  of  Agriculture  v.  The 

Citizens'  Street  lly.  Co.  i.  4-15 

Stauffcr  V.  Morgan  i.  221 

Stead  V.  Dawber        Ii.  815,  500.  527,  fi2rt, 
631,  632,  633,  035,  03(1,  038 
r  Nelson  j-  205 

i:  Thornton  i.  I "'2 

iSteadinan  v.  Gooch  I  034 


Paoi 
Rteadman  v.  Wilbur  i.  229 

Steam  Navigation  Co.  v.  Wood         i.  3U3 
Steamboat  Lehigh  v.  Knox  i.  2U*J 

Steamboat  Sultana,  The  i.  280 

Steaml»)at,  The,  Washington  Irving  i.  208 


ii.  523 
i.  304 
83,  453 
i.  105 
i.  378 
i.  438 
i.  l'.»3 
i.  433 
Sullivan 

i.  420,  434 

i.  425,  420 
i.  424 
i.  l'J3 
i.  420 
i.  420,  434,  440 
i.  230 
i.  585 
ii.  200,  207 
i.  244 
i.  420 
i.  438 

i.  434,  440 
i.  101 
i.  417 
i.  la3 
i.  193 

i.  430,  437 

i.  I'.t3 

i.  415 

438,  431) 

i.  410 

i.  438 

i.  411 

i.  140 

i.  220 

434,  43y 

i.  210, 

220 

i.  417 

i.  400 

i.  201  I 

i.  428 

i.  435 


Stearns  i\  iJoe 

V.  Hall 

V.  Raymond 
Stcdman  v.  Feidler 

V.  Hart 

V.  Martinnant 
Steeihnan  v.  Rose 
Steel's  Case 

Steel  I'.  State  Line  S.  S.  Co. 
Steele  i:  Babcuck 

V.  Hoe 

V.  Stuart 
Stceves  c.  Hopper 
Steinman  i-.  Magnus 
Stephen  i>.  Beall 
Stephens  v.  Badeoek 


1. 


205 
ii.  043 

20.  '.t3 
i.  207 
i.  142 
i.  ti39 

i.  ll'.»,  127 
i.  140 
ii.  89 
i.  405 
ii.  671 
i.  591 

21,  22 
i.  2f( 

!.303 
i.  4ti2 


1. 


V.  Broomfleld,  The  Great  Pacific  i.  287 

V.  Winn  ii.  681 

Stephenson  c.  King  i.  52 

I'.  Piscataquis  Ins.  Co. 

V.  lianney 
Sterling  v.  Pott.i 


V.  Sims 

V.  Wilkinson 
Stetson  V.  Faxon 
Stevens  v.  Briggs 

V.  Cooper 

V.  Dennett 

V.  Faucett 

V.  Low 

V.  Stevens 
Stevenson  v.  llardie 

V.  Newman 

V.  Newnham 

V.  The  State 
Stewart's  (^ase 
Stewart,  In  the  Goods  of 

V.  Aberdein 

V.  Conner 

V.  Cornier 

V.  Donnelly 

V.  Dunlop 

1".  F.ddowes 

V.  Lansing 

r.  Smith 

V.  Terre  Haute  &  I.  P.  Co.  ii 
Stilt  V.  Keith 


i.  266 

i.  96 

i.  154 

i.  226 

i.  69,  73,  74,  78,  82,  87 

i.  297 

i.  14,  101 

ii.  643 

i.  226 

i.  408,  492 

i.  13,  18,  23 

i.  52 

i.  198 

i.  650 

i.  330,  549 

i.  11 


i.  3.30 

ii.  064 

i-678 

i.  18 

i.  24 

i.  29 

i.  015 

ii.  (m 

i.  426 

i.  247 

72,174 

i.  132 


Stikanan  r.  Dawson  i.  134,  323 

Stiles  t:  Cowjyer  i.  594 

f.  McCl.ilan  ii.  514 

Still  V.  Iluidekopers  i.  597 

Stillman  v.  Hurd  i.  292 

Sioeken  r.  Patrick  i.  194 

Stockley  r.  Stoekloy  i.  147 

Stoekwell  c.  Cnited"  States  ;.  4'.»4 
Stoddert  r  Vestry  of  P.  T.  Parish  ii.  002 

Stokes  V.  Brown                   i.  118,  127,  1.30 

I'.  Moore  ii.  685,  688 

StoUewerck  r.  Thacher  ii.  48 

Stoman  v.  Bunk  of  England  i.  403 


i 


.'< 


!• 


m- 


f 

r 


!'  I 


■!  ■ 
i  i 
I  ■■ 

I  . 

(if 

lif: 


-1 

; 
t 

1 

1 

J' 

Ixxvi 


Stone  V.  Browning 
V.  Elliott 
V.  lliiiki'tt 
i;.  Miicnair 

V.  HoglTS 


TABLE  OF  CASES  CITED. 


Paoi 

ii.  435,  497,  408,  60() ' 

i.  888,  484 

i.  67,  73,  80,  82 

i.  106 

ii.  808  { 


V.  Till!  City  and  County  Rank  i.  330, 
331,  338,  380 

V  Wood  i.  <i01 

Stoneliousi'  r.  Gent  i.  208 

Stoiu'y  V.  American  Life  Ins.  Co.  i.  600 
Storrs  r.  Hiirber  i.  82 

V.  IJiirker  i,  604 

r.  City  of  Utica  i.  581,  605 


Surcome  v.  Pinniger 
Surles  V.  Pipkin 
Sutton's  Case 
Sutton  V.  Kettell 

V.  'rutliani 

V.  Wililers 
Ruydam  v.  Clark 
Suyduiii    V.    Tlie 

iiaiikin);  Co. 
Swain  v.  Seanicns 

V.  Slie|>lit'rd 

V.  Tyler 


Paoi 

i.  6<.i4 

1.  140 

i.  8:!0 

ii.  r>:i 

1 344,  500,  5;i2 

i.  (SIT 

ii.  G'J4 

Morris   Canal    & 

i.  301 

ii.  013 

ii.  453,  478,  4S3 


Story  *•.  Liviiijjston  i. 

I'.  Lord  Windsor  i. 

t<.  Salomon  i. 

Stoughtun  Scliool  District  v.  Atlicrton 

i. 
Stovall  i:  Johnson  i. 

Stoveld  /•.  lliiglics  ii.  453,  470, 


404 
606 

406 


400 
116 
477 

Stow  i:  Kimball  i.  4(il 

I-.  Wise  i.  20 

Stowell  V.  Robinson  ii.  530,  030,  631,  6;;2, 

043 

Stoyston,  &c.  Road  Co.  t;.  Craver    i.  375, 

370 

Strain  v.  Wriplit  i.  122,  128,  120 

Strang  r.  Hradiior  i.  404 

Stratford  r.  Buswortli  ii.  602,  020 

r.  Powell  i.  128 

Stre.'t  r.  Hlay  i.  16  ;  ii.  217,  305,  451,  452 


i.  110 
Swan  V.  "North  British,  &c.  Co,  i.  397,  SW, 

4(i:: 
Swancott  v.  Westgarth 
Swanwifk  v.  Sothern 
Sweeney  i'.  Spooner 
Sweeny  v.  Supir  Refining  Co. 
Sweet  V.  Harney 


V.  Colgate 

V.  Lee 
Swcetin{j  v.  Pearce 
Swift  I'.  Barnett 

V.  flewsbury 

I'.  Tyson 

V.  Williamsburg 

V.  Winterbotham 


V.  Street 
Streeter  i".  Sumner 


20(t 
386 


Stribley  v.  Lni)erial  Marine  Ins.  Co.  i.  616 
Strong  V.  Black  i.  107 

I'.  Grannis  i.  405 

V.  Holmes  i.  20 

Stronge  r.  Ilawkea  i.  205 

Stroiher  r.  Butler  i.  24 

Stnitt  I'.  Smith  i.  334 

Stuart  1-.  Lonl  Kirkwall  i.  201,  202 

Studds  V.  Watson  ii.  007 

Studdv  V.  Sunders  i.  KX) 

Studwell  V.  Shaptor  i.  133 

Stupcrt  V.  Arrowsniith  i.  30H 

Stormy  v.  Smith  i.  610 

Sturtevant  r.  Juques  i.  406 

?•.  Stnrin  i-  105 

Stntley  r.  Dickey         •  i.  500 

Sulliviin  I"  Sullivan  ii.  508 

Sully  r.  Frean  i.  334 

Sulian,  The  cargo  er  i.  258 

Sultnnii.  Tlie  Steiimhoat  i.  280 

Sujnmers  r.  City  Bank  i.  215 

r.  Wilson  i.  120 

Sumner  r.  Bromilow  ii.  247 

Sun  Ins  Co.  r.  Kountz  Lino  i.  400 

Sunderliuiil,  In  the  (^loods  of  ii.  053 

Supervisors  v.  Galhraith  i.  432 

V.  Schenk      i.  407,  408,  412,  418,  432, 

(iOO 

I'.  United  States  i.  437 

Supervisors,  Board  of,  r.  Budlong    i.  188 
Supervisors  of  Mercer  County  v.  Hub- 
bard i.  389 


i.  17 
ii.  470 

i.  m 

i.  2itfl 
i.  (l:;2 
i.  (i.')0 
ii.  n2('>,  5',)4 
i.  660,  578,  680,  502 
i.  122 

i.  331, 340,  fio:;,  Uli 

i.  380,  (ilO 

i.  435 

i.  3.31,  .3.30,340, 

300,  003,  013 

?'.  Wiiilerbothaniand  Goddard   i.  5!i8 

Swire  I'.  Francis         i.  338, 330,  340,  300, 

600,  017 

Switzcrv.  Valentine  i.  160,210 

Syers  v.  .lonas  i.  500 

r.  Syers  i.  482,  4'.irj 

Sykes  v.  Dixon  ii.  513,  614,  OOO 

f.  Giles  i.  603;ii.  40 

V.  (Jylas  i.  4t^t) 

V.  Ilalstead  i.  10.') 

r.  I.nffery  i.  4:18 

V.  Mayor  of  Columbus  i.  410 

Sykes's  Trusts,  Jie  i.  2(i.') 

Symesr.  Green  i.  137 

.Sj-monds  v.  Heard  i.  5.36,  0(il 

Symondson  v.  Tweed  ii.  oTU 

Symon's  Case,  Asiatic  Banking  Co., 

J II  re  i.  1-28 

Symons  r.  Parnionter  ii.  'i:;.) 

r.  Rees  i.  .'^o 

Synis  V.  Chaplin     ii.  77, 96, 102,  111,  iJti, 

156,  150,  157 

T. 


Taft  r.  Sergeant 
Tiiggard  r.  Loring 
Tainter  v.  Prendergast 


i.  130 

i.  :ii>l 

i.  610,  524,  6.!^ 

M') 

Taite's  Case  i.  ;!70 

Talty  I'.  Frcedman's  Savings  &  Trust 

Co.  i   W 

Talver  v.  West     i.  14,  21;  ii.  320.  327, 4'i.f 

Tangier,  The  Barque  i  ''•''' 

Tanner  i-.  Christian     i.  530,  541,  575,  •  ■.It' 

V.  Smart  i.  127;  ii.  273,  309 


TABLE  OP  CASES  CITED. 


Ixxvil 


i. 


Paoi 
i.  228 

i.  urn 

ii.  278 

i.  131) 

ii.  2uU 

i.  5',)4 

282.  284 

i.  428 

i.  33,  38,  42,  80.  87 

i.  33,  86,  87.  89 

i.  12 

i.  451,007 

i.  201 

i.  6 

ii.  511,  573,  580, 


Tantum  v.  Arnold 
'I'anviiLO  I'.  Luciis 
i'liplty  I'.  MartL'ins 
Tiirliuck  V.  Hisi>liam 
Tarlmnr.  Baxter 
rarraiit  c  Terry 
Tartar,  'I'lie 
Tail'  r.  H.'ll 
V.  Ilillicrt 
v.  I-i'itlicail 
1'.  Wi'liiiigs 
V.  Williainson 
TattiK'll  I'.  Fenwick 
'I'aii])  i:  Drew 
Tawiiey  v.  Crowtlicr 

504,602,028,020,051,052 

Taylor  v.  Waters  ii.  234,  240 

'iavlor,  F.r  jHtrte  i.  124,  125,  215 

"  V.  Ashton  i.  310 

1-.  lieeeii  ii.  044 

V.  Castle  i.  605 

I'.  Dudley  i.  142 

V.  Fiehls  i.  407 

V.  Great  Indian  Ry.  Co.     i.  328,  300, 

400 

f.  Henry  i.  52,  77 

i'.  Kynur  i.  100,012,  040 

V.  Liverpool   &  Great   Western 

Steam  Co. 

Me  Donald 

Midland  Uailway  Co. 
Mueller 


V. 
V. 
V. 
V. 
V. 
V. 


Patrick 
Flunier 
Pratt 

V.  lioblnson 

V.  Hoekfort 

r.  .Salmon 

V.  Skrine 

I'.  Stray 

V.  Taylor 

i\  Thompson 

V.  Wakeflel.l 

I'.  Whitehead 

r.  Y|)silanti 
Taylor,  The  Moses 
Teal  c.  Auty 

r.  Woodwortli 
Teasilale'.s  Case 
Ti'hliets  r.  Hapgood 
Teed  V.  Tc(;d 

TcK'iirapii  Co.  v.  Davenport 
Tenipany  v.  Ilakewill         i. 


11.80 
i.  401 

i.  305,  403 
ii.  434 
i.  147 

i.  403,  547 
ii.  681 
i.  025 
i.  454 

i.  450,  502 
i.  412 

i.  538,  500 
i.  438 
i.  417 
ii.  3'.t3 
i.  101 

i.  414,  417 
i.  287 

ii.  228,  22fl 

i.  140 

i.  321 

i.  105 

ii.  3iiO 

i.  403,  t)03 
lOJ,  107,  100 


Tempest  r.  Fitzf^erald  ii.  220,  330,  ;{;-il, 
330,  342,  430,  441,  447,  470,  401 

V.  Kilner  ii.  222 

Tenant  i:  Klliott  i.  643 

Tench  V.  Roberts  i.  408 

Tennant,  A'.r  jxirle  i.  480 

r.  Trenelmrd  i.  402,  502 

Tennent  v.  City  of  Glasgow  Bank    i.  337, 

340,  .341 
Tennessee  Bond  Cases,  The  i.  415 

Tennis(m  i'.  Tennison  i.  221 

Terney  v.  Doten  ii.  608 


Paoi 
i.  32 

V, 

i.  404 

i.  874 

i.  201 

i.  442 

i.  442 

i.  4l)d 

i.  20 

i.  000 

U.  028 

385 

001 

276 

400 

277 

164 

238 

238 

402 


1. 
ii. 
ii. 

i. 

i. 

i. 
ii. 

i. 

i. 


Terrao's  Case 

Terre  Haute  &  Alton  R.  R.  Co. 
ICarp 

Terry  i'.  Little 

Tevis  V.  Richardson 

Texas  c.  llardenberg 
V.  White 

Thacker  v.  Hardy 

Thatcher  r.  Dudley 

Thayer  v.  Boston 
V.  Fuller 

V.  Life  Association 
V.  Luce 
V.  Rock 
I?.  Stearns 

Theodore,  The 

Theriott  r.  Bafjloli 

Thibault  ('.  (■il)S()n 

Third  National  Bank  v.  Gucnthcr 

Thoin  I'.  Smith 

Thomas,  /i'.r  imite:  In  re  New  Zealand 

Kapanga  Gold  Mining  Co.    i.  10 
V.  Alsop  i.  185 

V.  Bishop  i.  532,  536 

V.  Boston  &  Providence  R.  R.  Co. 

ii.  107 
V.  Brown  i  125. 100;  ii.018,057,0(;0 
V.  Brownville,  &c.  R.  R.  Co.  i.  302 
V.  Cook  ii.  577 

V.  Deering    ii.  698,  OOG,  G51,  058,  (UIO 
V.  Dike  i.  120 

r.  Osborn  1.267,270,280 

V.  Railroad  Co.  i  424 

V.  Rhyniney  Railway  Co.      ii.  '.«>,  01, 

03,  04,  06 
V.  Roosa  i-  31 

V.  The  County  of  Morgan  i.  428 

V.  Thomas  ii.  582 

V.  Williams  ii.  231,  .571 

Thoniasson  r.  Brown  i.  400 

Thompson's  Appeal  i.  450 

Tliompson's  Case  i.  140,  355,  .'i04 

Thompson  v.  Alger    ii.  280,  290,  201,  203, 

205,  502 

I?.  Bennett  i.  215 

V.  Davenport         i.  510,  519,  524,  527. 

548,  540,  501,  563,  600,  607,  080 

«;.  Da  vies  i.  505 


V.  Dorsey 

i.  113 

V.  Fargo 

i.  032 

V.  Finch 

i.  017 

1'.  First  National  Bank  of  Toledo 

1.490 

V.  Gardiner 

ii.  070 

V.  Giles 

i.  408,  547 

V  Hamilton 

i.  122,  527 

r.  Havelock 

i,  008 

V.  Lay 

i.  118,  130 

V.  Liach 

i.  118,  146 

«'.  Lee 

i.  550 

I'.  Maceroni 

ii. 

218, 

334.  438,  445 

V.  McDonald 

i.  07,  71.72 

V.  Parct 

i.  97 

I'.  Patrick 

i.  106 

V.  Perkins 

i.  460 

I 


F 


•  I 


m 


t' 


,l\-       \  I    t< 


11. 


Ixxviii 


TABLE  or  CASES  CITED. 


Vkan 

Tliompgon  c.  Pcrrinc  1.  388.  A-J» 

V.  Snow  i.  ii!»l,  4t)8 

V.  Tliompgon      i.  43,  85,  80,  IbO,  211, 

&4.1 
Thomson  v.  Dominy  ii.  r>7,  02 

V.  Lee  County       i.  388,  414,  418,  420 


Co. 


i.  401 
i.  4»2 
i.  301 

i.  »r) 

i.  26i» 

i.  241 

i.  l;i7 

i.  G'Vi 

i.  503 

i.  308 

ii.  312 

ii.  62r),  032 

i.  118,  127 

i.  601 

i.  238 

ii.  269,  275 

i.  405 

i.  73 

i.  259,  273,  405 

ii.  57 


1. 


Thorin^ton  v.  Smith 
Tliorndilce  v.  DeWolf 
Tliorne  v.  Traveller's  Ins 
Tliornell  v.  Hnll)irnie 
Tliorniey  c.  IU-l)son 
Tliornton  r.  Guice 

V.  Howe 
Thorogood  v  Robinson 
Thorold  r.  Sniitit 
Tliorougliood's  Case 
Tliorjie  I'.  Tliorpe 
Thresli  v.  Halce 
Tlirupp  V.  Fielder 
Tibbits  V.  George 
Tienieyer  r.  Turnquist 
Tiltbrd  I'.  Roberts 
Tillinghast  i'.  Cliamplin 

V.  Wheaton 
Tilton,  The  ochooner 
Tindail  v.  Taylor 
Tinkler  v.  Cox 
Tippets  r.  Ileane 

c.  Walker 
Tisdale  v.  Harris 
Titus  V.  Great  Western  Turnpike 

i:  Kyle 
Titus,  The  C.  M. 
Tobey  r.  Harber 

t;.  Robinson 
Tobin  r.  The  (jueen 
Tod  V.  Stokes 
Todd  c.  Kmly 

I'.  liCe 

V.  Reid  i.  578,  686 

Toledo,  &c.  Railway  Co.  i;.  Merriman 

ii.  178 
Tolson  V.  Garner  i.  130 

Tome  V.  Tarkersburg  Branch  R.  R. 

Co.  i.  003;ii.  62 

Tomkins  r.  Jaffery  i  586 

r.  Tomkins  i.  113,  115 

Tomkinson  r.  Staight        ii.  388,  380,  401 
Tomkyns  v.  Ladbroke  i.  128 

Tomlinson  v.  Ex  parte  i.  145 

I'.  Branch  i.  434.  440 

r.  Gill  ii.  574,  575 

V.  Matthews  i.  235 

Tompkins  I'.  Tompkins  i.  117 

V.  Wheeler  i.  404 

Toms  w.  Cuming  ii.  501 

Tooley  V.  Dibble  i.  ".M 

Tooth's  Case  i.  3f.7 

Torrington  v.  Lowe  i.  322,  34(i 

Torrs  r.  (timing  i.  600 

Totterdell   r.  Fareham  Brick  &  Tile 

Co.  i.  003 

Touteng  v.  Hubbard  i.  IwU 

Towers  r.  Barrett  i.  21 

V.  Osborne  U.  217,  230 


i.  150 
ii.  308 
i.  001 
ii.  286 
i.  (lOS 
i.  524 
i.  200 
ii.  278 
300 
274 
158 
480 
i.  240 


Paoii 
Towlc  V.  Dresser  i.  \\\->, 

Town  of  Coloma  v.  Eaves      i.  407,  421 
427,432,433,434,440,441 
Town  of  Eagle  c.  Kohn  i.  ywi 

Town  of  East  Lincoln  v.  Davenport 

i.  440 
Town  of  Genoa  v.  RoodrufF  i.  3n,'t 

Town  of  South  Ottawa  r.  I'erkins     I.  440 
Town  of  Venice  v.  Murdock  i.  407 

Town  of  Weyanwega  v.  Ayling        i.  4;;2 
Towiiley  v.  Crump  ii.  4hS 

Towns'  Drainage  &  Sewage  Utiliza- 
tion Co.,  In  re  i.  370 
Townsend,  Kx  parte  i.  27 

t*.  Hurnham  i.  115,  llij 

V.  Ilargraves        ii.  285,  286,  434,  405, 

400,  504 

t».  Stangroom  ii.  6;iO 

Township  of  Rock  Creek  v.  Strong  i.  408, 

435 
Tozer  v.  Saturlee  i.  148 

Traccy,  In  re  i.  148 

Tradesmen's  Bank  v.  Astor  ii.  40,  41 

Traill  v.  Smith's  Trustees         1.  338,  .itl) 
Train  v.  Gold  ii.  557 

Trappes  v.  Harter  ii.  247 

Trask  i-.  Roberts  i.  524 

Travcr  v.  Merrick  County  i.  417 

Treat  v.  Peck  i.  146 

Trebilcock  v.  Wilson  i.  5 

Tredwin  v.  Bourne  i.  506 

Tregelles  v.  Sewell 
Trevillian  v.  Tine 
Trevino  v.  Trevino 
Trevor  v.  Whitworth 
Tripp  I'.  Armitage 

t;.  Bishop 

r.  Swanzev  Paper  Co. 
Trish  V.  Newell 
Tronsoh  v.  Dent 
Trotter  t'.  Walker 
Troubadour,  The 
Troiighton  v.  Hill 
Troup's  Case 
Trow  V.  Shannon 
Trowell  v.  Carrawny 
Troxell  v.  Stockberger 
Troyncross  i*.  Grant 
Trueman  v.  Loder       i. 


Trull  V.  Trull 
Trumbo  v.  Cartright 
Trust  Co.  V.  Sedgwick 
Trustees  v.  Insurance  Co. 

I'.  People 
Trustees  of  Ithaca  Baptist 

V.  Bigelow 
Trustees  of  Vernon  i* 
Tucker  r.  Andrews 

V.  Humphrey 

V.  Moreland 

V.  Sanger 

r.  Woods 
Tucker  Manuf.  Co.  r. 
Tuckerman  v.  Brown 


ii.  420,  402 

i.  626 

i.200 

i.  821 

ii.  252,  257 

ii.  514 

i.  6U9 

1.  1.S8 

i.  272,274,  277 

ii.  5tll 

i.  267,  2H1 

i.  20(1 

i.  304 

i.  88 

i.  67 

i.  226 

i.  :n;8 

530,  560,  670,  5!fJ, 

042,  050;  ii.  618 

i.  .1(10 

ii.  816,614 

i.  -JOH 

i.m 
i.  i-ii 
Church 

ii.  .'542 

i.  4(i;i 

i  201 

i.  ri45 

i.  113,  118,  i;!l 

i  r.'8 

ii  (M 

Fairbanks       i  601 

i.  402 


Hall 


TABLE  OF   CASES   CITED. 


Ixxtx 


1118 


Paoi 

1.  1H2 
.  407,  4'21, 
I,  440,  441 

i.  a«!» 

nport 
i.  440 

i.  ;«•■) 

i.  440 

i.  407 
y        i.  4:!-2 
ii.  4H8 
Itilizn- 

i.  870 

i.27 

i.  llf),  116 

,0,  4;$4,  4'.»5. 

400,  504 

ii.  (WO 

rong  i.  408, 

4:'.') 

I.  14H 

i.  148 
ii.  40,  41 
i.  3;w.  :mi) 
ii.  .'if)7 
ii.  -247 
i.  524 
i.  417 
i.  14t'. 
i.  5 
i.  50(1 
ii.  420,  4',iJ 
i.  tV26 
1  i.  '2(H» 

i.  3-.il 
ii.  252,  'J.'.7 
ii.  514 
i.  5',t!( 
i.  1:18 
272,274,277 
ii.  51tl 
i.  267,  284 
i.  2*16 
i.  -.'M 
i.  X8 
i.67 
i    22fi 
i.  :if,8 
r,60,  670,  5'.)2, 
J,050;ii-t5>» 
i.  Wo 
ii.  310,  (lU 
i.  -M 
i.  5i)0 
i.  42» 
Church 

ii.  542 
i.  4(« 
i  201 
i.  545 

i.  ViH 
ii.t)03 

Inks        >•  "''^ 
^"^         i.  402 


I. 


Tufnell  I'.  Constable 
J'liftg  r.  Chiiitnmn 

I',  riyiiiouth  Gold  Mining  Co 

V.  Tufts 
Tiiller  V.  Vovt 
'I'lilk'tt  I'.  Armstrong 
Tiiniio  r.  .Shi])  .Mary 
Tiippur  I".  Cailwell 
Turcot,  The 
Tiirlcy  I'.  Hjitc'9 
Turiilmll  I".  Foreman  . 

r.  (iiinU'ii 

V.  I'lijson 

r.  Tlu'  Kntorpriso 
TuriRT  r.  Bis.sc'll  1. 

V.  BiirrowB 

V.  Cameron 

I'.  F.Jtabrook 

V.  Harvey 

V.  Liverpool  Dock  Trustees 

I'.  Mellier 

V.  Nye 

V.  I'ooria.&c.  R.  11.  Co. 

V.  Hook.s 

V.  Tlioinas 

V.  Trisl)y 

V.  Yatesi 
Turney  r.  Dodwell 
Turiii)ikc  Koad  I'o.  i'.  Van  Ncjs 
Tuniiiaiicl  r.  Marshall 
Tiiskor,  The 
Tutt  >:  Mo 
TwolmI's  Case 
Tweedy,  AV  parte 
Twin  Lick  Oil  Co.  v.  Marbury 

2'.t7,  208,  302,  303,  304,  305,  300,  .'lOH 
Two  Ellens,  The  i.  284,  2W) 

Twyreross  1:  Grant  i.  GIS 

Tye  !•.  Finnioro  ii.  425 

Tvers  v.  Tlie  lio.xcdalc,  &c.  Iron  Co. 

ii.  030,  038,  039,  040,  041,  642 
Tyler  >•.  Arnold  i.  115 

r.  I-ake  i.  208 

Tyrrell  v.  Bank  of  London        i.  312,  342 
Tvsiin'a  Appeal  i.  208 

Tyson  i-.  Pollock  ii.  278 


U. 


Paob 
!.  144 

i.  577 

ii.  0()2 

ii.  5;17 

ii.  40 

i.  202 

i.  207 

i.  110 

i.  270 

ii.  478 

i.  215 

i.  008 

379,  402 

i.  207 

408,  46'J,  5(tl 

i.  528 

ii.  210 

I.  77 

i.  452,  455 

i.  546 

i.  00 

i.  151 

i.  380 

i.  101,  104 

i.  538,  .-..•(0 


111 
i.  0.)4 
ii.  27H 
i.  402 
i.  317 
ii.  51) 
i.  405 
i.  585 
ii.  24() 
i.  205, 


Udell  I'.  Atherton 
rill  r.  Harvey 
L'llman  r.  Barnard 
UiiiliTliill  V,  Jaekson 
UmliTwood  I'.  Ilithcox 

l:  Lovelace 

r.  Nichols 

i\  Kobertson 

V.  Stevens 
Union  Bank  v.  Coster's  Exrs. 


Union  Taciflc  R.  R.  1 


i.  000 

i.  500 

ii.  435,  500 

i.  148 

ii.  57:5 

i.  241 

i.  578 

i.  277.  21.2 

i.  017 

ii.  573, 010, 

618,  023 

Commissioners 

i.  417 

Union  Trust  Co.  1;.  Illinois  Midland 
Co.  i.  420 


Pam 

Union  Trust  Co.  v.  Souther  1.  420 

United  Ports  Insurance  Co.,  In    vf ; 

Perrett's  Case  i.  370,  371 

United  States  v.  Arredondo  i.  500 

r.  City  Bank  of  ( 'oluinbus  i.  004 

r.  County  of  Clark       i.  435,  43(),  437 
I'.  Coin  -y  of  Macon  i.  410,  425 

w.  Ciittiiit;  ,  i.  0l>2 

V.  l)oil|.'e  County  i.  417 

I'.  Fisk  i.  436 

V.  Kirkpatrick  •.  585 

V.  Kiio.x  i.  304 

V.  New  Orleans  i.  410,  426 

V.  New  Orleans  Railroad  i.  375 

V.  Nicholl  i.  685 

I'.  Tracy  i.  623 

V.  Tynen  i.  423 

V.  Vanzandt  i.  685 

V.  Villalon);a  i.  640 

Uniteil  States,  The,  v.  United  States 

Bank  i.  380 

United  States  Bank  v.  Binney  i.  48<1 

('.  Dunn  i.  004 

r.  Lee  i.310 

United  States  Express  Co.  v.  Haines 

ii.  180,  18.5,  187 
United   States    Reflector   Co.,   The, 

r.  Hushton  ii.  494 

United  States,  The.  U.  S.  Co.  r  The 

Atlantic  &  (J.  W.  U.  Ii.  Co.  1.208 

United,  The,  Insurance  Co.  «;.  Scott 

i.  265 
Unity  Bank  i\  Kinp;  i.  594 

Unity,  The,  Joint  Stock,  &c.  Assoc. 

Ej-  pnite  i.  1.34 

Upston  e.  Clark     ii.  70,  102,  IO7, 111,1 10, 

120,  130,  155,  156 

Upton  f.  Greenleos  i.  368 

V.  Ilainborn  i.  401 

r.  Ilansbrou);!!  i.  402 

V.  Tribilcock   i.  391,  394, 401. 402,  428 

Urmston  i-.  Newcnnien  i.  112,  121 

Utica,  &c.  U.  U.  Co.  c.  Brinekerhoff 

ii.  514 
Utley  V.  The  Clark-Gardner  Mininj; 
Co  i.  301 


V. 


Vail  V.  Strong 
Vale  c.  Bale 
Vallance,  Kr  parte 
Vallett  V.  Parker 
Vananken,  In  re 
Vancasteel  r.  Booker 
Vance  v.  Wells 
Vandenburgh  t-.  Hull 

V.  Spooner 
Vandereook  r.  Gero 
Vande water  V.  Mills 
Vandyek  i;.  Hewitt 
Vantassel  v.  Hatheway 
Vanzant  v.  Daddel 
Van  Bramer  v.  Cooper 


i.  24 

ii.  326,  440,  481,482 
ii.  221 


i.  397 
i.  146 
i.  638 
i.  241 
i.  408 

.621,  60ft 
i.  233 

ii.  61,  56 

i.  543 

ii  502 

i.  428 

110,  128 


i 


i-f! 


Isxx 


TABLE   OP  CASES  CITED. 


Van  Diizcr  r.  Ilnwo 
Van  Kmm  i:  Van  Di-uieti 

V.  \  un  Kpp« 
Van  llncik  I'.  Whitlock 
Van  Horn  r.  Fcmila 
Van  I'oHtrop 


Paoi 

I.  307 
i.  201 
1.  •!«.■) 
I.  ;]1»2 
I.  4(l.> 
Mailuon  City   i.  407,4-j;i. 

Van  Nt '« I',  'iicanl  li.  a4H 

Van  OriiiTiin  c.  Dorrick  i.  "JDU 

Van  Siititvoord  r.  St.  John       ii.  110,  IIH, 
Il'.t.  12().  l'2i.  i;!0,  l:i2,  1^4,  13tJ,  14;i 
Van  StraiilH'n/.i.'f  v.  Murk  ii.  M',i 

Van  Vaiki'iihurg  v.  Watson      i.  ll-'i,  114, 

115,  iin 
Vasoo  V.  Smith  i.  Kil! 

VaHtii'iilmrjfh  i:  HoiTnian  ii.  "278 

Vaugliai)  r.  Vandorstcgt-n    i.  lo4,  202,  2(i:l 
i;.  WalkiT  i.  2(15 

V.  Watt  i.  55-_' 

Vauxhaii  Hridgc  Co  ,  Ex  parte         ii.  2i2 
Vt-al  /•.  V.al  i.  w; 

Veazier.  Williunis  i.  207,  505 

Vunt'zutla  Ky.  Co.  r.  IuhcIi     i.  815,  lilti, 
825,  320,  y27,  33;{,  ;ui 
Venning  v.  Hunter  i.  KlU 

Vent  r.  Osgood  i.  12t) 

Ventri'ss  r.  Smith  i.  401 

Vere  «'.  Anliby  i.  02;-t 

I'.  Lewi.s  ii.  5ii5 

Verianilir  v.  Codd  ii.  044,  051 

Vermoiil  Central  U.R.Co.  v.  Clayes  I.  207 
Verner  i:  Verner 
Vernon  v.  Oliver 
Verplank  v.  Mercantile  Ins.  Co, 
Very  v.  Lew 


1. 


I".  Wutkiiis 
Vianna  r.  liarelay 
Vibliard  i:  Johnson 
Vibilia,  The 
Vice  I'.  Lady  Anson 
Viekers  i'.  Hertz 
Vietor  r.  Strooek 
Vigersi  r.  I'ike 
Vincent  i).  (lermond 
V'.Utti'.  I'atton 


2(M) 

i.  .'J5H 

i.  2',)8 

27,  2!) 

i.  27 

i.  5!t;{ 

i.  f.50 

i.  255,  205,  270 

i.  M\ 

i.  046,  047,  <i»H 

ii.  501,602,504 

2'.i5,  JJOf),  .•n7,;}4:} 

ii.  2H7,  2H0,  !!0;{ 

i.  015;  ii.  537,5(17 


Virgin  V.  Gaither    i.  34.  35,  44,  4.-),  48.  40, 
50,  51,  50,  03.  f.4,  CO,  71 


i. 


Virgin,  The 

Visi'ount  Torrington  v.  Lowe 

Vi.xen,  The 

Vogel  r.  r^eiehner 

Von  Kirk  v.  Skillnian 

Von  Platen  r.  Krnegor 

Voorhees  r.  Uonestall 

I'.  Karl 

V.  Jones 

r.  The  Hank  of  the  United  States  i.  4f,l 
Vose  V.  Grant  i.  400 


70,  280,  282 
i.  34(i 

i.  o;;;! 

234,  2.!7 
i.  151 
i.  243 


1. 

468, 


227 
407 
402 


w. 

Waddell  v.  Blockey 
Waddington  v.  Bristow 


i.  618 

il  224,  22ft,  227, 

231,  236 


Waddsworth  »•.  Wendell 
Wade  r.  Dowling 

V.  I'eltilione 
Wad* worth  v.  Aluott 

V.  Sluirpsteen 

V.  Sherman 

I'.  Sii|i('rvii«ors 

V.  The  I'aeirte  Ins.  Co 
WagniT  r.  Nagel 
WagstalT  r.  Anderson 
Wahl  r.  Holt 
Wain  r.  Warlters 
541.  543,  514,  545 


Paq* 

i.  422 

i.  370 

i.  4t-,5 

i  20 

i.  138 

I.  138,  148 

i.  410,  412 

i.  528 

1.   150 

1.  274,  275 

ii.  214 

ii.  500-527,  534-530, 

i48.  540,  553,  554. 


655,  601.  511.1,  507,  5ti8,  500,  510,  571 
572,  57.".,  575,  670,  67l>,  681,  58.! 


Wainnian  i\  Kyimuin 
Wainwright  r.  I'rawford 

r.  Straw 
Wait  «.  Baker        1.108; 
Waithnian  v.  Wakefleld 


Wake  V.  Ilarrop 

r.  Wake 
Waland  v.  I'.lkins 
Walcott  c.  Keith 
Waiden  c.  MeConib 
Waldo  V.  Helclier 
Wahlron  v.  Waidron 
Walford  r.  The  1  )uehess  of  I'ienne    i.  iOO 
Walker  r.  Barilett  i.  346,352 


ii.  3()H 

1.200,201,  2(;5 

i.  12 

ii.  385.  420,  402 

i.  161,  163,  158. 

lt;2 

ii.  27 

i.  128 

ii.  01 

i.  628 

I.  2!» 

i  27 

i.  180 


i. 


i.  2'.» 

i.  386 

821,  520 

133,  134 

i.  131 

i.  481 

L2:m 

183, 1H8 
ii.  5><1 


V.  Birch 
r.  Hiitz 
I'.  ('on.>-tal)le 
!•.  Davis 
V.  Kihs 
V.  Ilirseh 

V.  .IcKSlip 

r.  Laighton 
V.  McDonald 
V.  Nussey  ii.  271,  275,  280,  306.  307. 
315.  308,  404 
V.  Bcamey  i.  160,  210,  220 

I',  lioxton  i.  <)■")() 

r.  Simp.xon  i.  107 

I'.  Smallwood  i.  3s2 

V.  Symonils  i.  454,  400,  017 

I'.  Tavlor  i.  40.j 

V.  Walker  i.  2J'. 

Wall's  Ca.se  i.  M-> 

Wall  r.  Cockerell  i.  5t.o 

r.  Coimtv  of  Monroe  i.  3f<!' 

Wallace  r.  Biddick  i.  Hm 

e.  Breeds  ii.  250,  478 

V.  Kills  i.  IM 

r.  FInlierg 
V.  Loom  is 
V.  Morss 
r.  Patterson 

Wallace's  Lessee  v.  Servis 

Waller  v.  The  Bank  of  Kentucky 

Walling's  Case 

Walling  V.  Toll 

Wallis's  Case,  fn  re  Peruvian  Rail- 
way Co.  i.  365.  350.  nii.'-, 

Walmsley  v.  Milne  ii.  247,  248 


i.  221 
i.  420 

i.  i;!4 

i.  V.'l 

1. 1-.-: 
i.  '.\i\ 

i.  117 
122 


TABLE  OF  CASES  CITED. 


Pa« 

I.  4J2 

i.  ;j7«; 

I.  4i)o 
I  'Jti 

I.  l;irt 
I.  i:w,  14H 
i.  410,  412 

i.  r)i!M 

i.  l.V.t 

I.  274,  2--, 

ii.  214 

7,  niu-wiit, 
.-.r.;i,  fiM, 
r»i(»,  &71, 

»,  Ml,  f.H;t 
ii.  :;(iH 

,0,2ti  1,211.") 
i.  12 
n,  420,  4112 
1,  Ibii,  U)«. 
1(12 
ii.  27 
I.  12H 
ii.  •.)! 
i.  62« 
I.  2'.l 
i  27 
i.  \m 
nnc    i.KHJ 
i.  346,  ao2 
i.  2'.» 
i.  liba 
H.  821,  520 
L  133,  liU 
i.  i:n 
i.  4H1 
i.  2;!4 
i.  183,  IMi 
ii.  r)M 
0,  305,  3(17, 
15,  'M^,  4!t4 
50,  210,  220 
i.  <').')(•) 
i.  11»7 
i.  :!v2 
■A,  400,  017 
i.  4(1.) 
i.  2J.'. 
i.  :'.•■-•-' 
i.  fi'.o 
i.  ;w» 

i.  Km 
ii.  250,  4:h 
i.  IM 
i.  221 
i.  420 

i.  i;u 

i,  4'.iT 

i.  yi'i 
:;2i 
11" 

122 


cky     i 


1 
I   Rnil- 

ii.  247,  24« 


Wnlrath  '•  Inglci 

!•.  Kicliii' 

I'.  'riii)inp«on 
VViilwli'd  Aiipial 
WiiMi.'  /■.  I'rovnn 
WaUi.il)  r.  S|MittinwooJe 
Wttitci'..  HrcwiT 

C.    DdlllJSOtl 

V.  Kurd 


Paoi 

ii.  2115 

ii.  a(l7 

ii,  (>2.'t 

1.  4:i.  W7 

ii.  11 

i.  12'. 

i,  2'.)0;  ii.  4H 

ii.  570,  00'.) 

i.  M5,  HH 


i.  31,  37,  42, 43,  64,  SO,  h7. 
2l:{ 

...  Wiiit.T  i.  .i'.tJ 

Wiin/iT  '•.  Trdly  i.  ('••'•O 

War  Is  Cum-  i.337,  :t(U 

VViir.l,  I'.r  ,u„iit  i,  or 

I'.  .\ii<ila(i>l  i.  3.'i 

V.  IliTk^hirc  Life  Iiig.  Co.  i.  2;l» 

)..  D.ivi.jsiin  i.  :!IH> 

f.  (Iririi  i.  205,  2!H) 

V.  (iristvoidvilit..  Maiiuf.  Co.        i.  3'.)2 

V.  l-'cltoii  i.  035 

I,'.  Miiinif.  Co.  i.  402 

V  !'.•(  k  i.  270 
V.  I '..Ik  i.  2'.»H 
V.  .Society  of  Attorneys              i.  .'loo 

V  Soutd  Kiidtcrii  Hv.  Co.  i.  32^ 
V.  ■rurnip         i.  •i\,  41,47,50,  «(5,  h7 

V.  \':iiiri.  i.   \:\\ 

Wurilcll  '•.  Kiiilroail  rompany  i.  2'.t5 

V.  I'll..  Union  I'acilic  K.  U.  Co.  1.  302 

Wanifi)  i\  (JruiT  ii.  50 

Wart'  I-,  (jalvcston  City  Company    i.  505 

WardcM  (..  Uavisii's  i.  230 

Wuriiitr /•.  ("ox  ii.  02,  (13,  71 

c.  Dcwhcrr}'  i,  (121 

V.  l-'av(iii'k  i.  5(12 

V.  \Varin;i  i.  1,30,  1.37,  144,  145 

Warnifoid  '■.  Wariicford  ii.  ."iH5 

WuniiT  r.  .Martin  i.  050 

I'.  McKiiv  i.  520,  5'.»7 

V.  Willington      ii.  51.5,  50.'?,  .')<,»7,  .V.W, 

5'.tl),  000,  000,  008,  (152 

Waniliolij  /•.  S(.lilitini» 

Warri'M  c  Krci.nian 

V.  Hii'lianlsoii 

V.  Slio(»k 

'••  Stajjt^ 

Warrimr  r.  KojrLTS 

WarriMLitoii  /■.  Fiirbor 

Warwick  r.  IJriici' 

Wartin.imi  r.  Ilri't'd 

\Va«lil>oiirn  r.  liiirrows 

Wasliliiirn  c.  Franklin  i.  433 

\VashMij,'ion  Ici'  Co.  v.  Webster      ii.  500, 

658,  5.5' I,  .502 
Wa^liiiiijlon  Irving,  The  Steanibon'  i.  208 
Watii;:!,  The  i   2H'.» 

vS  alert' 111  ...  IVnistono       ii.  245,  24(1.  247 
Uaierliouse  t\  Jniuieson    i.  336,  330,  .337, 

Waterman  ...  Vose  i.  4fM) 

Waters  -•.  Mrou'den  i.  486;  ii.  40 

'••  .Monarcli  Insurance  Co.  i.  057 

^Vate8e.  Clifton  i.  47 

Watklns, /:.',r/wrt  i.  641 

VOL.   I.  i 


I.  .> 

i.  247 

i.  322 

i.  (J(»2 

ii.  025,  032 

i.  33 

ii.  520 

i.  124  ;  ii.  2.-.7 

ii.  405 

ii   237 


Watkini  >•.  Dainl 
r.  I>e  Armond 

I'.  Hollies 

(..  .Mu.^on 

V.  Overneers 
WatkiiiHon  V.  lni;li'Hl>y 
Watkyns  r   Watkyiis 
Watson,  h'.r  jKiitf 

r.  Karl  ('liarlt'inont 

V.  ilawkiii!) 

V.  Murrell 

t'.  Haiiilail 

V.  Sprat  ley 

r.  Swann 

I'. 


Ixxxi 

i.  405 

i.  105 

ii.  014 

i.  241,  212 

ii.  240 

i.  21) 

i.  UHJ 

i.  134,  408 

i.  126 

i.  .103 

i.  641 

ii.  023 

ii.  222 

621>,  024 


Tlio  AmliiTgafo  Railway  ('o.  ii.  7'J, 

120,  145,  157 

Watson'n  Ex'ors  v.  McLaren  ii.  017 

Watt  r.  (irove  i.  454 

Watts  r.  Friend  ii.  2;)0 

I'.  Ila'lxwill  i.  l:)i) 

V.  Steile  I.  1 17 

Wau({li  I'.  Hridgcford  i.  2.32 

I'.  Carver       i.  407,  472,  473,  474,  478 

I'.  Cope  ii.  30!) 

Way  r.  \htx  i.  14 

...  Wak.fleld  i.  12,  14,  IH,  21 

Waydell  r.  Luer  ii.  278 

Wavnec.  Steamboat  General  I'iko  i.  500 

We.'ilec.  Ollive  i.  51 

W.aver  r.  Harden  i.  40.3 

Wel.l.  r.  Brooke  i.  543 

r.  I'eiree  i.  202,207,201;  ii.  60 

r.  iIa.selton  i.  240 

('.  I'liiminer  i.  (ViO 

Wel.l),  The  Sir  Henry  ii.  11 

Webber  /•.  Leo  ii.  240 

V.  Tlie  Great  Western  Railway 


Co. 

ii.  83.  200 

Webster's  Ca.se 

i.  3.30 

Webster  ('.  I'\inmni 

1.  :>2« 

r.  Ilarwint(.n 

i.  4(«) 

r.  Ilildreth 

i.  227 

i:  Laws 

i.  244 

i:  Leeliamp 

i.  2!il 

V.  Seekaui 

i.  201) 

r.  S[ieneer 

i.  4.11 

V.  ITptc.n 

i 

393, 

402,  428 

V.  Woodward 

i.  140 

1'.  Zielly 

ii.  205 

Weed  .'.  The  Saratofr.a  R.  R 

.  Co. 

ii.  no. 

118,    120,    121,    122,    1 

23, 

132. 

131,  140. 

Il3 

147. 

151,  153 

Weed  Sewing  Machine 

Co. 

i;.  W 

ieks 
i.  523 

\Veede  r.  Recile 

i.  123 

Weeklev  r    Weekley 

ii.  222 

Weeks  .'..  Fills 

i.  425 

!'.  Lei),'hton 

i.  120 

V.  Merrow 

i.  113 

Weidner  r.  Ilofrpptt 

i.  575 

Weightman  c.  Caldwell 

ii. 

513, 

514,  573 

r.  Clark 

1.  428 

Weil  I'.  Sinuiions 

i. 

1.50,220 

V,    The    Merchants 

Dcspi 

Ueh 

Trans.  Co. 

ii.  1.30 

M 

t'-VM 

•■■.itl 

.:  K\ 

'h 


n 


m  ■ 


\'\\ 


!'  I 
I';' 


t 

( 

r 
1 

\ 

I 

i 

' 

Ixxxii 


TABLE  OP  CASES  CITED. 


^Aa» 

Paoi 

Weir  V.  Rarnctt 

i. 

340,011 

Whoeier  v.  San  Francisco  &  Ala.  R. 

V.  Hell                    i. 

S38. 

330. 

340,  013 

K.  Co. 

ii.  214 

1'  lliulnut 

ii. 

20'J,  275 

Wheeler    &  Wilson   Manuf.   Co.   t,'. 

Weiginer  c.  Douglas 

i.  41t) 

Heil 

i.  08 

VVelcli  c.  Welch 

i 

218,  21'J 

Wheelock  v.  Kost 

i. 

390.  403 

Weill  r.  (^iiiiie 

ii.  54)4 

f.  Mouiton 

i.  377 

I'.  Maxwell 

i.  2y3 

V/heelwright  v.  Depeyster 

i.  450 

Weltlin  V.  I'orter 

ii.  581 

V.  Moore 

ii.  54K 

Welilon  ('.  Wiiislow 

i.  215 

r.  Wheelwright 

i.  84,  «iO 

Welles  I'.  Middleton 

i.  452 

WhelpdUe  i'.  Cookson 

i. 

450,  464 

Wellington,  The 

ii.  50 

Whichcote  v.  Lawrence     i. 

454, 

458,  450, 

Wells  r.  Abertietliy 

i.  14 

404 

(.'.  KinKstoii-u{ion-IIuIl 

ii.  240 

Whilbread  r.  Jordan 

i.  450 

V.  Smith 

i. 

228,  5S(1 

Whilden  i:  Merchants',  &c. 

Bank       i.  24 

I!.  Supervisors 

i. 

400,  420 

Whipple  r.  I'arker 

ii.  5-18 

V.  Thonins            ii. 

130. 

158, 

150,  100 

i:  Swett 

i.  31 

V.  Tucker                i 

.  3«, 

43,  8(i,  »8,  ;«: 

Whippy  r.  Hilary 

ii.  501 

V.  Wells 

i.  104 

V.  Hillary 

i.  130 

Wimlell's  Case 

i.  145 

Whistler  v.  Webster 

i.  IL'H 

Weiiilill  r.  Van  Itonssnllacr 

i.  504 

Whitaker  v.  Simmer 

i.  1(15 

WeniloNer  r.  Ilojfebooni 

i.  2!K) 

Whilbread  r.  Brockliurst 

ii.  5Wt 

Wennall  r.  Ailney 

i.  110 

Whitcomb  . .  Miiichin 

i.  454 

Weutwoith  i:  lAoyd 

i. 

295. 

300,  450 

t'.  Whitcomb 

i.  2(M) 

c.  Onthwaite 

ii. 

454,  45K 

White,  /v.r  fitiile ;  In  re  Nov 

ille 

i.  5S3 

V.  Tubl» 

i 

142,  143 

V.  Heeton 

ii.  52:; 

Wert/,  v.  MiTritt 

i.  87 

V.  Branch 

i.  123 

West  r.  lJe.ich 

i.  14 

V.  Cox 

i.  147 

V.  Insuranc;^  Co. 

i.  4W) 

r.  Dr.'W 

ii.  27ti 

c.  Mt'ore 

i.  134 

V.  Flora 

i.  i;ii 

V.  Skip 

i.  407 

V.  Franklin  Bank 

i.  424 

West  .;!'  'Mijjlnnd  and 

South  Wales 

V.  (iarden                       i 

330, 

640,  550 

District  Hank,  /»  jv 

i 

444,  445 

V.  llildreth 

i.  227 

West    ^'t.    l.ouis    Savings 

Bank    r. 

r.  Mann 

i.  IKI 

Shawnee  Comity  Bank 

1.002 

V.  McNett 

i.  2(i.J 

Westerclell  r.  Dale 

i.  202 

'.  Talmer 

I  47,  50 

Western  v.  Kussell     ii. 

611, 

503, 

5H0,  504, 

I'.  Procter 

ii. 

821,52'.t 

(Mr2 

ti44,  051 

V.  Skinner 

i.  001;  ii.  71 

Western   &   All.   R.   Ii 

.    Ct 

).   r. 

Mc- 

V.  \ermont  &  Mass.  R. 

R.  C 

0.    i.  ;i>2 

Klwec 

ii 

105,  100 

V.  Wilks                     i.  2 

15;  ii. 

250,  47H 

Western    Bank   of   Seotlnn 

d     V. 

Ad- 

Whitecoi'ii)  1.'.  Jacob 

i.  4^.-) 

die 

i. 

I!.'!! 

5'.i0,  013 

Whitehead  v  Anderson 

1.  C24 

;  ii.  4.-,l, 

Western  Cement  Co.  v. 

•Tones 

i.  140 

4.-)M 

Western   Maryland  11. 

It.  I 

.  Frank- 

>•.  Izod 

i.  ■■'.-.'i 

lin  Kank 

i.  00,3 

1'.  Taylor 

i.  (i-j;i 

Weston's  Case 

i. 

120,  323 

c.  Tuckett 

ii.  40 

Weston  /•.  Dowiies 

i.  1(1,  21 

Whiuhouse  r.  Frost       i.  27 

;ii. 

463,  4Tt;, 

V.  Uifxht 

i.  30,  1.3 

477 

V.  I'emiimnn 

i.  2'.K) 

Whiteside  v.  I'liited  States 

i.  5M 

Wpsfropp  >'.  Solomon 

i. 

125,  5.',8 

Whitewell  r.  Warner 

i.  2:17 

Weslzintlins,  In  rr 

i.  550 

Whiltieitl  r.  Faussct 

i.  5',i| 

Wetherbec  r.  Totter 

i.  24 

Whilini:  r.  Barrett 

i.  ('.8 

V>'haley  v.  liacnal 

ii.  530 

r.  Lake 

i.  4^7 

Wharton  r.  Mackenzie 

i. 

110,  no 

Whitman  r.  Abernatliy 

i.  2;i(' 

V.  Morris 

i.  31 

Whitmarsh  v.  Mall 

i.  r.V) 

Wheat  ley  v.  Miscal 

i   120 

Whilnev  r.  Butler 

i. 

.370,  :;hi) 

r.  Patrick 

i.  01 

r.  Dutch                         i. 

118, 

122,  i:K( 

i:  I'urr 

i.07 

V.  LuddinKton 

i.  )(W 

Vt'hentlcy's  Heirs  v.  Calhoun 

i.  505 

V.  Wyman                      i 

802, 

603,  (Idl 

Whenton  r.  Kast 

i. 

123, 

1'.7,  12'.t 

Whitten  r.  Tisdalo 

i.  2';h 

r.  (Jates 

i.  20 

Wliitiicr  r.  Dana 

ii.  (iW 

Wheeliin  r.  Wlioelan 

i.  453 

Whit  well  r.  Wyer 

ii.  2!^') 

■^V  hee!e>-  r.  Collier 

ii. 

570,  GOC,  (U'.» 

Whorwood  r.  Whorwood 

i.  1!W 

i:  McFarhmd 

ii.  2H0 

Whyte,  A'.r  /niile 

i  5<12 

V.  Itussell 

i.  ;;oi 

Wick  V.  Hodgson 

ii.  '.'•■i: 

(1.  Sage 

i.  6U& 

Wickinson  r.  Fra'ier 

i    liiH 

^"^ 


TABLE  OF  CASES  CITED. 


Ixxxiii 


Paoi       '  faH 

Paob 

Paoi 

la.  R.                ^:m 

Wieliler  v.  Weakley                          i.  140 

Williams  r.  Jordan    ii. 

607,  608,  018,  Otit), 

ii.  214            W 

Wijjgin  I'.  Free  Will  Baptist  S  )ciety  i.  20 

V.  Luke         ii.  670,  008,  010,  018,  050 

Jo.   V.                     ':m 

!      W ingi US,  AV /""■/(■                               i.  4(15 

000 

i.  08              1 

WiL'uk'Swortli  v.  Dallison                   i.  5(J0 
r.  Steers                                  1-  147,  148 

V.  Leper 

ii.  674,  675,  570 

i.  396,  403               1 

V.  Louisiana 

i.  428 

i.  »77              '''i 

Wilbur  V.  Howe                                   i.  606 

V.  Merle 

i.  040 

I  i>,i\               l| 

\Vill)y   i\  Tlie   West   Cornwall   \{y. 
(•„:                                       ii.  80,  8(1.  157 

V.  Milliiigton 

i.  671 

ii.  f>4«               j-d 

V.  Mobee 

i.  120 

i.  84,  V()               m 

Wileox  V.  Keiloj,'g                                 i.  500 

t'.  .Moor 

i.  127,  130 

i.  4r>\),  4t)4              J 

!•.  I'arnieke                  n-  121,  122,  12;{ 

V.  Nixon 

i.  017 

4,  458,  4r)(t,             1 

V.  Kc.r.tii                                        >•  i:i'> 

r.  Norris 

i.  120 

4(>4             Jj 

t;.  Toilil                                         '•  i^'>>* 

v.  North  China  Ins 

.  Co.              i.  015 

i.  46t)              1 

(•.Smith                                          >•  ■*2;,            r.  Owen 

1.  98 

nk       i.  24             ^ 

'     Wild  r  lliiiik                              i-  -W.*,  Bitu           V.  I'owiil 

i.  452 

ii.  648               ,;^^            , .  Till.  iJiink  of  rassaniaquoilily 

V.  Hobbins 

i.  573 

i.  ;!i             i 

1                                                                    i.  (')00 

V.  Robinson         ii. 

614,  554,  550,  500, 

ii.  W)l             ^ 

1     Wilde, /»  le ,•  A'.r /)ii/(f  Da^Tliali       ii.  21.'), 

601,  602,  043 

i.  i:!0         ,j| 

■                                                                        24') 

17.  .Safford 

i.  101 

i.  I'.i8        ;^ 

I           )-.  Gibson                             i.  UIO,  ()|:l 

('.  .Shannon 

i.  18 

i.  105        v^M 

■            r.  WatiTs                                     ii.  248 

V.  The   Wilmington    &    Weldon 

ii-  &»»       'M 

1     WildiT  r.  Ke.'ler                                    i-  407 

U.  R.  Co. 

ii.  Oi. 

i.  454         (^ 

1     WildiTmiiii  r.  Hdirers                             i.  22H 

V.  Wentwoi  th 

i.  130,  142,  143 

i.  2(M)         iH 

1     Wildrijr  r.  Nuwpi.rt  Street  Ry.  Co.    i.  2'.itt 

Williamson  v.  Barton 

ii  27 

J         i.  5s;^         ■  'M 

1      Wilfurd  r.  Hi'ii/ilv                             ii.  587 

V.  Birry 

i.  5,  20,  90 

ii.  52;:         J 

Wijki'.s  r.  .McCliiiif;                              i.  lit) 

f.  Dawes 

i.  200 

i.  rj:s        tjl 

Wiikius  r.  Hroiniiuad                         ii.  255 

('.  I'a^e 

i.  205 

i-  l'*<         ^ 

r.  Casey                                          ii.  272 

Willis  r.  Smyth 

i.  77 

ii.  27(1           :.Wi 

r.  Wdhh                                          )•  ''17 

r.  Twambly 

i.  120,  i;5:< 

i.  181   ':^mi 

Wilkinson's  Ciiso                         _         i.  3:!0 

Wilmot's,  Kli/a,  Case 

i.  2(M1 

i.  424         ^ 

Wilkinson  r.  Kvana                    ii.  047,  (ii'l 

Wilmot  r.  Uieliardson 

i.  027 

30,  640,  5^-.0          M 

i:  lleavenricli                        li.  514,  5.')0 

Wilson's  (^ase 

i.  128,  373 

I  227       ^  i:^! 

r.  Kiiij;                           i.  IOC),  2!t',  (il.'l 

Wilson  r.  Anderton 

i.  050 

i.  ll'l      '^ 

Wilkinson's  Adni'r  r.  Wilkinson      ii.  503 

I'.  Barker 

i.  023 

i.  2(1")           M 

Wilks  r.  Smith                                   ii.  523 

V.  Barthrop 

ii.  27 

i.  47,  .V.I        :m 

Willot'Cliapin,  //!/•«                            i.  138 

V.  Beddard 

ii.  504 

ii.  321,  iVj'i            m 

Will  of  Cole,  /,/  ,r                                      i.  1;18 

1'.  Boyee 

ii.  250 

.  (>()1;  ii.  71            M 

Williir-l  r.  Kastliain                             i.  205 

V.  Carine 

i.  407 

.Co.  i. ;:>2        w 

r.  (iornier                              ii.  269.  275 

«».  Cooper 

1.  16,  05 

ii.  25(1,  4TH          ,■ 

V.  Killinijwortli                             i.  4(»'.l 

V  Dickson 

i.  274 

i.  44.')     i  JH 

Williiun  and  Knu-line,  Tlie                 i.  270 

f.  Ford 

i.  104 

024 ;  ii.  4.-.4,     mM 

William  Carev,   I'lio                             i.  2ill 

V.  Fuller 

i.  000 

4.')H     .  i,^M 

William  K.  SalTord                                i.  280 

V.  (ilossop 

i.  180,  102 

i  ;'>'-2     '^'^'i^H 

Williams's  Case                                     i.  3!M) 

:•.  Hart 

i.  527 

i.  (i2;;    :;^ 

Williams,  K.t  imrte                              i.  500 

r.  Herbert 

i.  151,  158 

ii.  Id       «« 

In  n<                                                  i.  01) 

i".  Kearse 

i.  123,  124,  125 

ii.  463,47'',        fl 

.'.  AIlsup                                      i.  284           I'.  Millar 

i.203 

.!■ 

I'.  Ami-bach                                  i.  23<; 

I-.  Mooro 

i.  100,  4ti() 

i.  r,s4    ''S 

V.  Ila.'on                                ii.  640,  f)28 

I'.  Oldham 

i.  142 

>'  -'''  wM 

V.  U.irton                                       i.  (ili) 

V.  I'everly 

ii.  40 

i.  5'.tl    <^^l 

1'.  Hrovii                                        i.  122 

1'.  ^ilamanea 

i.  4.".l 

i.  ('.s    >}iH 

r.  Iliirnesg                                      ii.  3r)0 

I'  Si.reve|,i)rt 

i.  422 

a 

V.  Hvme.s     ii.  509,  607,  008,  009,  010. 

V.  Smith 

i.  573 

.S 

011,018 

i:   The    Roval    K.xelmnRe   Ass. 

i.  I'ji;    „■  J 

V.  Callow                                         i.  109 

Co. 

i.  200 

i.  37'.',  :'.wi        S 

V.  Carwardino                              ii.  018 

r.  The  Hoynl  Ivx.  Ins.  Co.            i.  202 

18,  122,  !;:•>        '.■ 

r.  Coward                                        i.  1.54 

r   Tronp 

i.  405 

.fl 

V.  I'Mwards                                     ii.  t',02 

r.  Tuinnian 

i.  023 

i02,  693,  <;i'l         fl 

I'.  Kvans                                           i.  ft'Xi 

1'.  Whitehead 

i.  478.  4SS,  4(»0 

i.  '.'>;h      S 

V.  KviTftt                                      i.  ().'0 

r.  Wilson 

i.  200 

ii.  (i4:l        fl 

I'.  Fowler                                       i.  KM 

V.  Ziileta 

i.  51.'),  530 

ii.  2N^      -« 

V.  (Jivon                                         i.  5  (t 

Willsheai-  r.  Cottrell 

ii.  245,  218 

i.  nw    l^ii 

r.  (Irilllths                              ii.  272.  301 

Wiltsliire  r.  M'lrshall 

i.  147 

i  TitVj       ,vM 

»'.  (iuile                           i.  38,  83,  84,  91 

r.  Sims 

i.  20 

ii.  '-''"     "^^^^B 

1'.  lla'„'()0(l                                      i.  41:! 

Wind)erley  r.  .Jones 

«.  120 

i    MH    ^H 

V.  Iiiabutt                                      i.  147 

Wing  V.  lioswald 

i.  240 

i\ 


P 


if  !'      i; 

•i    ■      i' 


\H\ 


.'ti , 


hi 


Ixxxiv 


TABLE  OF  CASES  CITED. 


Paob 

Wing  V.  The  New  York  &  Erie  R.It. 

Co.  ii.  124 

Winn  r.  Hull  ii.  605,  000,  001,  (iOJ 

t'.  C.'oliinibinn  Ins.  Co.  i.  2<'>1) 

r.  Inglfhy  ii.  2(2 

Winston  c.  WiHtfoldt  i.  'Ml,  J.^ 

Winlt-r  r.  UrockwL'll  ii.  2!U 

V.  VVailuci-  i.  ir.l 

Wiiiiiirdp  r.  Unutn  InKunince  Co.     i.  527 
VViiv     l{i)cii<-S(.'\viiig    Mucli.    Co.    v. 

Crowfll  i.  i>8 

Winhacli  c.  First  National  Bank      i.  i:i!( 
WistT  /•.  HUicliiy  i.  422 

Wislon  r.  Kwing  i.  4i*7 

Wisvvfll  V.  Siiirr  i.  .'!lt4 

Wiihurington  c.  Herring  i.  4(18 

WitliLT.s  r.  I.vKs  ii.  453,  477 

/•.  Weiiver  i.  lilJ 

Witliington  v.  Herring  ii.  ."1 

Witt  t».  Amis  i.  Wtl 

Witter  I'.  Uiilianls  i.  4117 

Wittingliain  f.  Hill  i.  II'.) 

Wittuvvsky  r.  Wasson  i.  IM 

Witzler  r.  Collins  ii.  57 

WullI    c.  (Connecticut  Mutual  Life 


) 

'  ! 
•i'i 


Ins.  C". 

I'.  Horncii.'itle 
Woiidell  r.  Railroad 
W(»()irs  Cast- 
Wood,  /ii  re 

v.  Itenson 

V.  Hroatlley 

I'.  Hiilli'iis 

V,  Donnes 

V.  Dmnnier 

V.  Farniare 

V.  Cill 

V.  Ik'wett 

I'.  Insiiranec  Co. 

V.  l.aniliirlh 

I'.  lA'adl)itter 

r.  Manley 

I'.  McCain 

('.  Midgly 

V.  I'liniell 

V.  I'riie 

V.  Howcliffo 

I'.  Scartti 

V.  Ciiitfd  Statog 
W'loillierk  r.  llavcns 
Woodlpiirn  ••.  \Vo()dl)urn 
WoiKJi'ock  r    ncnnt'lt 
W(mclfi)rd  /'.  Cliariiley 

I'.  Tatterson 

r.  Sle|>licns 
Woodgilti'  r.  Knnti'ld)ull 
WiiinllioHHe  r.  Mcredilll 
Wnodiii  r.  Hurt'ord 
Woodland.  'I'lii' 
Woodrop  r.  Wr.rd 
Woodruff  r   Hoiiiih 
WoodrulT  &   Heacli 

Stetson 
Woods  c.  Dnnlap 

I'.  McCiee 


i.  i:58 

i.  (!2:t 

i.  .'too 

i.  i:(7 

i.  14H 

ii.  571 

i.  280 

i.  5 

i.  452,  4r>4 

i.  3'Jl,  40.5,  4(Mi 

ii.  2titi 

i.  ill) 

Ii.  245,  247,  2 18 

i.  4'J'J.  500 

i.  205 

i.  050;  ii.  240 

ii.  2;!;t 

i.  024,  t)25 

ii.  508,  044 

i.  5(Mt 

ii.  181 

i.  107,  (MO 

ii.  00(1 

i  424 

i.  150,210 

i.  (15 

ii.  278 

i.  a:i 

ii.  50-2 

i.  221,225 

i.  Clio 

i.  454,  502 

i.  480 ;  ii.  27,  40 

i.  2'.M» 

i.  407 

i  :ioo 
Iron  Works  c 

i.  '2M 

1.  2:«l 

i.  27 


Paqi 
Woods  V.  KuBScll  ii.  25(i 

Woodward  v.  Dowse  i.  1»2 

Woodworth  v.  Bank  of  America       i.  400 
Worcester  v.  Katon  i.  110,  128 

'Vorcester  Turnpike  Corporation  Co 

r.  VVillard 
VVorinley  v.  Worinley 
Worsl'.y  r.  Scarborough 

r.  SV'ood 
Worth  /•.  Case 
Worthington  c.  Grimsdltch 
Worthy  v.  I'alter 
VVray  ?•.  Cox 
Wreini  c.  Kirton 
Wright  I'.  Houghton 

I'.  Campbell 

I'.  Chard 

V.  Dannali 

c.  Davidson 

V.  Dre-xser 

r.  Kiigletield 

I'.  (Jeer 

r.  Hays 


)'.  Hiighei 


i.  .^20 

i.  454 

i.  382,  384 

i.  85 

i,  84.  85 

ii.  274,  ;!()'.» 

i.  ti;i;i 

i.  1(15 
i.  502 

ii.  124,  12,, 
i.2!i 
i  202 
ii.  072 
i.  4(18 
i.  2(15 
i.  202 
i.  24 
i.  Kl.'i 
i.  4:t;i 
i.  i:tH 
i.  5f)() 

i.  133,  i;!4 

i.  h(i 

ii.  01,1)4 

i.  10!t 


■lackson 

I".  Lawes 

r.  Leonanl 

V.  McMillan 

V.  Midland  Hallway  Co 

V.  Morley 

V.  I'ercival  ii.  324,  331,  .345,  847,  348. 
450,  470,  478,  4'.il 

I'.  Snowe  i.  133,  lH.'i 

V.  Stewart  ii.  21(1 

V.  Tnckett  i   ;i44 

V.  V'anderplank  i.  05.  K! 

i:  Wakiford  ii.  585,  5',i(( 

V.  Wright  i.  205,  2(Mi 

Wright's  Ajipeal  i.  tKio 

Widsehner  r.  Sells  i.  237,  2;!',t 

Wyatt  r.  Benson  i.  20 

V.  Citv  of  (ireen  Ray  i.  4;»- 

Wyble  V.  Md'helers  i.  07,  74,  87 

Wycherley  r.  Wyilurley  i.  51 

Wyernan  i-.  (loodrich  ii.  i'i.hI 

Wyllie  r.  I'ollar  i.  (11;-, 

Wylson  r.  Dunn  ii.  0(17 

Wynian  r.  Chicago  &,  Alton  11.  U.  Co. 

ii.2U 

I'.  (Jray  ii.  581 

Wynne's  Case,  In  re  United  Ports  & 

(ieneral  Ins.  Co.  i  354 

Wynne  v.  Trice  i.  352,  ;i')4 

Wystow's  Case  ii.  211 


Xenia  Bank  t;.  Stewart 


i.  004 


Yale  I'.  Dodcror 
Yiiiiger  r.  Skiinier 
Yates  I'.  Boen 


1.205,214.  210 

i    I  :'.'.• 
138,  140,  117,  lltt 


TABLE  OP  CASES  CITED. 


Ixxxv 


Yates  I'.  Ilnll 

r.  Tym 
Yi'lliind'.i  Case 
Y.llow  Jacket  Silver 

Stovelisoii 
YdIii'  I'.  Hariu't 
York  &  Nortli  Mi'Hn 

lIllllsKIl 

Yurk  Uiiil(liii}r8'  Co.  v 

YouMK.  /•-''■  /""■'« 
t'.  A<laiii8 
r.  blaisdell 
V.  CkIl" 
V.  (initc 
v.  Kii^liley 
r.  Matiliewg 
V  Miles 
r.  Stevens 


Paob 

i.  2fi0 

ii.  J-^o 

i.  367 

Milling  Co.  v. 

i.  375 
i.  201 
Mil  Hy.  Co.  I'. 

i.  2'.t!i,  -.m .  Mi-2,  rm 

Maekenzie     i.  464 

i.  4H2 

i.  4«9 

ii.  4'.»'.t 

i.  125 

i.  .•!1»7 

i.  4'.t7 

i.  a;.  !I2 

i.  20,  27 

i.  140 


Younp  I'.  Young 
Yuba,  The 
Yule  V.  Yule 


Paob 

i.  77 

i.  203 

i.200 


Zabriski  v.  Tiie  Cleveland,  &e.  R.  R. 


Co.                                    i 

2<J7 

S'Jl,  406 

Zacliarie  v.  Nasli 

i.  586 

ZaRury  v.  Fiinu'll 

i.  20 

ZttUager  r.  Delarjjy 

i.  I!t3 

Zeijfler  r.  Daviil 

i,  101 

Ziniinernutii  r.  Krlmnl 

i  ?Ml 

Zodiai',  'i'lii- 

i 

255,  2h! 

Zoiicli  1'.  rar-nons                  i 

117 

IIH,  120 

Zuik;  i:  The  Soutli  Eastern 

Ky. 

Co.  ii.  02 

Zurn  V.  Noi'dil 

i.  247 

Zwinger  v.  Saniuda 

ii 

308,  477 

1'' 

i 

pi 

1'  i 

; 

R 

:r 

V 

1 

1 

1        ; 

P 

J    '' 

!     !. 


i'  !I1 


h'li 


Ri 


COMMENTARIES   ON   SALES. 


BOOK    I. 


PART   T. 


WHAT   IS   A   SALE? 


In  an  nlfompt  intelliirontly  to  discuss  tlio  siiltjort  of  Sales  of 

Jrcrsoiial  Pro|K'rty.  we  are  met,  at  the  vcrv  thivsliold  of  tin-  ^ub- 

[j('<'t.  with  a  (lillirulty  wliicli  rnuiires  to  br  irminrd.     Willi  refcr- 

jciHT  to  \\Ii:it  is  a  salr  of  personal  proixTfy.  the  autljoritie.s  '.voukl 

[si'oin  to  1h'  ucll-iiiiiii  irrecoiicihibh',  and  wi-  liave  not  met  with 

iny  roasoiiahle  attempt  to  reconcile  or  otlierwise  to  jthire  oji  a 

satisfactory  basis   the   contradictory  definitio)is  of  a   sale  whioli 

oarts  and  text-wrifcrs  furnish  ns ;  some  of  th"m  treating  a  sale 

IS  (iifferin'4  from,  and  others  ns  beinir  in  effeiM  the  same,  as  a  I)ar- 

for  or  exchanirc.     We  think  the  wciirht  of  reason  auil  authority  is 

Rilii  the  latter  view. 

Ill.!i  kstone  treats  them  as  in  effect  the  some.     That  able  com- 
aifutator  savs, 


ale,  or  exchamro,  is  a  tra'isniuiution  ol  projierty 


ireni 


one  man  to  another,  in  consideration  of  some  price  or  reco 


1)1- 


Itiust 


M  \al\ie 
,1 


for  tl 


lere  is  no  sale  wi 


tho.it 


li  receaupenM 


lliero 


(/Hid   j>fO    ipli 


'      if  it  l)c  a  conniiutafiou  of  i;ooi|8  f 


or 


[ootls  it  is  more  jM-operly  an  exchanire  ;  ItuI  '.{  it  be  a  traiisbrrinjr 
bf  iroMils  for  money,  it  is  called  a  sale,  wli  eh  is  a  method  of  ex- 


Ihaiu 


V    I 


ntroduced  for  the  conveni'ie       -<    mankind,  'ov  establish- 


liL'  !  universal  medium  which  may  be  e\chan<j!<l  fir  all  sorts  of 
ktlii .  pioperiy  ;  whereas,  if  -jioods  were  only  to  In-  e.\elmnired  bu* 
lt)Oils.  ii\  way  of  barter,  it  W()uld  be  dilliruji  t(»  ndjusl  the  ri.'spec- 
\\z  \:ibies.  and  the  cufrinire  \\<mld  be  intoh'ra»»lv  cumbersome. 
»viili  leiiard  to  the  law  of  sales  aiid  exchan-jes  ;)iere  is  no 
i''ii"e.  I  shall  therefore  treat  of  ihem  liotli  und'  >•  the  deuom- 
(\'s\\  of  sales  ojjIv.'"'^ 


I    V, 


t  Kll(.  toiii.,  44)J,     1  Chitty  on  Cod.,  51S,  i:j  to  the 


^01..    1. 


ll 


COMMENTARIES  ON   SALES. 


[book  I. 


i|il;i 


Kent,  the  American  Blackstonc,  takes  the  same  view.  lie 
says :  "  A  sale  is  a  contract  for  the  transfer  of  jtroperty  from 
one  person  to  another  for  a  vahiahlc  considerutior;-"  *  So,  too, 
that  otlier  very  hiuli  authority  on  the  law  of  sales,  Mr.  Justice 
Blac'.burn,  says:  '*A  contract  concerning  the  sale  of  goods  mav 
be  defiued  to  be  a  mutual  agreement  l)et\veen  the  owner  of  goods 
and  anotiier,  that  the  property  in  the  goods  shall  for  some  price 
or  consideration  be  transferred  to  the  other,  at  such  a  tiuie  ami 
in  such  a  manner  as  is  there  agreed.  If  the  consideration  to  be 
given  for  the  goods  is  not  money,  it  might,  perhaps,  in  popular 
language,  rather  be  called  barter  than  sale  ;  liut  the  li'gal  elfcct  U 
the  same  in  both  cases." - 

And  a  still  later  English  writer  on  the  same  subject  says:  — 
"  Sale,  according  to  the  civil  law  in  the  time  of  Justinian,  and  ac-j 
cording  to  the  modern  systems  of  law  which  avowedly  adopt  tlii' 
jirineii»les  of  the  civil  law,  is  considered  as  a  contraei  l)etweeu  tlicl 
owner  oi  a  thing  and  anothei-  |»erson,  whereliy  the  parties  consent j 
to  the  transfer  of  property  in  the  thing  from  the  one  to  the  other, 
and  the  payment  by  the  latter  to  the  former  of  a  certain  suniotj 
nioney  (price).     In   Knglish  law,  sale,  considered  as  a  contnict. 
dill'ers  from  the  aliove  delinition  in  this,  that  the  oliligation  i'uii-| 
tracted  by  the  .seeoud  party  is  not  necessarily  payment  of  a  cer- 
tain sum  of  money,  but  may  consist  of  the  render  of  value  of  iiiiyi 
description.  .  .  .  Sale,  considered  as  a  contract,  may  be  defiiKil, 
a<greeably  to  Knglish  law,  as 

"An  agreenu'ut   maile  between  a  person  having  |)owcr  to  di 
pose  of  the  proi)erty  in  a  thing  (who  is  called  the  seller),  amlj 
another  person  (called  the  buyer),  with  the  joint  intention,  cX' 
pressed  as  by  law  required,  that  the  pro])erty  in  the  thing  sliail, 
at  such  time  and  in  sucdi  a  manner  as  is  then  s|ice'ilied,  be  trans 
ferred  to  the  buyrr  in  consideration  of  value  to  b(!  rendere(l  Inj 
the  buyer,  and  ;•/',•  »v/vva."'^ 

Th.ese,  with  whieh  we  concur,  we  give  as  instances  of  dcfipi- 
tions  of  a  sale,  where  a  saJie  is  treated  as  in  effect  the  same  as  a 
barter  or  e\ehanue.  As  instances  where,  with  t»pud  positiveiioss. 
sales  are  treated  as  dilTerinj  essentially  from  a  barter  or  e.v| 
change,  we  furnish  the  foUowinir  :  — 

Mr.  W.  W.  Story,  in  his  work  on  Sales,  says:     "A  sal'-  is 
transfer  of  the  al»solut(.'  title  to  pro|)erty  for  a  certain  agreed  |irii'e.| 
It  is  a  contract  between  two  parties.  (»ne  of  whom  acquires  thi'nIi'T 
a  property  in  the  thing  sold,  and  the  other  parts  with  it  Uw  a  v;il 
aible  consideration.     If  the  property  in  any  commodity  be  volun-l 


i^ 


1  2  Kent's  Com.,  4fi8. 


^  BlaukburB  ou  Sales,  IntroductMS,  ix.     18S1 


*  Cuiiipb.  ua  .Sales,  1,  -.     London,  i  • 


I'AKT   I 


•J 


WHAT   IS   A   SALE? 


8 


tiiiilv  transfiMTcd  without  a  valualdc  consideration,  it  is  a  gilt ;  if 
011(3  articlo  be  exchan<red  for  another,  it  is  a  baiter;  but  a  sale 
takes  phicc  only  when  tliero  is  a  transfer  of  the  title  to  property 
for  a  price  ; "  ^  trcatint?  a  "  priee  "  as  a  jtriee  in  nioiu-y. 

For  this.  Story  eites  IJlaokstone,  C'oniyn,  and  the  civil  law.  I>ut, 
;is  \vc  have  seen,  Uluekstone  holds  that"  with  rej/ard  to  the  law  of 
.sales  and  exchani^es  there  is  no  diri'erenee.'"'^  Coniyn  is  (|uite  as 
tar  I'loMi  licintr  an  authority  for  Story's  position;  the  lanu-iuiu'e  of 
tliat  old  wiiter  iieinir,  simply,  "  If  a  man  sell  his  goods  to  an- 
other, the  property  vests  in  the  vendee."''  And,  iis  intimated  by 
CaiiililicU,  from  whom  wo  have  quoted,"*  the  eivi!  law  is  essentially 
(htlircnt  on  that  point  from  oins  ;  the  distinction  taken  by  the 
civil  law^  between  "natural  contniets"  and  "civil  contracts," 
umltT  which  the  iiuestion  wns  raised  and  was  lonu-  open,  l»einir  n(tt 
at  all  rtuardcd  by  the  conunon  law.'^  Another  highly  rcspcetalth; 
Ann  lii'aii  writer  says:  "A  sale  of  si  chattel  is  an  exehanj^o 
llicreni  for  money  ;  but  a  sale  is  distinctly  discrimiutited  in  many 
n's|M(ts  from  an  exchanire  in  law,  an  exchaiiire  beini-v  the  u;iving 
of  one  thin;/  and  the  receiviiiL^  (if  another  thinir ;  while  a  sale  is 
the  LMviu"!;  of  one  thint?  for  that  which  is  the  repre8entati\o  of  all 

lies.    ' 

The  authority  cited  for  this  is  one  we  have  already  addiu'cd,**  in 
rofrrriuu:  to  the  distinction  existin;^'  in  the  matter  between  the 
cDiuinon  iiud  the  civil  law.  We  think  Salkeld,  fairly  eonsideivd,  is 
an  authority  the  other  way.  His  langna,L''e  is  "■  l\rtiiuttjtl'>  I'irlnti 
I'st  (■  III jttionl,  hut  exchauires  were  the  orijiinal  and  natural  way  of 
ciiiiuiiercp,  ]ireccdent  to  buyiiiy,  for  tliei'c  was  no  buyint:  till 
mill 


icy  was  invented  ;  now,  in  exehan<i;iny,  Imtli  iKxrtua  are  bui/tr- 


(iii'l  Hclhri*,  and  both  equulli/  warntnt. 


"y 


'  Stnrv  on  Sales,  1. 
-  '1  I'-ik.  Coin..  4 Hi. 

3  ('..III.  iii.u.,  n^'iis,  r>.  3. 

'  Ciiinlili.  nil  Siili'.'i.  1. 
°  .\iioiiyiiKiUs,  :',  Silk.  1')", 
''  S.v  i,Mn<.  lit,,  jii.  14(1;  Inst.,  lili.  iii. 
c.  23;  lii'4.,  lil..  .wiii.  c.  3. 


1  1'. 


iiiN,  on  ( 'on. 


.'i'.M.     2  A.lili-on  nil 


l^iii.,  Sii;..  is  to  ilic  s.iinc  ('(Vcit  ;  Imt  hi-^ 
•  it:iti"ii.  as  an   authority,   Iroin    rotlii.  r, 

I  Oti!i<;iiiMii<,  No.  ti,  lias  rcfcrriici'  only  to 
till  ttillknowii  livil-liivv  rule,  ami  is  no! 

1 3Iil'li(;ilili'  to  the  coiiinion-law  s\ >t(ni. 
'  .\  III  III  vinous,  3  Salk.  l.'u. 
^  I'otliit-r,    altliiJii;,'li    clainiing    that   a 

jsali'  is  ••sscntially  iliU'iTcnt  from  an  ex- 
cli,nii;i',  ill  c'tli'ct  shows,  as  in  the  casiMii 
Snlkiil,  that  an   cxchanirc  is  n'nlly   t\V(> 

pal'S  ill  wiiii'h  each  of  tlir  tliiii;;s  is  both 
tlic  thin;;  .solil  and  the  price,  ami  eaeli  of 
t.Ke  niiiti-acting  parties  is  both  .seller  ami 


buyer.  His  lanjriiage  is:  "The  contraet 
of  e.\ihaii,i:e  luais  soim  leseliiblaliee  tn  the 
eolitiaet  of  sale.  It  lleM  the  Jilaee  ol 
thai  eoiitlaet  before  the  use  of  money, 
whi'  h  J,'ave  birth  to  tin'  contraet  of  sulc  ; 
for  which  reason  tli>'  'sal  iiiians  thoiij;lit 
that  an  exehaiiv'c  wa.s  ,i  tiiii'  contract  of  s-.ile. 
1>.  Us.  1.  1.  'I'lieopiiiinii  iif  the  I'roculci- 
alls,  wild  deciili'that  the  roiitlai-t  of  ix- 
chaiiLTe  isditlerelil  I  loin  tiie  contract  ol  sale, 
is  inon-  cc--ect.  'I'lu  |iiiiici|ial  diU'erciice  is, 
th.it  in  the  contract  ot  sale  we  di.-^tiiijiiiisii 
tlie  tliini,'  and  the  iiiice;  we  distiii^'uish 
between  the  contraet iiifi  jiarlies,  one  of 
whoinistlie  sellerand  tiieoihcrthc  laiyei. 
On  the  contrary,  in  the  contract  uf  exi  hiinj^i! 
each  is  both  the  tliinf;  aiel  the  price;  each 
of  the  contraetiiij;  parties  is  both  seller 
and  buyer.  I).  l.H,  1,  1.  §1;  D.  19,  4.  1." 
Poth.  oil  S.ile,  Ciishin^'s  Trans.,  I't.  7, 
art.  6,  pi.  620. 


i 


I '  i 


I      1 


f| 


(if 


COMMENTARIES  ON  SALES. 


[book  I. 


As  in  an  oxcliango  or  barter  "  both  parties  are  buyers  and  st^ll- 
crs,"  fur  which,  in  the  case  in  Sall<eld,  we  have  express  authority, 
then  this  important  point,  which  we  have  failed  to  (ind  elsewhere 
noticed,  results,  that  as  the  parties  are  buyeni  and  Hi-Urni  there  is 
necessarily  "a  sale  ;"  and  not  oidy  so,  but  as  both  the  parties  iin 
buvers  and  both  are  sellers,  there  is  a  double  sale,  containing  uut 
only  the  usual  inii'redient  of  a  sale,  that  both  as  sellers  '"e(pi;illy 
warrant "  the  subject  of  their  respective  sales;  but  all  the  otlu'r 
in'^redients  of  a  sale,  including  the  eviden<;e  reijuired  by  the  stat- 
ute of  frauds,  would  pertain  to  each  of  the  sales  covered  by  that 
which,  prior  to  the  invention  of  nioney,  was  the  only  kind  of  com- 
merce '  known,  and  which  was  then  alone  known  as  exchange  m 
barter,  and  of  which  our  modern  sales  are  the  legitimate  issiu.'; 
each  of  the  sales  in  a  barter  or  exchange  thus  possessing  all  tlio 
essential  elements,  and  being  governed  virtually  Ijy  the  same  la\v^. 
as  in  the  case  of  a  single  sale.^ 

'  'I'lii'  wiiiil    "tiailo,"   ill  its   itro.iilcst         Ajr.iiii,   "  Wl-.i'ti  iiiimiiici'.ililf  iiiiivlati  1 
si<^'tiillralii)n,   iinlDdi's  not  mily  tin'  l)iisi-     iiinl    iiii|i'|ii'iiili'iit    piiMiiis    iiioijiircil    ti 
iicss  ol  r\ili,iii;^iiij;  rdiiiiiioilitirs  by  liaitiT,      v.iiioiis  tliinns  iicciltiil  li>  lifi;  ami  luiiirni'. 


hut  tl 


IC   llll>illcss    III     IlllVIII''  illK 


(iM'tll 


in;!  loi'     I'li'llos    fXiliiiMi'cs 


l»-t 


Wfrn    imlivi'lii 


inoni'v,  iir  iiiinnirivc  iiiid  tiallic  j^ciiurally.      were   i(M|iii>iti'  in    onii'i    lliit  tlii'V  inul: 


M 


^y 


Kin,  liil  v.  A.  'j;U.  siipplv  tiii'nisi'lvfs  Willi  «  hit  tin  y  ili 

,\  sale  is  sinijily  a   transl'iT  of  |ii(i|i-  Tlnsc  vxrliaii^'cs    ( cin>titutcil    tiailc 

erty  for  a  ('iinsiiliiatiiin."     Wilson,  urtju-  money  was  I'sscntial  as  tlirir  niciiinni. 

enlo,   ill    An^'lo-l',f,'\|itiaii  Navi^^ation   Co.  as  soon  as  tlie  iiatinii    1"  rami' tin- moI 


V.  He 


I-.  U.  inc.  I' 


Ami  mill     ilueer  ot  all   sorts  of  ( ommoilities,  li 


HelijaMiin  (see    sei 


li 


•nj.  on  Sales),  in 


IS  no  lleeij  ot  I'Xeliaiij'es  lict 


ween  imliviil' 


«'liienlatim,'  the  tlislimtioii  lietwcen  a  sale     iials  that   ihev   mi;;ht   nt-i  what    tlnv  i* 


<l   a   h 


Insiir 


liliiieiil,    litis    South    Australian     i|Uiieil. 


Ml 


1. 


Ha 


liamlell,    I,.    H.    ,{  1'.    I'.       \>.    11^.      llile  •'exeliail^'es  ■  is   tl'eat.il  ili 


](il,  where  a  salo  ami  a  harter  or  e.\ihan;,'e     merely  another  name  loi  sale 


nre  liealeil  as  iileiitieal,  ami  whi 


lulll 


Ahe.uly 


iiUsioineil  to  ai  lept  money  lor  romiiii 


ill;;  Sir  William   .lom's,   it  was  lieM,   that      ties,  the  iieii|ile  next  aire|iteil  promi 
■'wherever  there  is  a  ilelivery  ol   piopeitv     iiionev,  ami 


.  lot 


il  to  look  ,tt  all 


on  a  coiitraet  !or  an  eipuvalent   in  inonev 


the  representative  loi  the  thin;,  lepreseiilr 
or  aiiiiir  ol/nr  ni/ii'ihl,-  rmiiinnilH  ii,  ami  not  .Momv  was  hut  a  siijii  of  leal  i  omimilili' 
for    the    return    of   Ins    itlentieal  siil.|eet-      Imt   eivilit   was   liiit  tho  sii,'ii  of  a   -i^'ii 


matter  ill  its  ori;;iii  il  or  an   altereil  lorni 
ihis  is  (I  Iriiiisfrr  ,,/  /irn/irr/i/   fir  vit/iir, — 


///(r/. 


p.  :i-Jii. 

MiilieV  is    lilelelv  a    tori    for  till 


it  II 


iml  not  a  hailnieiit. 


ivimnts 


I'ietv  ;  while  all   tie 


So,  piipiilaily,  "All  the  woiM  is  a  mil-      transactions  of  iiaile   am!  Iinaie 


ki«t, 


«1  It 


IS  a   mat 


kit 


nml  all  the  m 


the    time 

I. 


tied    hv  eheeks 


noti 


ml  women  mr  InnuiKi     wiili  traiister  ol   hoi 


mid  silliinj  nil  till'  liiiti'.  Till  III  Ili  IT  III  err     C 


censr.i 


iirr  i-iiii.i/itiiHi/  oijiriiiij 


tliiii'l  ill  rjilnnnir  fur  sniiir/liiiKj  cisr,  diiil 


111     North    Aiiiei 
.lainiary,    IS'.'l.   p,    111. 


ills 

eiHIIll-' 
lean    I 


•view  I : 


Tl 


le    funetion   of  inonev.    wlietliir 


Ciiilstanllii    liitinii)    likr    Imrijains    inrssnl     golil,    silver,    paper,    or    other    mate 


vpim 
illy  I 


11.1. 
(liiii's  ill 


genuine    smile     ireii-      ii  to  iiirnsinr   tlnviilurnflliiiiijs   In  Ir'' 
II     I    genuine  siiillo      rlnni/jnl.    III   iiiil     III.     I Jlrr/imi    r.irli  ni'V 


tiaek.      Sonielioily  has  .saluted   me  lespeet-      Hon.  Houer  (.>.    .Mills,  in    N.  Am.   I 
I'lilly,    and    that    person    is   jinid   in    In.t     M 


luii'     (i.   ('.,   sin  ill!    for  smile 


IH'.MI. 

And    au'ain.     from    "  Money, 


ami  i!i 


spcct  for  resiHMt  ;  a  hartor,  yot  a  .sale  ;  the     Meehanism  of  ];\.h,iiii,'e,'    hy    I'i.>l'.  V 


essential   71/(1/ /»rt)  (/((tl  of  a  sale   not  heuii;     Stanley  .levi 


M.  A.,  I'.  1; 


waiitinj. 


Anoiiviiious,     3     S.ilk.    l.'i"). 


The  earliest    lorm  ol   exehaiiL 


Ro.sc  0.    f'h'Vi'lamr.s  Sludifs,  licciprucitij,     have   eoiisisted    in    >;iviii>,'  what    wis  11 


14th  ed.  pp.  27,  31 


wanted  directly  for  that  which  waswuiilfiij 


PART   I.] 


WHAT   IS   A   SALE? 


Still  another  aiitliority  for  a  definition,  which,  in  effect,  is  the 
siiiur  us  tliiit  of  I'arsons,  and  which  v.o  think  is  a  little  worse 
tiiaii  that  ol"  Story,  we  get  from  a  well-known  Knglish  work  liy 
an  Anicrican  writer,  Ijcnjamin  ou  Sales,  lienjamin  defines  "a 
sale  of  personal  property"  as  "a  transfer  of  the  absolute  or  <ren- 
eral  property  in  a  thing  for  a  price  in  money."  '    The  learned 


Till-   Miii|>li'    tr.illii'   wo  i:ill    'barter,'  or 

'tni'k,   till'  Kniii  ii  ''■'"'.  ••"'1  ili>!iM,i,'iii>h 

it  Iruiii  ^ali' mill  |iiiriliiisi',  in  wliii  li  mu'  ol' 

tlii'  .nti-lis  i.iiliiiii'i',1  is  iiitciiilcil   to  l)c 

[lirM   ciilv  I'nr  a   ^liort  tiiix',   until    it    is 

itiii  witli  hi  a  S'fDiiil  mi  nf  i  iihiiii'ii-. 

'I'lir  i.lijirt  wlij.li  tinis  t('iii|"irarily  inti-r- 

|Vi  iM  s  ill  siili'  .iiiil  |iiiiili,i.M'  ii  iiiiiiiL'y.      At 

ltii~l  NJijliI  it  iiii^'lit    seem   th.it   tlir  llic   of 

liii"iii  y  iiiily  iliMiMcs  tia-  tiiiulilc,  liy  iiuk- 

liiu'  lii'ii  I'.irhiiiKji.i    iH'ri':>sMiy    wImti'   one 

|v  1^  siitliilriit  ■  but  a  slii;lil  analysis  nl  tlic 

Idilli'iiltiis  iiilii'iiiit  iusiiii|ilf  barttr  shows 

Itli.il    till'  lial.ilKi'  of  tioiiluc   lies  ipiitr  in 

[tlir  iip|io>iti' ilircction.  .  .  .   In  tlir  iiicsriit 

lilav  liartiM-  still   v'<""<   <"'   ill   -sonic   rases, 

Irvi'ii   HI  tlic  iiMisl   ailvaucL'il    coninii'ri'ial 

Itiiiiiitrits,    Iml    only   wlii'u   its  incunvi'ii- 

licieis  are  not  cxin'rii'llicil.  ildlilestir  Si'I- 
Valits  ii  rt'ivi'  part  o\'  tlirir  \va;,'i's  in  lioard 
liiil  loiljiiiiLj ;  the  lariii  lalHUoi  may  par- 
tially  iitcive  |iaynirut  in  iiilci  or  liariey, 
or  the  uso  ol'  a  |pitic  cii  l.iiul.  It  li.is 
always  liccn  usual  I'ol  the  Uiillrr  to  Ik; 
^lajij  liy  a  portinii  nl'  tin-  corn  wli^  1;  ho 
UmimU.  Till-  tiiic'k  ol  barter  system,  by 
111  li  wnikiiirii  todk  tlieir  waf^es  in  kiiul, 
|l:i>  li  iliMv  yet  been  extill^'lllslieil  ill  some 
it-iii  Kii^laml.  Pieces  ol'  laii<l  are  occa- 
^i'liiillv  e\i  liaiiL;eil  by  acljiuiiiiiL;  laiul- 
puiier^  ;  but  all  these  are  comparatively 
Irilliii;;  cases.  In  almost  all  iiiis  nf  cr- 
tli'ifi'ji  money  now  iiiieiveiies  III  one  way 
br  utln-r.  Ami  even  when  it  iloes  not 
)a<.>  hum  hand  to  hand,  it  serves  as  tie! 
|li>i>iiie  by  which  the  amounts  f,'iveii  iiiul 
lived  are  esllmateil.  Cuiiiiiu-nv  liiijnis 
'!i  ImiiY,  iinil  in  it  c  liit'in  snisr  it  iiiiniia 
'■iriii-i  l)ut  the  last  I'orm  of  bmirr  (the 
iii'liiii  sale)  is  very  dill'erent  lioni  the 
liM  lorui.  By  I'ar  the  greater  part  of 
Itiliiiiierei  d  pavmeiits  are  made  at  the 
Jii^.iit  i'  ly  ill  Kiiijjaiul  a]>pareiitly  «  ithoiit 
aid  .i|  met. dill'  money,  but  they  a  o 
•adlly  a  ijusted,  because  money  ai'ts  as 
lie  ciMiiiiiiiii  dciiiiMiinator,  and  what  is 
|iMi;;lit  ill  oiii' direct ioii  is  balanced  oil  by 
ill  It  I-  >cild  ill  another  direction." 

iidir    statutes    rei,'ulatin^'    or     pro- 

libitiie,'  the  ^ale  of  intovieillillt,'  lii|Uors, 
^itiitcs  111'  limitation,  statutes  of  fraud, 

id  "llici  aiialonoiis  statutes,  sales  and 
Bitcit  or  evchanj^'cs  are  treated  as  in 
B'l  t  the  same,  and  payments  in  sjieciru: 

•id's  are  held  to  be  payments  within 
in'Miiiiig  uf  buidi  statutes.     Soo  cases 


cited,  iiif'rii,  in  c  oniicctioii  with  our  dis- 
cussion (d'  the  statute  ot  fiauils.  So,  too, 
money  itself  is  also  treated  as  a  coiilliiod- 
itv,  — the  sllbjeit  id  a  puit  base  and  sale, 
.See  r.roiisun  r.  I{udcs.  7  Wall.  -J'i'.';  Kaw 
I'.  Mar^tcllei,  •!  I'riinh,  lo;  Tiebilcoidi  v. 
Wilson,  12  Wall.  iW7;  Taiip  v.  Ibcw,   1(» 

Mow.  'JIS;  ('heaili:  Kee  v.  (uiteil  States, 
3  Wall.  ;i2o;  I'aikir  r.  Davi,.  \\>  W.ill. 
4ri7;  Hepburn  r.  (Jriswnld,  «  Wall.  tiiiO  ; 
Wariihohl  I'.  Sc  lilictiii(,'.  It)  Iowa,  214  ; 
Shoeiibei;;  !'.  Watts,  1(1  Am.  I«.iw  lieij. 
.'■).'i;j;  Wood  r.  ItuUciis,  ti  Alien,  ;'.lti. 

I  Ueii|aiiiin  •piililii's  this  with  the  su|i- 
pleiueiitaiy  lelnaik  that  it  is  "a  price  iu 
money  paid  or  iiroiiiiMd."  If  the  jii-ifiiuse 
be  in  wiitiiij,',  it  usually  takes  tie-  loriii  of 
a  prniiiissory  note,  which  is  iKd  money. 
But  his  remaik,  even  from  his  own  point 
of  view.  Would  liMpiire  to  lie  still  liiither 
supplemented.  It  the  plice.  III  or<lcl  to 
iiiaki'  the  transai  timi  a  sale,  may  bi'  money 
pri  miscil,  as  by  a  ]iicuiiissoiy  not  •,  it  is 
evident  tll.lt  the  dcllnitloll  must  be  still 
further  opciic(|,  ami  unlind  or  i-i'iHisi,d 
be  also  added,  in  oldcl  to  cover  and  in- 
clude as  sales  those  lai<;e  and  iniporlaiit 
transactions  where  the  )i,iyiiii  nt  is  iiiaile 
not  strictly  in  inonev  or  piomissory  notes, 
but  111  chec  ks,  ilralls.  or  liills  (d'  exidiaii>;e. 
The  deliiiitiiMi  which  limits  a  sale  to  the 
one  case  id' a  price  stiictiv  in  iiiouey  is  the 
Very  Worst  of  all  the  ileliintioiis  id'  a  sale. 
The  learned  author  evidently  jrave  the 
matter  but  little  thoi|i;ht.  The  deliniiion 
and  e.xtensioii  id'  it  weie  obviously,  al- 
thoii^di  not  credited  by  him,  adopted  from 
some  of  the  old  coniinoiil.iw  wi  iters.  See 
Williamson  r.  lidiy,  .S  llow.  .'■)4I,  where 
the  liiii,'ua;,'e  is  identical  with  that  used 
by  15eii,|amiii  ;  and  where  Noy's  Max., 
c.  4"_',  and  .Sliep.  Toindi.,  214,  are  iiuoti-d. 
liut  tlii'se  aiithori''es  iiiendy  mean  that  to 
constitute  a  sale  there  must  be  a  consider- 
ation, —  a  qiiiil  jiru  i/iiii.  Thus  Nny  says  : 
"  In  all  bargains,  sales,  contracts,  luoiii- 
ises,  and  aj;reemeiits,  there  must  be  i/uul 
pro  iiiio."  Noy's  Mix.,  c.  42,  p.  S7.  And, 
"  It  is  a  Keneial  le.iriiinj^  that  tlicie  must 
be  in  every  contract  i/nul  /im  '/no,  vi/., 
some  valuable  consideration  between  the 
parties  to  bo  jiaid  or  performed,  either 
lu'esently  or  at  a  dav  to  come  ;  or  i  Ise 
some  e.irnest  to  be  i;iveli  present Iv,  other- 
wise the  contract  is  void  ;  (or  cj-  nnilo 
IKido  nun  orUar  udio,"      Ibid,      Ai^ain, 


i- 


:!■  ■n 


6 


COMMENTARTES   ON   SALES. 


[nOOK  I. 


' '  i 


writer,  in  the  preface  to  liis  first  edition,  and  in  other  parts  of  liis 
work,  intinuites  tiiat  lie  follows  and  virtually  ineoi'porutes  in  In. 
woi'k,  Mlaekbiirn  on  Sales.  As  reirards  this  dclinition,  it  is  eci- 
tainly  a  most  radical  departure  from  that  of  lilaekhurn,  aiid,  \\> 
think  il  is,  in  two  important  respects,  very  far  from  l)ciii<r  an  im- 
provement on  the  delinilion  of  one  of  the  very  aldest  of  Kiiif|aiiir> 
judges,  the  author  of  jJlaekhiirn  on  Sales,  Mr.  .Justice  Mlaekliiiin: 
whose  deliiiiliiMi  we  repeat,  in  order  to  place  it  in  direct  juxtajiiisi- 
tion  with  that  of  Iji'iijainin.  it  is,  —  "A  contract  eoverin;;'  tln' 
sale  of  uiiods  may  l)e  delined  to  In;  a  mutual  aiireement  hetwi  i.ii 
the  owner  of  uoods  and  another,  that  the  property  in  tin;  <>()(jds 
shall,  for  some  price  or  consideration,  lie  transferred  to  tlie  othi, 
at  such  a  time  and  in  such  a  manner  as  is  there  airreetl.  If  il|. 
considciation  to  be  <;iven  for  the  goods  is  not  money,  it  miuhi. 
perhaps,  in  popular  language,  rather  be  calh'd  barter  than  hale: 
l)iit  the  legal  {^I'iL'i'X  is  the  same  in  both  cases."  ^ 

In  this  same  connection,  and  as  being,  we  think,  a  still  better  dcli 
nition  tlian  that  of  IMackbiirn,  we  re(|iiote  from  the  later  luiiili>l. 
book  on  Sales,'-  and  adopt,  as  one  which  we  think  entirely  coiaci, 
the  dclinition  which  we  have  already  (lUoled  approvinuly ;  — 

"Side,"  says  Mr.  Campbell,  '•  considered  us  a  contract,  may  li. 
delined  agreealdy  to  English  law,  as 

'•  An  aiiieemeiit  made  lietut'cn  a  i)erson  having  power  to  d;- 
pose  of  the  property  in  a  thing  (who  is  callctl  the  seller)  an; 
another  person  (callecl  the  buyer),  with  the  joint  intention,  (\ 
])ressed  as  liy  law  re(|iiired,  that  the  jtroperty  in  the  thing  sku.. 
at  such  tinu!  and  in  such  iuanner  as  is  then  specilii'd,  be  trai;< 
I'errcd  to  the  laiyer  in  consideration  of  value  to  be  rendereil  i 
the  buyer,  and  vice  rrrxa." 

The  <'sseiitial   errors  made  by  Henjamin  in  his  definition.  « 
think,  are,  first,  in  stating  that  the  consideration  for  a  sale  iiii; 
be  "  for  a  price  in  money;"  and  second,  in  simply  delining  it  "; 
a  transfer"  of  the  property  in  the  thing  sold;  omitting  the  fa;.j 
insisted  upon  in  the  better  delinitioiis  of  Kent,  IJlackburii,  ai:;j 
('ampltell.  of  its  lieing  a  mutual  confrart  between  the  parties 
the  transfer, etc.     Thus  while  on  the  latter  ground  the  deiiiiitiur,- 
of  IJIackstone  and   IJeiijamin  arc  fairly  open  to  the  criticism 'j 
one  of  the  ablest  of  the  American  judges,-'  the  Ijetter  definilioiL' 


III  j,i'  [ 


"  I5ar(»aiii  niid  salo  ilutli  si^nity  tlic  trans-  iiig  it,  and  (Miinot  Iw  without  it."    Sk; 

li'irini,'  (if  llii',.  inojirrty  ol'  u  tliini;  Imiu  Toiiili.,  (.  !*,  [i.  l.''2l. 

one  to  auolliii   iiiiiin    vahialilc  roiisjilcia-  '  Hlaiklnini  nii  Sal(>s,  Int.,  ix. 

lion.     Ami  liinin  on'y  it  ilotli  ililln-  lioiu  '■'  <ani|ili(ll  on  Salfs,  '>. 

n  gitt,  — lliat    tins  may   l)o  williout  any  •'  lUf^clow,  ('.,1.,   in  (iaidiicr  i'.  I-""-! 

ronsidi'iation   or   cimsu   at    all,   ami   that  94    Mass.   4;i,   41,  wlioru   he  sa\>;  "Ti-i 

liath  always  some  luuritonous  cause  luov-  ur linary  dchnitioii  of  a  sale,  as  a  tti 


[book  1. 

[\rt8  of  liis 
ites  in  liis 
1,  it  is  ccr- 
■II,  and,  wi' 
inix  an  im- 
Kiiiflaml- 
lUackbiini: 
t  juxtaiiDsi- 
)V('rin^'  till' 

M\t  iH'tWnjll 

1  tlui  jitHxls 
o  the  ()tl»i'i. 
!(>.!.  11'  th. 
•y,  it  niiulii. 
[•  tluiu  hale; 

^llH'ttrrdti 
itrr  KniiliM. 
ivly  conx'i:!. 
ixly ".  — 
ract,  may  l- 


lowor  to  ill- 
sc'Ui'i')  an; 

iitcntion,  i\- 

•  thinir  sliali. 

i'd,  bo  tniiiv 
r(>ndoix'd  h; 

•fmiiion.  « 
a  salo  laiivj 
inini;'  it  "I'l 

lllii'    tlu>  I'iK'ij 

icl<l)nrn,  :ii.;j 
\('  partifs 
10  (l»'lini'i"''i 

critii'isiu 
or  dcliniliuiiil 

tliout  it."    i 

Int.,  ix. 

C.anliuM-  I'.  '•"J 
;  111-  ^as'N  ;  "^-f 
sale,  as  a  tiiil 


PART  r."l 


WHAT   IS   A    SALE? 


of  Kent,  Blacklturn,  and  Campholl,  in  wlii.-li  llio  sale  is  defined 
as  a  "contiaot,"  etc.,  are  not  o|(en  to  sueh  ol»jietion.s.  The  sale 
bciiiiT  a  '•  foiitraet,"  partits  eapal)lo  of  coiitractmL',  nuitiial  a.ssent, 
lc-;ij  s\il>i'"'t-i"ii'l''''"  •*!  contract,  and  tin-  I'itnsuli'ratKm.  are  all 
jdv-siippnMil.as  well  as  the  other  retpiirenients  necessary  to  maiie 
it  a  lc'i!al  euutraot. 

Oiii'  verv  .serious  evil  resiiltiiiir  t'roni  IcaviiiL'  out  of  siuht  that  a 
Ball"  is  a  edntracl,  and  einhodics  all  the  cssfiitial  inLMfilioiits  of  a 
ft|fniitract.  will  In'  adverted  to  iiiorf  tiiUy  hcrcallcr.  it  is  stttlicient 
lito  say  oil  the  point  here,  that  as  in  iill  contracts,  the  intvntioit  of 
Mthc  paitns.  or,  in  other  lannuaL-'e,  tiieir  muhinl  asH<-u!,  is  what  is 
Wto  'govern  in  the  eonstriietiuii  of  the  contract  (»f  sale  ;  and  in  de- 
'%teiniiiiiii,i:  what  the  contract  of  (he  parties  is,  such  intention  or 
,|jiiniitii;d  assent  as  much  afl'ects  the  contract  of  sale,  as  it  allecls 
^ain  (itlier  cunti'act.  It  is,  therefore,  not  at  all  a  matter  of  sur- 
•Mi)ri>e,  that,  where  courts  and  text -writers  have  itMiored  such 
||j)l;iiiilv  iiianil'ested  intention  as  a  noNcrninL'  principle,  and  have 
JlBulot. tilted  fur  it,  for  instance,  such  tests  as  the  weifihinir  or  not 
':fVeii;liiii'-%  the  measmintr  or  not  ineasurinti',  lioods  alleged  to  have 
|ll)eeii  Mp|i|,  ill  oilier  to  decide  whether  the  property  in  such  i^oods 
'^lias  or  liiis  nut  pa.ssed,  the  most  ine.vtricaltle  confusion  has  been 
:;'|.tlie  result. 

IJeiiiaiiiiu's  other  mistake  in  his  definition  is  not  less  serious. 
i^p'olluuiiii:  up  his  delinition,  he  adds, — "ll'  any  other  considera- 
tion than  inoiifi/  be  jriveii,  it  is  not  a  sale."'  A  definition  of 
"money  "  in  the  sense  in  which  it  is  used  in  the  delinition  of  sale 
reli'ired  to,  must  entirely  exclude,  not  only  all  reprt'.seiitatives  of 
money,  such  as  bills  of  exchaii'.:*',  promissory  notes,-  etc.,  but  it 
must  also,  to  make  (he  deliniti(»n  of  a  salt-  as  distini,niished  from 
an   exchange  or  a  barter  of   any   value,  also  excliHle   all  such 


lliiiiiatiiiii  (.r  1)1(1) irity  fiitiii  one  person  to 
liiiiHilicr  Icir  ;i  |iii('(',  iloi's  Mill   liilly  ixihi'si 

tlir    c>>ifill;il    I'lfliii'lils    wliuli    ilitcl     iulo 

nii'l  iiiaki' ii|>  till' ('(intnu't.  A  iiinii'  ((nn* 
hilrtc  riiimniiiliuli  (il  tliisc  Wdtllil  lie, — 
I  tuiii]iri(iii  |i:iiliis  to  i-rili'i'  into  a  contiiiit, 

an  :ij,'i(  iMjiiMt  lo  sfll,  nnij  tln'  njutniil  ii^Miit 

(if  liir  |Mllli^  to  ill.'  .sulpji'ct-rn.ltti'l    (if  tliu 

I  Male  Mn>l  to  the  |>n(i'  to  1)1'  |)aiil  tlicicfor. 
Tlnis,  il  c.innot  Ix'  ilonlitnl  tliat  if,  iiiider 

j  a  rontiacl  of  wile,  a  liilivcry  was  niailo 
tliiDii'.'li  niistaivc  of  an  aitnlc  (litlcrcnt 
lion)  ili.ii  ,i;,'i'('('(l  iijioii  by  the  parties, 
till  re  Woi'M  bo  no  sale  of  Ihi'  aitlile  ile- 
livciiii.  anil  no  piopi'ity  in  it  woiiM  pass, 
(ill  till'  sinijiii'  nasDii  that,  till'  vemloi  bad 
not  auii'i'il  to  si'll  rioi  tlie  venileo  to  buy 

i  it.  'I'licie  wonld,  in  faet,  lie  no  c(«ntia('t 
between  the  parties  in  lesjiett  to  the  ni- 


tiile  aitnally  fmiiisbeil;  or,  to  express  it 
in  (lllli'ii'nl  woiiU,  when  a  material  mis- 
taki'  (Miiiis  III  ir^pcil  to  the  natiiic  of  tli(( 
Milijei  i-niatlci  of  a  sale,  tlii'ii'  i^  no  inn- 
tiial  as^t■nt,  ainl  tlien  lole  the  cuiilraet  is 
Void." 

•  Ki'iijaniiii  on  Sali'>,  2. 

'^    Wliel-e    Hooil,    ale    sold    Upon    a    ('on- 

trai  t  to  pay  loi   liii'in  by  a  iiill,  and  u  bill 

is  ^iveii,   the    pri< aiinol    bi    leiovcreil 

until  the  pi'llod  of  the  bill  lias  clapx'd; 
but  if  delaiill  b-  inade  in  !:ivini;the  bill, 
an  aetion  will  ln'  at  oiiei'  to  inovcr  thi! 
present    Vahie   o!     .IK  ii   a    bill.       Mllsseli   V. 

riiic,  4  Ka^l,  117;  I'litton  v.  .Solomnson, 
3  II.  .v:  I'.  ;VS'J;  IJiooke  v.  White,  1  ji.  .V 
I'.  N.  U.  330;  liilps  V.  Winterliottoni,  2 
B.  &  Ad.  431. 


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8 


COMMENTARIES   ON  SALES. 


[book  I. 


money  as  can  be  treated  as  a  commodity.  Really,  this  would  ex- 
clude from  "  money,"  all  else  than  that  which  could  strictly  be 
classified  as  legal  tenders  in  the  loci  contractus.  Without  going 
even  to  this  length,  it  seems  that,  as  a  matter  of  strict  accuracy, 
only  five  per  cent  of  the  business  of  this  country  is  transacted 
with  "  money."  ^  It  is,  therefore,  perfectly  clear,  that  materially 
over  ninety-five  per  cent  of  what  in  this  country  are  usually  con- 
sidered sales  would  not  come  within  the  definitions  of  sales  fur- 
nished us  by  the  learned  authors  of  Parsons  on  Contracts  and 
Benjamin  on  Sales. 

The  authorities  usually  relied  on^  to  show  that  a  distinction 
exists  whicli  would  sustain  such  definitions,  are  little  more  than 
to  the  effect  that,  under  the  old  and  now  generally  obsolete  rules 
of  pleading  at  common  law,  the  declaration,  where  the  goods  sold 
were  to  be  paid  for  in  specific  articles,  in  labor,  etc.,  use  to  be  on  the 
special  contract  and  not  in  indebitatus  assumpsit.  But  as  the  same 
rule  applied  where  the  payment  was  to  be  by  a  bill  of  exchange, 
etc.,3  all  of  these  sales,  representing  the  vast  majority  of  the  sales 
of  all  civilized  countries,  in  modern  times,  would  have  to  be  taken 
out  of  their  ordinary  category  of  sales,  and,  with  the  law  sur- 
rounding them,  be  relegated  to  the  exchange  and  barter  of  the 
text-writers,  who  exclude  these  from  the  ordinary  legal  effect 
attaching  to  them  under  the  modern  law  of  sales.* 


1  Speech  by  Senator  Farwell  in  the 
Senate,  on  Api-:!  16,  1888. 

2  See  Harris  v.  Fowle,  cited  in  Barbe 
V.  Parker,  1  H.  Blk.  287;  Keys  v.  Har- 
wood,  2  C.  B.  905;  Hands  v.  'Burton,  9 
East,  349;  Harrison  v.  Luke,  14  iM.  &  W. 
139;  Sheldon  v.  Cox,  3  B.&C.  420;  Guer- 
reiro  v.  Teik',  3  B.  &  Akl.  616;  Forsyth  v. 
Jervis,  1  Stark.  437;  IJead  v.  Hutchinson, 
3  Camp.  532;  Jlitehell  v.  Gill,  12  N.  H. 
390;  Vail  v.  Strong,  10  Vt.  457;  Sheldon 
V.  Cox,  3  B.  &  C.  420. 

*  By  the  old  rules  of  pleading  at  com- 
mon law,  a  note  which  was  payable  at  a 
particular  i)laee  must  be  so  described  in 
the  declaration,  and  if  described  as  pay- 
able generally  it  was  a  fatal  variance. 
Caringtou  v.  Conistock,  I4  Peters,  43. 
See  2  Ch.  PI.  239,  16  Am.  ed.,  for  form 
of  count  for  not  accepting  bill  of  exchange 
for  goods  bargained  and  sold. 

♦  In  an  action  for  the  penalty  of  the 
statute,  12  Anne,  c.  16,  the  declaration 
stated  a  siiecilic  sum  of  money  to  have 
been  lent  (in  which  the  usury  consiste(l)  ; 
but  the  evidence  was  that  the  loan  was 
part  in  money  and  the  rest  in  goods  of  a 
Known  value,  which  the  party  receiving 
the  loan  agreed  to  take  as  cash.  This  was 
held  good  evidence  to  support  the  declara- 


tion. Barbo  v.  Parker,  1  H.  Blk.  284. 
In  this  case  goods  were  taken  as  cash,  and 
the  court  treated  them  as  money.  Lord 
Loughborough  said:  "  You  have  agreed  to 
take  it,  not  as  goods,  but  as  money.  You 
may  make  the  goods  represent  money,  as 
well  as  money  represent  goods.  A.  delivers 
this  piece  of  goods  not  as  a  commodity  to 
be  sold,  but  as  a  thing  of  specific  value, 
as  an  ali(iuot  part  of  the  money,  and  B.  so 
takes  it.  Then,  with  respect  "to  him,  this 
is  to  be  taken  as  constituting  .so  much  of 
that  common  measure  of  the  value  of  tlie 
commodity.  It  is  making  the  comn. 'dity 
itself  stand  in  the  place  of  the  thing  wldcii 
constitutes  the  value."  Hands  v.  Burton, 
9  East,  349,  is  to  tlie  same  etfcct.  There 
it  was  held  that  proof  that  the  defendant 
agreed  to  .sell  his  horse  to  the  plaintiff  for 
£31  lOs.,  and  at  the  same  time  agreed 
that  if  the  plaintiff  would  take  the  horse 
at  that  value,  he,  the  defendant,  would 
buy  another  horse  of  the  plaintilV's 
brother  for  £14  14s.,  and  that  the  differ- 
ence only  should  be  paid  to  the  defendant, 
will  support  a  count  charging  only  tliat, 
in  consideration  that  the  ]iiiiintifi' Wduld 
buy  of  the  defendant  a  horse  for  £31  Kk., 
the  defendant  did  buy  the  horse  /<»•  IliJit 
price,  and  did  pay  to  the  di'fendant  the  said 


PART  I.] 


WHAT  IS  A  SALE? 


We  cannot  better  conclude  our  discussion  of  this  matter  which 
lies  at  the  very  basis  of  the  law  of  sales,  than  by  again  quoting 


£31  10s.  Lord  Ellenborough  here  said: 
"The  parties  agreed  to  consider  the 
brother's  horse  sis  fourteen  guineas  in 
their  mode  of  reckoning  the  payment  for 
the  defendant's  horse;  but  still  the  consid- 
eration for  the  latter  was  thirtj'  guineas, 
and  the  defendant  received  thirty  guineas 
ill  money  and  value."  Ihit  where  money 
is  lent  by  a  che(iue  upon  a  banker  without 
a  previous  agie(,'nient  to  consider  the 
chc(iue  as  money,  it  is  no  loan,  so  as  to 
constitute  usury,  till  cash  is  actually  re- 
ceived. Urook  V.  Jliddleton,  1  Campb. 
445  ;  Borrodaile  v.  Middleton,  2  Caniiib. 
63.  In  Barbe  v.  I'arker,  1.  11.  Blk.  287, 
the  distinction  is  taken  that  where  part 
of  a  contract  for  goods  is  to  be  jiaid  for  in 
other  goods,  the  party  shall  not  be  per- 
mitted to  recover  the  whole  in  money  by 
saying  the  other  goods  were  mone)'  ;  but 
where  there  is  a  contract  for  the  loan  of 
money,  and  part  of  it  is  given  in  goods 
which  are  taken  as  money,  the  party  giv- 
ing them  shall  not  be  permitted  to  deny 
that  the  contract  was  for  money,  or  deny 
that  the  contract  was  y)roved  by  such  evi- 
dence. SeeCudlijuj.  Hundle,  Oarth.202; 
Bristow  V.  Wright,  Doug.  665,  note  a; 
King  V.  Pippet,  1  T.  I{.  235;  Carlisle  v. 
Trears,  Cowp.  671.  As  stated  by  us  in 
the  text,  the  dilfcrence  between  money 
and  goods  treated  as  money  is  little  more 
than  a  matter  of  pleading,  as  far  as  the 
legal  etfect  is  concerned.  Thus,  in  Camp 
bi'U  V.  Sewell,  1  (.'h.  609,  611,  on  the  doc- 
trine that  in  an  action  for  goods  sold  and 
delivered  which  are  to  bo  paiil  for  part  in 
money  and  part  in  other  goods,  the  plain- 
tiir  must  declare  upon  the  special  contract, 
bi'cause  he  cannot  separate  the  one  from 
the  other  and  go  for  the  value  of  the 
goods  generally,  it  was  held  that  the  same 
lirinciple  applied  to  a  promise  to  pay  for 
goods  sold  part  in  cash  and  part  by  bills 
of  exchange.  See  further,  I.Iussen  v. 
Price,  4  Kiist,  147  ;  Iloskynsf.  Dnperoj*,  9 
Kast,  408,  5111  ;  Nickson  v.  Jessom',  2 
Stark.  227;  Hi.kling  v.  Hardey,  7  Taunt. 
312;  Lee  v.  Uidwni,  6  Taunt.  188.  In 
Sheldon  v.  Cox.  3  B.  &  C.  420,  A.  agreed 
to  give  a  horse  warianted  sound  in  cic- 
chanije  for  a  hor.sc  of  B.  and  a  sum  of 
miiiioy.  The  horses  were  exchanged,  but 
1).  rufiised  to  ]iay  the  money,  pretending 
tliiit  A.'s  horse  was  unsound.  It  was  held 
that  it  might  be  rei'overed  on  an  iiuhhitn- 
tti.i  count  for  '..orses  sufd  and  delivered. 
M'JH're  by  the  terms  of  a  contract  a  .ser- 
vice to  be  ]ierformed  by  A.  for  B.  is  to  bo 
]'i>id  for  in  goods,  A.  cannot  declare  in 
debt  for  the  value  of  the  service,  but  must 
sue  on  the  special  contract.     But  if  B.  by 


his  own  act  render  the  delivery  of  tho 
goods  ini)iossible,  A.  may  sue  in  debt  for 
the  value  of  the  service,  as  he  can  do  if 
B.  allow  the  goods  to  be  sold  under  an  ex- 
ecution against  him.  Keys  v.  Harwood, 
2  C.  B.  005.  See  Baines  v.  Payne,  1  Ch. 
PI.  357;  Sir  Anthony  Jlaine's  Case,  5  Co. 
20,  and,  in  error,  Co.  Eiit.  244.  In  Har- 
rison V.  Luke,  14  M.  &  W.  139,  where 
there  was  an  agreement  to  exchange  goods 
for  goods,  and  i)art  of  the  goods  on  one 
side  was  not  delivered,  it  was  lield  that 
the  action  must  be  on  the  special  contract. 
But  upon  an  agreement  between  two  tra- 
ders  to  supply  each  other,  on  the  footing 
of  goods  for  goods  ;  after  a  balance  is 
struck  between  them,  such  balance  is  re- 
coverable in  money,  where  there  is  evidence 
of  an  agreement  that  the  balance  shall  be 
paid  in  goods.  Ingram  v.  Shiiley,  1 
Stark.  185.  And  see  Carey  v.  Pyke,  10 
A.  &  E.  512.  And  in  Forsyth  v.  Jervis,  1 
Stark.  437,  where  B.  agreed  to  purchase 
of  A.  a  gun  for  the  sum  of  forty-five 
guinea.s,  but  it  was  stipulated  that  A. 
should  take  a  gun  of  l?.'s,  valued  at  thirty 
guineas,  in  part  payment ;  B.  having  re- 
fused to  deliver  his  gun  and  complete  the 
contract.  Lord  Ellenborough  hehl,  that 
since  the  contract  was  for  the  .sale  of 
goods  to  be  in  part  paid  for  by  the  delivery 
of  goods  of  a  .stipulated  value,  u|ion  tho 
refusal  of  the  purchaser  to  jiay  for  them  in 
that  mode,  a  contract  resulted  to  pay  for 
them  in  money. 

The  25th  section  of  the  English  Com- 
panics'  Act,  1867,  provides  that  "  Every 
share  in  any  comiiany  shall  be  deemed  and 
taken  to  have  been  issued,  and  to  be  held, 
subject  to  the  payment  of  the  whole 
amount  theieof  in  cash,  unless  the  same 
shall  have  been  otherwise  determineil  by  a 
contract  duly  made  in  writing,  and  filed 
with  the  registrar  ot  joint  stock  companies 
at  or  before  the  issue  of  such  shares."  In 
III  re  Liniehouse  Works  Co.,  Coate.s's 
Case,  L.  U.  17  Eq.  169,  it  was  claimed, 
but  not  establislied,  that  the  necessary 
instrument  under  the  Act  had  been  tiled  to 
.sust.iin  a  payment  for  .shares  which  was 
not  literally  in  oa.sh.  Having  failed  in 
that,  it  was  then  claimed,  under  the  fol- 
lowing facts,  that  the  payment  for  the 
shares  met  the  reijuiri'iiiciits  (if  the  Act. 
The  memorandum  of  association  of  the 
eompanj',  formed  for  tlie  pui]iose  of  pur- 
chasing and  carrying  on  the  business  of 
C. ,  was  subscribed  by  him  for  2,5o(i  shares, 
which  were  of  £1  each.  It  was  also  sub- 
scribed by  other  jicrsn-.s,  by  which  the 
number  taken  amounted  to  6,265,  out  of  a 
total   capital  of  7,500   shares  ;    and    the 


■  ri 


-  i     i- 


li 


i 


m 


10 


COMMENTARIES  ON  SALES. 


[book  I. 


from  a  learned  American  judge,*  whose  judgments  are  always 
worthy  of  the  most  careful  consideration.  Says  Mr.  Justice 
Bigelow,  in  questioning  whether  there  can  be  any  doubt  whether 
an  exchange  can  be  deemed  a  sale  at  common  law :  "  The  dis- 
tinction between  a  sale  and  exchange  of  property  is  rather  one  of 
shadow  than  of  substance.  In  both  cases  the  title  to  property  is 
absolutely  transferred,  and  t'.e  same  rules  of  law  are  applicable 
to  the  transaction,  whether  the  consideration  of  the  contract  is 
money  or  by  way  of  barter.  It  can  make  no  essential  difference 
in  the  rights  and  obligations  of  parties,  that  goods  and  merchan- 
dise are  transferred  and  paid  for  by  other  goods  and  merchandise 
instead  of  by  money,  which  is  but  the  representative  of  value  or 
property."''* 


company  could  only  issue  fresh  shares  by 
special  resolution.  The  articles  of  associa- 
tion stated  that  an  agreement  hail  been 
prepared  between  C.  and  the  company  for 
the  sale  of  the  Inisiness  to  the  latter  for 
£5,000,  of  which  one-half  was  to  be  fully 
paid-up  sliares  of  the  company.  This 
agreement  was  executed  shortly  after  tlie 
registration  of  the  memorandum  and  arti- 
cles of  a.ssociation,  and  was  filed  with 
the  registrar  of  joint-stock  companies. 
As  between  C.  and  the  company,  the 
sliares  for  which  he  signed  the  memoran- 
dum were  treated  as  being  the  fully  paid- 
up  sliares  wliich  ho  took  as  part  of  the 
l)urchasc-moiiey,  and  he  was  debited  in 
the  books  witli  £2,.'J00  due  on  the  shares, 
and  credited  with  £.5,000  as  the  price  of 
the  business.  The  company  having  gone 
into  liquidation,  it  was  .sought  to  place 
C.'s  name  on  the  list  of  contributors  for 
the  2,500  shares.  Tlie  court  thus  deals 
witli  the  question.  JIalins,  V.  C,  says  : 
"But,  then,  it  is  argued  that,  assuming 
that  he  is  bound  to  pay  for  these  .sliares, 
in  j)oint  of  fact  he  has  done  so.  But  to 
this  it  is  replied,  that  all  the  cases  where 
payment  'in  meal  or  malt,'  as  it  is  called, 
has  been  hekl  to  b(!  good  payment,  were 
deciiled  with  "efercnce  to  companies  to 
which  the  Act  of  1867  did  not  apply,  and 
that  what  might  have  been  a  good  pay- 
ment formerly  may  not  bo  such  now.  I 
confess  1  do  not  so  understand  the  Act.  I 
quite  see  tlio  stringency  of  the  provisions 
with  regard  to  the  liability  on  shares  sub- 
scrilx'd  for  ;  but  I  do  not  understand  that 
the  Act  of  1867  has  made  any  alteration 
whatever  with  regard  to  what  shall  be 
good  payment  for  shares  which  have  been 
admittedly  subscribed  for.  If  a  man  sub- 
scribes, as  in  this  case  Mr.  Coates  did,  for 
2,500  shares,  he  thereby  incurs  the  liabil- 
ity to  pay  .some  sum  of  money,  say 
£2,500  ;  and  if  in  payment  of  this  sum 
he  hands  over  to  the  company  goods  which 


they  wanteil  for  the  purpose  of  their  busi- 
ness, the  validity  of  the  transaction  would 
not  bo  alfected  by  the  Act  of  1867;  and  I 
think  no  case  has  occurred  in  which  it  has 
been  held  that  it  would  not  be  considered 
as  payment ;  and  I  taki?  it  to  be  perfectly 
clear,  from  all  the  authorities  cited,  that 
payment  may  be  made  otherwise  than  by 
cash."  And  it  was  held  that  C.  was  enti- 
tled to  treat  the  shares  for  which  he  sub- 
scribed the  memorandum  as  the  same 
shares  as  those  for  wliich  he  sold  his  busi- 
ness, anil  that  the  shares  were  jiaid  for  in 
ca.sli  within  the  meaning  of  the  25th  sec- 
tion of  the  Act  of  18(i7.  See  Fothergill's 
Case,  L.  R.  8  Cli.  270;  Spargo's  Case,  L. 
11.  8  Ch.  407;  Kvans's  Case,  L.  R.  2  Ch. 
427;  Dent's  Case,  L.  H.  8  Ch.  768;  May- 
nard's  Case,  L.  R.  9  Ch.  60  ;  In  re  Baglan 
Hall  Collierv  Co.,  L.  R.  5  Ch.  346; 
Schroder's  Case,  J..  R.  11  Eq.  131;  Cle- 
laiid's  Case,  L.  It.  14  Kq.  387;  Sichell's 
Ca.se,  L.  R.  3  Ch.  119  ;  Jones's  Ca.se,  L.  R. 
6  Cli.  48.  In  two  ca.ses  very  similar  to 
Coates's  case  {In  re.  Denton  Colliery  Com- 
pany, Ex  piirte  Shaw,  L.  1!.18  Kq.  16;  and 
Lire  New  Zealand  Kapaiiga  Gold  Mining 
Co.,  Ex  parte  Thomas,  Ibid.,  17  n.),  pur- 
chases of  pro])erty  by  the  company,  payable 
in  shares,  were  not  treated  as  jiaymeiits  in 
cash  ;  but  sluires  were  allowed  to  be  issued 
after  the  registration  of  the  contracts. 

1  Bigelow,  J.,  ill  Commonwealth  v. 
Clark,  80  Mass.  367,   371. 

'■'  In  this  case  it  was  hold,  that  an  ex- 
change of  intoxicating  liquor  by  a  distil- 
ler, for  grain  from  which  to  distil  such 
liquor,  is  a  sale  within  the  meaning  of  tlie 
statutes  of  Ma.ssachusotts,  1855,  c.  215, 
§§  15,  17,  wliether  the  liijuor  was  deliv- 
ered at  the  time  of  receiving  the  grain  or 
afterwards.  By  this  statute  it  was  en- 
acted that  if  any  jierson  "shall  directly  or 
indirectly,  on  any  pretence  or  by  any  de- 
vice, sell,  or  in  con.sideration  of  the  pur- 
chase of  any  other  property,  give  to  any 


*r 


PART  I.] 


WHAT  IS  A   SALE? 


11 


Resulting  from  this  view  of  the  law  it  follows,  firsts  that  a 
sale  of  personal  property  is  not  less  such  a  sale  because  a  part 


person  any  si)iritiiou3  or  intoxicating 
liquor,"  liL'  sliall  bo  subject  to  the  peii- 
iiltit's  jiroviiliMl  in  the  act.  The  court 
Iiere  licld,  that  if  there  can  be  any  doubt 
on  the  ([ucstion  whether  an  exchange  can 
be  ilcenied  a  Side  at  common  law,  it  is 
quite  dear  that  no  such  doubt  can  exist 
under  the  provisions  of  this  statute;  that 
tlie  intention  of  the  legislature  by  the  pro- 
vision  was  manifestly  to  cover  every  case 
of  the  transfer  of  intoxicating  li(]uors  for 
value,  in  whatever  foi'm  the  consideration 
for  such  transfer  niigiit  be  given  or  paid. 
Jn  Howard  v.  lliinis,  90  Mass.  297,  the 
same  question  came  up  again,  where  it 
was  decided  that  no  action  lies  on  a  war- 
ranty given  upon  the  sale  of  a  horse,  the 
price  of  which  was  paid  in  spirituous 
li(piors,  which  the  purchaser  could  not 
legally  sell.  It  was  claimed  that  the 
only  offences  specified  in  the  act  were  a 
sale  and  a  gift,  and  that  a  sale  is  a  transfer 
of  prop(!rty  in  consideration  of  a  sum  of 
money  to  be  paid  for  it,  and  is  different 
from  an  exchange  or  barter.  But  the 
court  refused  to  sustain  this  distinction. 
Bigelow,  C.  J.,  in  delivering  the  judgment 
of  the  court,  said:  "The  fatal  defect  in 
the  argument  of  the  learned  counsel  for 
the  plaintilf  is,  that  it  leaves  wholly  out 
of  view  the  clear  and  manifest  purpose  of 
the  legislature  in  enacting  the  provisions 
of  the  general  statutes  regulating  the 
niaiuifacture  and  prohibiting  the  traflic 
in  spirituous  and  intoxicating  liquors. 
If,  in  giving  a  construction  to  the  pro- 
visions of  this  statute,  we  could  confine 
oureelvcs  to  the  strict  technical  definition 
of  the  word  '  sell,'  and  interpret  it  only  as 
meaning  a  transfer  of  property  in  consider- 
ation of  a  price  paid  therefor  in  money, 
we  sliouM  have  no  difficulty  in  arriving 
at  tiie  conclusion  for  which  the  plaintiff 
contends.  But  we  cannot  do  this  unless 
we  violate  one  of  the  cardinal  rules  of  in- 
terpretation, and,  instead  of  construing 
and  applying  tlie  words  of  the  statute  to 
fulfd  tile  intent  of  the  legislature,  entirely 
disregard  and  destroy  that  intent  by  a 
narrow  and  restricted  interpretation  of  the 
words.  ...  It  is  too  obvious  to  admit  of 
debate  that  the  main  purpose  would  fail 
of  accomplishment  if  intoxicating  liquors 
coulil  be  freely  obtained  without  restraint 
by  biuter  or  exchange  of  other  property 
therefor.  The  jirohibition  of  sales,  in  the 
technical  sense  of  that  word,  would  be  of 
little  etl'iM't  if  the  trade  were  left  open  to 
be  carrieil  on  in  other  modes.  Indeed, 
the  construction  for  which  the  plaintiff 
contends  would  amount  to  a  virtual  repeal 
of  the  statute  in  its  practical  operation,  as 


a  means  of  checking  and  restraining  the 
evils  which  it  was  intended  to  jirevent. 
In  a  general  and  poimlar  sense,  the  sale 
of  an  article  signilies  the  transfer  of  prop- 
erty from  one  person  to  another  for  a  con- 
sideration of  value,  without  reference  to 
the  particular  mode  in  which  the  con- 
sideration is  jiaid.  It  was  in  tliis  sense 
that  the  legislature  used  the  word,  and 
not  in  the  technical  and  narrow  sense 
of  a  transl'er  for  a  price  jiaid  or  agreed 
to  be  ])iud  [this  is  an  inqirovement  on 
Benjamin's"  prumiscd  "]  in  money.  The 
legal  distinction  between  a  sale  and  an 
exchange  is  a  merely  artificial  one.  The 
rules  of  law  are  the  same  as  applied  to 
both  transactions.  Practically  there  is  no 
dillerence  between  them.  To  make  such 
a  refinement  the  turning  point  of  the  in- 
terpretation of  a  statute,  contrary  to  the 
plain  intent  of  the  legislature,  would  be  a 
violation  of  all  sound  rules  of  construc- 
tion." In  accordance  with  the  holding  in 
these  cases,  it  was  held,  in  Mason  v.  Loth- 
rop,  73  Mass.  354,  that  a  delivery  and  re- 
ceipt of  intoxicating  liepiors,  as  jiayment 
for  a  service  performed,  is  a  sale,  within 
the  meaning  of  the  statutes  prohibiting 
the  unlawful  sale  of  such  i" quors.  In  ac- 
cordance with  the  holding  in  these  cases 
is  the  view  expressed  by  Ilolroyd,  J.,  in 
Dcnn  V.  Diamond,  4  H.  &  C.  248,  24G,  on 
the  question  of  the  meaning  of  "sale"  in 
the  English  act,  48  Geo.  3,  c.  19  ;  where 
he  says,  "  Upon  the  true  construction 
of  this  and  all  similar  statutes,  I  am  of 
ojtinion  that  the  transaction  in  question 
was  not  a  sale  of  lands  within  the  mean- 
ing of  the  legislature.  A  sale  imports  a 
quid  pro  quo,  in  some  way  or  other,  eiiur- 
ing  to  the  benefit  of  the  seller."  Tliere  is 
a  case  in  Indiana  (Stevenson  v.  The  State, 
65  Ind.  409),  where  it  is  held  that  it  is 
necessary,  to  prove  the  charge  of  uidnw- 
fully  selling  liqU(n\s,  that  tJ(C  sale  was 
maiie  expressly  or  impliedly  for  cash,  but 
might  have  been  on  credit.  "A  sale  on 
credit  might  be  within  the  statute."  The 
court  itself,  by  its  use  of  the  word  "sale," 
implies  that  there  might  be  "a  sale" 
which  was  not  expressly  or  impliedly  for 
cash,  paid  or  to  be  jiaid.  As  far  as  this 
case  can  be  said  to  decide  that  a  transac- 
tion is  not  a  sale,  within  the  meaning  of 
the  statutes,  because  another  consideration 
than  money  has  been  given  (uv  the  liipior, 
wc  think  the  Massachusetts  decisions  are 
the  sounder.  See  infra,  where  wt'  consider 
this  question  further  in  connection  with 
our  discussion  of  the  statute  of  frauds. 

But  even  with  reference  to  mere  mat* 
ters  of  pleading,  the  cases  are  not  all  in 


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12 


COMMENTARIES   ON   SALES. 


[book  I. 


wi 


mni 


'  '.1 


or  the  whole  of  the  price  or  consideration  of  such  sale  is  in 
other  specific  goods,  and,  that,  to  such  a  sale  the  law  relating  to 


:'M 


harmony  on  tin-  jioint.  In  Clark  v.  Fair- 
child,  22  Wcml.  C)7ii,  where  juasoiial  ju'op- 
ertj',  ('.  (J;  a  lioat,  vsas  solil  under  a  .sjiecial 
contract,  containing  siu'cilic  iirovisions  as 
to  the  time  and  mode  of  jjayment,  and  as 
to  the  vendor  furni.shing  the  jmrehaser 
with  tYeii,'ht,  it  was  held,  that  the  iirop- 
orty  havint,'  bt^cn  <lelivered  to  and  nsed  by 
tlie  i)urchaser,  and  the  i>laiiitill"  having 
perfoinicd  all  that  he  had  stipulated  to 
do,  an  action  mii,dit  be  sustained  on  a 
general  uidibiUitus  Kssarnpsit  for  the  price 
of  the  luopcrty,  ami  tliat  it  was  not  m.'cea- 
sary  to  declare  spei'ially.  So  in  Way  v. 
WakefK^ld,  7  Vt.  223,  it  was  held,  that 
when  i^oods  are  ])urcliaseil,  and  the  pur- 
chaser reserves  to  himself  the  right  to  pay 
in  certain  pro])erty,  lumber,  produce,  etc., 
lie  may  pay  within  the  time  without  de- 
nian<l  or  designation;  and  if  not  paid,  the 
creditor  uiay  sustain  an  action  on  "  book 
or  assumpsit"  without  demand.  The 
court  ill  so  di'ciding  thus  dealt  with  the 
((Uestion:  "It  is  next  insisted  that  as 
there  was  a  special  or  express  contract  in 
relation  to  the  mode  of  payment  for  this 
harness,  the  plaintilF  cannot  recover  on 
the  general  counts  in  his  declaration. 
There  has  formerly  been  much  contro- 
versy and  contradictory  decision  on  tliis 
subject;  but  as  the  law  is  now  understood, 
the  general  counts  are  more  extensively 
used  than  formerly,  both  in  Kngland  and 
this  country.  It  was  formerly  consiilered, 
that  wherever  there  was  an  express  or  spe- 
cial ])romise,  all  implied  assumpsits  were 
meiged  and  superseded,  and  could  never 
after  be  resorted  to.  Such  is  not  now  the 
doctrine.  Wiiunever  there  are  goods  sold, 
work  ilone,  or  money  passed,  whatever 
stipulations  may  have  been  nindc  about 
the  price,  or  inodo  or  time  of  payment,  if 
the  terms  have  trans[)ired  so  that  money 
has  lii'ciime  due,  the  general  count  may  bo 
sustained,  jjiit  if  the  contract  be  execu- 
tory and  subsisting,  and  the  action  be  for 
the  breach,  for  the  recovery  of  damages, 
then  the  count  must  be  special."  Tiiis  was 
quoted  and  approved  by  the  court  in  Clark 
V.  Fairchild,  22  Wend.  57(5,  .'JS4,  where  it 
is  said,  with  reference  to  an  objection  on 
this  point,  wliicii  is  "  merely  technical,"  — 
"  What  is  considered  by  parties  as  eijniva- 
hnt  to  cash,  in  other  words,  as  a  mode  of 
payment,  is  cash,  and  may  be  so  called  in 
pleading.  So  in  Brown  v.  Fry,  S(dw. 
N.  r.  6.58,  the  plaintiff  averred  he  had 
bought  of  the  defendant  a  horse  for  so 
much  money.  Proof  that  the  ])laintitF 
had  given  a  mare  and  money,  which  the 
defendant  had  receipted  for  so  much,  held 
no  variance.      Graham,   Baron,  said   the 


defendant  had  taken  the  mare  as  money. 
See  2  Leigh's  N.  P.  1509.  Again,  wherein 
do  the  cases  dili'ur  which  say  a  i)aynient 
in  bank  notes  is  a  jviyment  in  mouev  i 
1  Selw.  N.  P.  104.  Tliey  are  i)ut  on  the 
same  ground,  viz.,  being  received  as 
money.  Whatever  is  agreed  on  as  a  me- 
dium of  jiayment  is  money  in  substance 
and  elfect ;  and  what  rule  of  evidence  is 
better  established  than  that  the  substance 
of  the  issue  only  need  be  proved  ?  It  is 
the  same  thing  where  goods  are  sold  and 
delivered,  to  be  paid  for  in  labor  'r  goods 
at  another  day.  The  latter  are  agreed  on 
to  answer  as  ciish  ;  and  if  not  paid,  why 
not  declare  in  the  general  form  as  on  au 
executed  special  contract  answerable  in 
money  ?  I  venture  to  sav  that  Way  v. 
Wakefiehl,  7  Vt.  223,  is  at  "this  day  law  at 
Westminster  Hall;  and  it  will  be  adopted, 
if  Knglish  judges  ever  come  to  consider  it 
in  the  same  spirit  as  they  considered  other 
American  decisions  lately  in  Beverley  v. 
Lincoln,  6  A.  &  K.  82l>."  Way  v.  Wake- 
field, 7  Vt.  223,  was  approved  and  followed 
in  Wainwright  v.  Straw,  15  Vt.  215,  in 
the  same  court.  There  a  stove  was  sold 
for  a  given  sum,  payable  in  cattle  or  grain 
at  a  future  day.  It  was  claimed  that  when 
goods  have  been  sold  and  actually  deliv- 
ereil  under  a  special  agreement,  the  gen- 
eral count  could  not  be  sustained,  unless 
till!  contract  was  to  pay  in  money,  and  the 
credit  had  expired.  1  Chit.  Pi.  338; 
Musson  V.  Price,  4  Kast,  147;  Brooke  v. 
White,  1  New  R.  330.  And  if  the  con- 
tract was  to  pay  partly  in  money,  and 
partly  in  gooils,  the  general  count  cannot 
bo  sustained,  if  the  term  of  credit  has  ex- 
pired. 1  Chit.  PI.  338.  A  fortiori,  if 
the  contract  was  to  pay  wholly  in  goods, 
and  in  the  alternative,  the  count  must  be 
special.  Pennv  v.  Porter,  2  East,  2,  and 
note  to  p.  4;  Tate  v.  Wellings,  3  T.  U.  531. 
But  the  Vermont  court  held,  that,  alter  a 
breach  of  the  contract,  a  recovery  might 
be  had  upon  a  general  count  for  goods  sold 
and  delivered.  The  court  considered  Way 
V.  Wakefield,  7  Vt.  223,  as  being  accord- 
ing to  the  current  of  Knglish  authorities, 
and  must  be  regarded  as  settling  the  law 
in  the  State.  The  .same  doctrine  was  held 
in  Porter  v.  Talcott,  1  Cow.  359,  where  we 
find  it  was  claimed,  as  we  have  stated  it 
in  the  text,  that  the  case  of  Anon.,  3  Salk. 
157,  instead  of  being  an  authority  that  a 
.sale  and  a  barter  are  essentially  iliirereiit, 
is  ri-ally  to  the  effect  that  a  sale  and  barter 
are  the  same  thing.  "Pcrmuttitio  vicinc 
est  onptioni,"  and  "in  exchanging  both 
IHirt if s  arc  buyers  and  sellers."  In  Porter 
V.  Talcott,  1  Cow.  359,  there  was  a  salo  or 


PART  I.J 


^HAT  IS  A  SALE  ? 


IS 


■xclmnge  of  one  vps^^)  f„. 
>-..=iOO°to  be  ,.ai,rrno?^s""T'''''   "'"' 
were  «,ven,    but  were     o    n..;  ,^'^/.'°'^-^ 

'I'i"^' gelatin.,  to   K^^^^^^^^^^  :'i^vny. 

to  ti>,.  r.,si,lN...    "s,^d   fo  ,  f  'r"'i  ",  **"''■■  "« 
_t'"^'>umtak«M.ths.^t,„-ii.T^-<'i- 


""•"t  is  ext.,.Mt,,'V]'«t.  where  an  amv- 

wiii  not  ,^^'.;;;;ift, ''£^'j-^....U 

foriii.'d;  biitwl,,.,)  tl,„  ''""'•^"'  >t  are  i.er- 

|.i-linK.,,,!';/t2;«»  fully  recog. 

Martin   Fit,.  ^02    aL'  "'/•«''<lon  v. 

The  case  of  Brooke  ,,   Vxm  -f  •'^-  ^-  ^39." 

goods  were  .sold  to  be  S)  t  ^''^''•^'^^■''''''■o 
was  Jield,   tiiat  no  nJi  °',^>'  «  ^H.  it 

♦f/r'  for, oods"UrSiMh ''*'■"'■■•'"■ 
"'  "'e  j,erio,l  at  w],i,h  t    '',V,'f  ""xinration 

the  ju-iiod  of  cred  t    S/./  v''/'^''*""*'""  of 
will  lie.  '""^'  "'<(<^f"('itus  amcmpsit 

t7-'''I,:lt  j-'y^  was  heh,  in  Slay- 

whore  goods  are  .dd  to  ?'•  ??V  •'2'  that 
"'•  i»  part  b/oth  r  In  .f''''"'/°''^^l'olly 
f«"danfs  hi/or  o,  ff''  "■■ ''•^' t'"'  de- 
•"""^T.  the  ae  ion  nn  '7'1  *''''"'  i" 
™"'it  on  t],e  a-'reen,en  \\-  ^'^  ^'l^^'"'"' 
"    t.and  notfo";  ,  ok"  'A""'  '"'',■'',  breach 

i>     V.    We.stervelt     fi7  \V°''''""    ^team 
This  last  ca,se  .loes'f'     ^/'z     ^^6,    450. 

"■'"■'"  there  i  a  writter"^"'''^'""  t'-'^t 
'""•'■  f'"^  tern,s„t  !'"  T^'^'^  ^'  to 
''''■'''''''''«'>  th  fa  ion,  ""*'■•?'*  govern, 
'■"•u,ts  in  7,u/Zl'Z       ""■*'"'  «^""""o. 

''."''"'  "  lu.re  L'oods  „..,f  I  IV'  ^'owever, 
^"'' to  the  .hSd  toH ''•'>' ^'''' I''''"'- 
'■''""■'led  in  lie  ,  h;  """■'•  Soo'l'^  to  be 
"otret„rned../t?,    "••■'""'  t''«s.Mvere 

f;''''ieiivereito,;iI     uT'r'"^  «''"''« -I'l 
f.'x^'leeis.onisaso    ,  '"'      ^^'«  "''"k 

""^wlnelMveSdlT-    ^he  distine- 

"f'7  goods  (..-,  -jr,'  to  'c  paid  for  in 

fioodsaretreate  b  .  ^ '  /  ""'  ««  t^^^^e 
^'-- «"'n  of  money  f  tl  e  '""■"''  "'  ■■»  ^Peei- 
»'^''*^^.«  '^.w.  i;,  // :   f^^'  "ot  delivired. 

»- thou,,  the  4;i;;^ij-^-g, 


fS^sK^^-i^'-e  given  r,r 

(ai.other  of  the  States  ,  ?."  .  ^'""'I'sl'ire 
ren.ark,  en  pass,iu,['  '"''''  "''  "ould 
t«/  l-^' found  h,Sr."!"^'''«onnd  law  is 

tl'e  court,  says-  "T  Vf  '''^.""'g'uent  of 
^o""t     'uay    son.et  ,ne  '")■  "'"^  i' «'-'H'ral 
where  tin-  goods  w'"'';/';'    ""!'''tained. 
other  goods.^    Oft   L     ,       ""'  1'""'  f"''  hy 

I'laintilf. sold  the,, .^  }^^'"^-  4;J7.     The 
"^•7"ineas;.;;    '!;-'■;;  ^  gun  lor  A,.;! 
fendant  a  gun,  in"  ,,    ^'  ^''^'  "'  ""'  'le- 
P";'eofthiny  ',i    ,.l''"t,  I'">!'.'':"t.  at  the 
^"■I'l,  that  a.s  In"    w'  • ,  "''7''  •.'"'■"horough 
J'--'>'1  for  in  part  bvoth  ,     '"  "«'""'«'  ^o  bo 
;'t«ipn^.e,';,,H,n%    '',-,«;';;''%"» ^sti,,u. 
cha.ser   to  pay  r,.,.      ,         .•^'  of  the   ..up- 
"    ;-ontract'   ^e^^l'.e    '"i:.  ZJ^f    -ode, 
in  money,  and  that  tl ,"  f'  ?   ,''"'    "'«'» 
^■■•«   K'ight    be    re,'oyc,      ^T''^"^-  g"in. 
fo'- goods  .sold.     This     '""''■'■  '■'   «'u..t 
"•-"teri.stic  of  a  .sale      T  ,  ".' .  • "  .'■^■^■'T  ehar- 
«""   for  a  .si.,-ei  i,' I      ■    ''''""t'ff -^"hi  the 
"greed  to  gf^e    j    '  ^^T'*'''  *'"'   <lefendan? 
gun  for  a  .sti,,ui,  "i'';"'-   l'''>'""'Ut,  another 

^«  J'o  refused  to  .leiryer  f b'"'^'  '^'  l"'''^"- 
«'on  that  be  was  i  debt'  i    ''  ^""'  "  ''^"•'i- 

forUsprie,.a.vord    witrb       '''"''''^^ 
I    the  nuthoriti,J>     Si/,"'  p'-'-''''!  t'-ne 
^-   H.   31(0,   3()4  '^I'tehell  i:   (iilHo 

IS  taken  in  Loomis  „  u-'  •■"'"'"'  ''■'^tinetion 
C20,  528,  where  tw-)"''"''^'  -'  ^'t- 
transaction  Z,  an  e?  T'"^'"''^'''  <''"'  « 
-'Je-  Theco,;:^:,,':-^rl'i';;f;"-;'inota 
e^-press  evidence  that  ,„  .^'r'''-''''"^'' "f 
was  intended,  a  s- 1,    „     ,?':''"'-"'    only 

ferredfromth  fiSt  ,f  ,J''!''^''^''''- 
governed  by  a  fiv,",!  ,  ' '  r  "  V'"'^"  was 
!'''»grmlpriee    ,i,  ,    '''^^or  the  bor.se; 

i'l'gainorsah  '^,  r;;''""o"I'ropc; 
tl'e  ca.se  of  a  n.er,  ,  '  r  ''  ""'•'"ess  in 
<^on,nK„Iiti,.s  e  •'},,'  ''/''''f-     '^'''ere   th. 

«"I'!"«"<1  valued  ar'^'::';;""''^'-  '""  their 
fi'iuivah.ntsbj/j";,,'  '''^'I'y  >v..eiye,las 
r-ieo  of  such  pro  .  tv  !'',•  ^V^''  'o''  the 
't  cannot  now'/,"',. .."'''  i""  'ielivere,!, 

t'onofa.s.sun.pstn.v,     '""'  "''■^t  the  ac! 
';  the  same  e'wSJ:;'-''''l'orfecI.''    See 

Vt.  201.     .See  als,f;  ;'''''  '•/^''''U'S  10 

'3;  Herrick^.'Car  ,.':•,/'•!"■".  ^^  ■^^'^^ 
f;  ^Jleason,  5  \  '  ,1  't 'r'''',  ^^  •  I'inuoy 
lockwell,  4Hi,,    V''-.  'i'^'    ''O'^l^w.ll    V. 

"ethmk   the  bni,i;«     •       "• '^  ^onn.  .IS. 

"">  position,  cannot  J"l!r-'  -ntrayenes 
-pie  or  sound  aurrl^y:"^;;:!-^;;^;;^ 


*  '!  ; 


'! : 


■!■ 


11 


il 


p 


14 


COMMENTARIES  ON  SALES. 


[UOOK  I. 


1 

Hj       ; 

■wL 

MflAiiP^ 

JjH 

iwhhH  ' 

■ 

j^Hii 

1 

mm 

1 

flP 

1 

ffli 

double  sale,  in  wliich  each  of  Ihc  parties  Is  a  seller  and  buyer, 
the  law  affecting  seller  and  buyer  applies  to  each  of  the  parties  to 
the  sale,  as  it  may  affect  him,  respectively,  as  such  seller  or  l)uyer. 
In  the  large  number  of  sales  made  in  the  agricultural  portions 
of  this  country,  where  goods  are  sold  and  agricultural  produce 
is  received  as  payment,  the  effect  in  every  respect  in  law,  outside 
of  such  technicalities  as  arise  in  exceptional  cases,  is  substan- 
tially the  same  as  if  the  goods  were  sold  for  money  at  an  agreed 
price,  and  the  agricultural  produce  were  also  sold  for  money  at  an 
agreed  price.  The  fact  that  in  such  cases  the  payment  and  j'c- 
payracnt  of  the  actual  money  is  dispensed  with,  we  should  say,  on 
what  we  think  is  sound  principle,  sustained  by  the  highest  author- 
ity, renders  the  transactions  in  effect  no  less  sales  than  if,  in  the 
cases  namod,  the  medium  of  exchange,  money,  were  employed  ill 
effecting  the  exchange,  or  its  erpiivalent,  the  double  sale,  of  the 
goods  on  the  one  hand  and  the  agricultural  i)roduce  on  the 
other.^ 


so,  whore  a  price  Ims  been  fixed  by  the  pnr- 
ties,  so  us  to  put  it  on  a  money  basis  (for 
whicli  only,  in  assiiniiisit,  a  judgment  can 
be  rendered),  it  is  dilliuult  to  sen,  on  prin- 
ciple, why,  where  a  price  has  not  been 
fixed,  a  qnnnfum  videhat  count  in  assump- 
sit would  not  be  sustained;  in  which  case 
the  measure  of  damages  would  not  be,  as 
usual,  the  value  of  the  goods  sold,  but 
that  of  those  to  lie  deliv(!n'd.  On  this 
view  the  reasoning  and  holding  in  Way  v. 
Wakefield,  7  Vt.  223,  and  in  Clark  v. 
Fairchild,  22  Wend.  576,  would  accord 
with  a  succession  of  well-decided  cases. 
Where,  as  has  been  intimated,  the  contract 
remains  executory,  the  declaration  would 
have  to  be  on  the  special  contract,  and  the 
measure  of  damages  would  be  the  loss 
caused  by  the  unexecuted  contract.  Rob- 
ertson V.  Lynch,  18  Johns.  451  ;  Ray- 
mond V.  Bearnard,  12  Johns.  274;  Jen- 
nings V.  Camp,  13  Johns.  94;  Clark  v. 
Smith,  14  Johns.  326  ;  Dubois  v.  Del.  & 
Hudson  Canal  Co. ,  4  Wend.  289  ;  Tal- 
vert).  West,  Ilolt,  178  ;  Leigli  v.  Patterson, 

5  Taunt.  540  ;   Gainsford  i'.  Carroll,  2  B. 

6  (;.  624  ;  Shaw  v.  Xudd,  8  Pick.  9.  See 
also  lirooks  v.  Hubbard,  3  Conn.  58  ; 
Jones  V.  Gilbert,  13  Conn.  51G;  iJush  v. 
Canfield,  2  Conn.  485;  Wells  v.  Abernethy, 
5  Conn.  222  ;  Mc.Mpin  v.  Lee,  12  Conn. 
129;  Gregory  v.  McDowell,  8  Wend.  435; 
Way  V.  Dox,  9  Wend.  129;  West  v.  Beach, 
3  Cow.  82  ;  (/lark  v.  Pinnny,  7  Cow.  681; 
Pinney  v.  Gleason,  5  Wend.  393  ;  Meason 
V.  Phillips,  Addis.  34()  ;  Kdgar  v.  Bois,  11 
S.  &  K.  445,  where  goods  purchased  were 
made  payable  in  other  goods  at  a  specified 
price,  and  it  was  licld  where  the  payment 
was  not  made,  the  measure  of  damages  was 


the  price  specified,  and  not  the  value  of 
the  goods  wiuch  was  to  be  paid,  on  the  day 
of  payment. 

'  The  strictly  technical  distinction  be- 
tween a  sale  and  a  barter  or  exchange  is 
very  seldom  regarded.  Thus  it  has  been 
repeatedly  held,  in  terms,  where  the  trans- 
action is  umiuestionably  one  of  barter  or 
exchange  of  goods  for  other  goods,  —  in 
many  of  such  cases  not  even  a  price,  on  the 
basis  of  an  exact  valuation  of  the  goods 
exchanged,  being  fixed  or  stated,  — that 
the  transaction  is  a  sale,  when,  techni- 
cally, it  is  only  a  barter  or  exidiange. 
Thus,  in  Powder  Co.  v.  Burkhardt,  97 
U.  S.  110,  116,  agreeing  with  such  cases 
as  Pierce  I'.  Schenck,  3  Hill,  28;  Norton 
V.  Woodruff,  2  N.  Y.  153 ;  Jlallory  v. 
Willis,  4  N.  Y.  76;  and  Foster  v.  Petti- 
biuie,  7  N.  Y.  433,  as  a  correct  exposition 
of  tlie  law,  it  was  held  that  where  logs 
are  delivered  to  be  sawed  into  boards,  or 
leather  to  be  made  into  shoes,  rags  into 
paper,  grapes  into  wine,  wheat  into  flour, 
if  the  jiroduct  of  the  identical  articles  is 
to  be  returned  to  the  original  owner  in  a 
new  form,  it  is  not  a  sale,  and  the  title 
never  vests  in  tlie  manufacturer.  But  if, 
on  the  other  hand,  the  nianufaeturcr  is 
not  bound  to  return  the  same  wlieat  or 
flour  or  paper,  but  may  deliver  any  otiier 
of  equal  value,  it  is  a  sale  or  loan,  and  the 
title  to  the  thing  delivered  vests  in  the 
manufacturer.  See  South  Australian  Ins. 
Co.  V.  Randall,  L.  R.  3  P.  C.  101 ;  Barker 
V.  Roberts,  8  Me.  101;  Smith  v.  Jones,  7 
Cowen,  328;  Hyde  v.  Cookson,  21  Barb. 
92;  Kingv.  Humphreys,  10  Pa.  St.  217; 
Stevens  «.  Briggs,  5  Pick.  177;  Denny  v. 
Cabot,  6  Mete.  82;  Judson  v.  Adams,  8 


PART  I.J 


^HAT  IS  A   SALE  ? 


15 


Among  the  very  manv  so?  *^ 

--,  is  not  paid,  i,  o„c  VetoU^ctr:'""  "''""^  --■> 

^)''«on  I..  Coo,,,,  10  \  ^i"'-''''^'  35^; 
J^«;non,  106  j„,  ^'  o"-'-.  200;  Ljo,,  v. 
f02;  l."ichani:;,„'"\')/;;,«to..t    2  111.  i  ,; 

*!l!^''^  is  no  o,  "-  «';;Iou.n  that  «7.ere 
ciho  thing  delivf  r^y^;:'"''^  tl-o  .spe- 
a<:  liberty  to  ret.i.,,  1'.    !i     *''"'  ''•-■••dvcr  is 

debtor  to  make  a  rc^,,  .f  "^'    "'  '"'«"",e.s  u 

-  property  i.s  cVu,^^^^ 
iiut  where  jroodx  «,.,.        •    .  'i-  is  a  sa  e  " 

for  sale,  wirolrto'  et';;',lT  '1  -^^  •■"*  'i'^ 
^^«fh,  lumber,  co„ntrv  ^  ^V'"  I"'"''1><'I 
otber  articles'  of  "^  /e  T"^-'")  "'^  "W 
goods,  this  does  mi  i'n  ''■"''  '"■•  '''« 
a  sale  of  ^oo.ls   hi'  tL,T''-  'T'^'^^^^^' 

-^      —  "y  mc  i.riii,.ij,a    to  his 

aimer.    9  ^t.:  .,  .      "'*' 


Ciisb.  556;  Sclieiii'l-  1.   e 

37;   Mansiidd 'r  c'o  Vf,:  "?'I',/3  ^■•".V. 

-'that  the  ,.oodsriivlL-t/'^*''« 
t  fi  were  charged  to  the  ,v  ,f  ''  '''"'"- 
tbem,  and  passed  in »,!■''"*>'  '•^^^'iviiiL' 
•sionandun.orhisn  .^  1''  '"'^""'  I'os-se.s" 

t''^'V"i«i'tfctdtt£;;;:';^'"'''^'ou«h 

f?"ods  intended  to  bo  sm.r      ""'■'"-''"■•'  of 
''''V?«'''^'l<itoan2l;'';';   t"the,.lain. 
goo,ls  delivered;  dil  "^    ,  r    ^  *','"  °'  'ho 
meclmnieal    tra'nS"^,;'""',.''"'  .■^'■"«'" 
«peei  ,c    .set   of   lo,r,   t"    1  'b'I'veimg    a 
boards,    or  a   specTll    L,^  ^.*"',"''d    i"to 
ilour.     So,  in  I  ,    '•"-     ^t  ,?.*,  ^vheat   into 
420,   it   was   lu       ';;;;   '■  )^  ''son,  3  Dill. 
'•«'i-.;od  to  .me  1,  '  ; ,  -;.-'-;  «oods  are 
somption,  an,l  where  lo  \       "f  °''  ™"- 
'•''t'V"  'be  identiea    ,     •„  '  "°     ^°'""i  to 
"'■altere<l  shai.e    b  f  I        '•-  '"  't«  "'iginal 
ki'^landv^due/it  Vr'''-''-V-<'f.tbosame 
pa-s^'S  and  the  reeeh-e,.  I,    ''''      *''«  title 
'o''  tbe  stipulated  ret    ,       t,  •'"^'^  '''  ^''''I'tor 
^^■''f'-e  wheat  was  de   "e  "ed  t'  ""'V'''^ 
under   a   custom    tlmt   VL      ']"  •"''-'^'"to'' 
brought  in  was  eifh.       .     ^'''^'"t   when 
f"r  at  the  tine  j,  :"'''''''^-^'."'  '''n'l  paid 

plevator,  or  re  ei^d  v  T^''''^T  "^  the 
Issued  therefor-  ,  „ '^  "'""  '"""l  receints 
tl'at  when  th  /  whe7f  '  "'' '^"•^*"''' J'<'i'l'! 

'obler  selected  his  o  ,  ,  ,V'  ^''''''''  tbe 
"'g  the  receipt  and  1'  .'  /°''  I^''^-"^'"'- 
"'aiket  price  of  to  ''" '■'""ied  either  the 
;'-l"-.tity^^JJ  ,[i^?-°"tbatday.or 
'or  in  the  receint  Th.?  °'. '''e  #?rain  called 
tbe  elevator  wS  mive.f  "■?,'"  '^ ^^'^'l  «» 
«"d  was  shippc"    "ml  1  '"',"'''^'''8''''''". 

proprietors  of 'thee  eiti't?  "'>  ""^ 
?,i'«  transaction  w^a.  1 "  .1  /i""'  ''^^t'""- 
:i  S'''Je,"  the  title  to  hi  °  ''""°""t  to 
'^'m  at  the  ele  '  tor  ?''*''""  »"  its  re- 
Prietors  of  the  el  "'f'"'"/^  ^°  tbe  pro- 

Carb.sl,.\s  mill  joo  I,;!,,!  r  *',  '''"^''-'d  in 
.t'-r'"s  that  the  latt.'r  V  .°  •;'''''''t,  "PO" 
]t  with  his  own  CO  ,v,  :  •  ;'    ^'^'''^y  to  mi.v 

!«  pleased,  sell  "hTE/VM"  ""'■'•  "•'"'" 
tbe  proceeds  to  his  ou    '  '""'  ■''I'I'ropriate 

"■er  Wallace  sai    fit    "  T\   "'"'  "^'^n- 
[•^■-•et,  from  CarlKle  the  s.    '"''  '''  '•'"^'t  to 
■^■'"^1.  of  wheat  o,   fl!r   •^""'  1"«ntitv,  in 
'"'.•=''   wheat   wo  ,ld   mnr""'  °'"  """>•  «" 
I"''^'"  of  wheat  per  bnsfr-  °'"  *''«   tben 
was  held  that     ,1       ?.,  '  '"  nioney.     It 
r''^'^t  nor  the- „',/-'   1-  the   ide'ntical 
^  returned,  and   tl,„      .    '^''°'"  't  was  to 
jnixed  with  that  nrr    r'f'''*  '''^^  to   be 
"•^  when  he    >lea°ed  T'"''^""'^  "«^d  by 
;«  -jogarded  a    one  'of  '','°"'S^t  "^nst 
^'arke,  21  Wend    84     ^\    ®'"^'''  ^• 
•  °* '  Hiird  f.  West,  7 


agent, 


Barnes  i,.  JUcCrea  ^V  ^'''-  ^f^-  Jn 
ti'e  plaintiffs  deSeml  '■''  ^67,  where 
,^^nowledge  that  '  S  S"  *°-  ""  ^'f' 
otber  grain,  which  vvi^.\  •  "^  "'"^'''l  with 

.f 'I  b>-b,;„^ ;;;;;' «ab,^^^ 

t'on  either  to  pay  fo,  /),„     ''.'"'  the  elec- 
or  to  deliver  tb'o  iS  f    ■   ^''""  "'  n'o"ey 
t}ty  of  g,,,in  whe    '      "•'*  r".'"P"«l  'i-'an- 
tbe  transaction,  i    l^L  fT''^ . '"  '''"«« 
"ction,  as  between    he   ,       \^'n^  ^^"^  ^'■'"«- 
'"ortff,gees,  amo.i   ted  /o  a  !  "''  ""'^  "•'« 
also   Butterfield     ""/  t°  a  sale.     And  see 
226;    Fishbaek   ..'V.^"'  r^''  '^    !'"•   St 
in,  123.     In  this   .,ff       '"'"'  33  xMinn. 
receipts  from  ^hSpiS/'^^^ 
for  <,uantitics  of  -aa      ,    ,  • '''."''■'tc-  Cole, 
from  the  banks,  b,      ^'t      , '','  ''"-'t  received 
for  advances.     Tlie  eo  ,  f        f' ,'''  «'^'^"'ity 
tbisdid  not  pass   hp  ,       •  '"  ^'"''li"ff  that 
"'  any  speei'firg    ,• /'^^/jf/'^^^l?  tbeLnks 
nnf  have  understood       1;  rV''  ^'"'^^ 
and  tacitly  assented  L      1    ^"''-'  "'""'J. 
nn<I  grind' up  this  wh  :.    "  ,"''^'''t.  "se 
«;•'     tl,e   flour.      The     ;  ^"';,''  "^'''l'  «nd 
elamied  for  the  trantL  ^Y  ''•'n    bo 

«"  demand  to  de  S  "V''/''^'/  ^"'  «■■'« 
?"«  stock  an  nniou  of  wJ  ."/""''^•''  ""t  of 
jng  jn  <iuantity  and  1.1  ?^  '-orrespond- 
in  the  receipt!  EvS''J  ,"  ^^  ""nied 
«"y  deposited  their  own  J''^  '""'  '-"^tu- 
nnder  such  eircun  tam.es  t'T*  "?/'^  '^"'e 
tbeetation  of  autt!  i' If  f ''  >' "-ds 
to  the   proposition    th.,1   -^         tins   day 

i"^-^.  iS/l,  mconsidera. 


ilVh[ 


i 


'M-l 


16 


COMMENTARIES  ON  SALES. 


[book  I. 


''■■it 


*  1  >f 


to  millions  of  dollars  where  railway  companios  buy  iron  and  other 
railway  plant,  for  which  they  pay  stock  or  bonds  at  an  agreed 


tion  of  Olio  jiouiiil  of  wool  pi:r  head  nnim- 
ally,  "said  slii'u])  to  bi!  ivturiU'd  as  f^ood 
—  ill  as  good  condition  and  mje  —  as  wiii!ii 
taken."  It  was  held  that  this  was  a  sale 
of  the  slit'cp  and  lambs  to  H.,  and  that 
H.'s  vundce  was  not  liable  in  trovur  I'or 
their  conversion.  The  same  construction 
was  ]>laced  on  the  contract  in  Carpenter  v. 
(irillin,  D  I'aige,  3lU,  where  the  contract 
was  that  cows  and  sheep  "of  iqunl  mje 
and  (piality  "  were  to  be  retiirneil  at  the 
end  of  the  term.  Iliiid  v,  AVest,  7  Cow. 
752,  is  to  tlu!  same  etl'ect.  In  .lohnson  v. 
Mcljano,  7  Hlackf.  (Ind.),  it  was  held  that 
where  two  jiersoiis  exchanged  horses,  with 
the  privilege  to  one  of  the  parties  to  re- 
turn, within  a  given  time,  the  horse  re- 
ceived by  him  in  exchange,  and  such  party 
failed  within  the  time  to  return  tlu'  horse 
so  received,  the  contract  became  absolute. 
The  party  claimed  that  he  had  been  de- 
frauded; but  the  court,  aj)iilying  to  the 
case  the  principles  governing  sales,  and 
treating  tlie  exchange  as  ii  sale,  said  : 
"There  are  many  cases  certainly  in  which 
it  has  been  iield  that  a  vendee  acipiired  no 
l)roj)erty  in  goods  obtained  un<ler  pretence 
of  a  purcliasc  brought  about  by  his  own 
fraud.  Hut  we  know  of  no  decisicni  in 
which  the  vendor  has  been  viewed  as  not 
having  parted  with  the  ownership  of  goods 
while  he  willingly  held  iii  his  own  hands 
a  valuable  consideration  received  for  them. 
On  the  contrary,  we  conceive  the  law  to  bo 
that  such  a  vendm-  is  not  at  liberty  to  treat 
the  sale  as  a  nullity  on  account  of  the 
fraud  of  the  vendee.  IJurtoii  v,  !Stewart,  3 
Wend.  236."  See  Weston  y.  Downes,  IDoug. 
23;  Power  i;.  Wells,  Cowp.  818;  Payne 
«.  Whale,  7  East,  274;  Kmauuel  v.  Dane, 
8  Canipb.  299;  Street  v.  lUav,  2  15.  &  Ad. 
456;  Gompertz  v.  Deiitcm,  1  Cr.  &  M.  207. 
The  defendant  in  Cain  v.  Weston,  26 
Wis.  100,  made  a  contract  with  the 
iilaintilf  to  sell  the  plaintilf  "  all  the 
lumber  he  should  manufacture  or  have 
manufactured"  .at  W.  in  1866,  within 
certain  maximum  and  minimum  limits 
named.  The  maximum  (piautity  not  hav- 
ing been  delivered,  in  an  action  for  the 
iion-dtdivery  of  a  (juantity  of  lumber 
alleged  to  come  within  the  contract,  the 
defendant  claimed  that  it  was  not  manu- 
factured for  liim.  Tiie  facts  showed  that 
the  defendant,  for  the  purpose  of  avoiding 
delivery  of  thi!  lumber  to  the  plaintilf, 
nominally  sold  the  logs  to  millmeu  at  W., 
he  to  take  his  pay  in  the  lumber  at  a  spe- 
cified price,  which  was  much  lower  than 
the  prevailing  price  at  W.  In  the  con- 
tract of  "sale,"  it  was  provided  that  the 
lumber  was  to  be  sawed  as  the  defendant 


might  direct,  as  far  as  the  logs  would  per- 
mit. The  court  held  that  tlie  transaction 
was  a  mere  shift  or  device  to  avoid  the 
obligation  of  his  contract  with  the  plain- 
till',  by  giving  a  new  name  to  the  manu- 
facture of  lumber  for  him ;  and  that, 
although  the  logs  were  iioiniiially  trans- 
ferred to  the  millmeii  as  tiioiigh  it  were  a 
sale,  yet  it  was  still  a  contract  lor  the  nian- 
ufacturo  of  lumber,  instead  of  a  contract 
of  .sale,  so  far  as  there  is  a  distinction  be- 
tween the  two.  The  court  also  held  as 
another  test,  that  the  transaction  Ix'tweeii 
the  defendant  ami  the  inillmeii  was  not  a 
contract  of  sale  within  the  statute  of  frauds, 
but  an  agreement  to  manufacture  the  lum- 
ber. See  Hight  v.  Uipley,  lit  Me.  137; 
Abbbot  V.  Gilchrist,  38  hh:  ?,00;  Ivlwards 
I'.  l!ailway  <."o.,  48  Me.  379;  At  water  v. 
Hough,  29  Conn.  608;  (iardner  v.  .Joy,  9 
Mete.  177;  Lamb  v.  Crafts,  12  M.dc.  353. 
Under  a  contract  in  writing,  A.  agreed 
with  the  defendant  in  Moore  r.  Holland, 
39  Me.  307,  for  a  mow  of  hay,  to  be 
paid  in  manure.  The  hay  was  to  be  de- 
fendant's until  the  maiuire  was  made  from 
the  hay,  the  tlefendant  to  have  the  manure 
for  the  hay.  The  hay  was  put  at  the  price 
of  .§6,  to  be  paid  in  manure,  which  was  to 
be  the  defendant's  as  it  was  made.  A. 
having  sold  the  manure  to  the  plaintiff, 
ill  an  action  of  trespass  against  the  de- 
fciulant  for  removing  the  manure,  the 
court  held  that  A.  did  not  become  the 
purchaser  of  the  liay  under  an  agreement 
to  pay  for  it  in  inamirc;  but  that  the  etfcct 
of  the  agreement  was  that  the  hay  was  to 
be  converted  into  manure  for  the  defend- 
ant, and  that,  though  the  jiroilnct  was 
ch.anged  in  form  from  the  original  article, 
the  title  to  the  ju'opeity  had  not  changed, 
but  remained  in  the  defendant,  as  the  ori- 
ginal owner.  Collins  v.  Foster,  3  T.  I!. 
316;  Piercer.  Schcnck,  3  Hill,  28;  Smith 
1-.  Clark,  21  Wend.  83;  null'um  v.  Merry,  3 
Mason,  478;  Barker  v.  lioberts,  8  Me.  101. 
In  Nance  v.  .Metealf,  19  ^lo.  App. 
183,  188,  the  court  said  that  while,  if  in 
the  transaction  the  consideration  be 
other  than  money,  as  the  giving  of  other 
goods  ill  exchange  for  the  thing  bought, 
it  would  constitute  a  technical  barter, 
the  legal  effect  is  generally  the  same  as  a 
sale.  And  in  runniiigham  v.  Ashbrook, 
20  Mo.  556,  "The  only  things  essential 
to  a  v.alid  sale  of  })ersonal  property  at 
common  law,  were  a  jiroper  subject,  a 
price,  and  the  consent  of  the  contracting 
parties,  and  when  these  concurred  the 
sale  w.as  comidete,  and  the  title  passed 
without  anything  more."  In  Jenkins  y. 
Eichelberger,  4  Watts,  121,  the  plaintiff 


PAHT  I.J 


^"AT  IS  A  SALE  ? 


IT 


pnco;  fhotransactinnao^  ^^ 


;''';■•■'-' ''^t.'r,six'n:.„Vh\::;';':;'-^-^'°''.'"''' 

'"  "•  r-tiini.-il  t..  tl„.  1  ,;,       ,•''''!  '"'""•■'' 
l;''''mi(rt(.,|,Mlm.t/A,  ,;''"•'''«  <•'  N<fo  tlm 

«"'"'""t .n  tl„. ,  ,j,  „,     ' '""""s-sion  a.Mi 

"'f  ^""-    ''^vas    ;,"!,?  ir '''«'''''- 

r,'""''.   n-at   the  y,;,.';'^  *"/'•.  "ml 

'•V'i'<l  .M,  nn.ler  exernZ''  •""''•('■'■t  to  |„. 
".^  <'iv,litor.s.    TJ,    ';    '^^':'',^'''''«.n-t^ 

^f'o'n  t''"^  of  ,„a  0,  ''•"'"""^'"■^'"•'l 

fyv  tl.o  owner,   w  »  1   „  ""«  ."•"•'^^''I  Uu 

J^'ther  «•)„.„  t?u,ne,|  *^"  '"'^  "^  t'-e 

>}  sal^'  and  n  bnrf.Tn/      ^^""'   '"'twoen 

i'!  ;;'•"••"•-'  '••  a"c  rn  .fk'lr^r  :'< 

7"'"'"^  '•'■^'«r,l    o  Sn,^'H"/"r  another, 

l-'-'-t  payment  ntlpSn'rf,  1'^''^"''    '" 
'■''■■' >W.     And  tl.es"nf         '  ""^  ""  ''•v- 
""»'<  the  .lisfinetio    I     ''"^' ■'"''''••  "We 
taken.     If  proper  y  "is   ,^,.^^"'*    P>'0}.erly 
•^■■'1"  whether  the  l.rieeT  t.M  "'"""^^  ^^  « 

s''on.;tr™f  «43;s' 

S'r^^v''.:ti:;rl.s^;::;r-,£-M>.iee 
(^^'-''-'^^^or'Sr'"'''"'^'^'- 

'"•'  ti.p  Vermont  SMn*"  ''^''"nt "  woul  1 
f"-o  -listinS,  ^",f,  ;■'"<'  Court  made 
''l:-r.2r,,yi;'j.i/''.   «°»'t   there  .said 

'""■''    "'H-ther    the    „^"■''^'''^"<^"- 
'  """^  ^«"   >'«  .snst    L,J  '*"'"    °f    book 

,   '7""^''.  that  then  "v    '  ^      ■'1'*'°"'  '' 
t '(    horse   for   ♦),„    .,r^  «»  exchniirre  of 

!'S''ty..si.v  .vnts  rath  ;  ?h„r''"^'"'d  *''« 
^7«^t  .sense  of  il  '';,., f«n'^«ale  in  the 
J"';'.v{..vssl.v  finds  a  sale  tn  ,  "*  ^^'"  ""^'i- 
I'"  ^^  are  ineonsist  nf  „'v,"''   "°"«  "f  the 

▼or,.  1.  "'lenea    from  the 

2 


'"'""'  '■■^^'■"tiai  t,  a  "  • '  ■ ,""  "w...d  ,,;:i,,,. 

^i/''-o.ether';::c''j;.''';p">oria,:,: 


.".'.'.'.','•'  ^•■^■'•'.la/ige. 


"i;  •""«'-'.  whateJ  r'^/';;'  -""-.odi.i,.: 

;,;,'''"••  ■y'''m.tuallvr,.eive,;''''    ■'"'''"'■^^''l 
'"   I'aeh  other      /V  .' "'"''Ill  valents 

*'"'t  the  hos.\v'     "!T^  I- taken.  1 1, 
"^""'  I.m:o    ^     K;:  ,  '"  ""•   '''■'^'      "t 

--'• 'i^lv':::  ;!=?^^ 

"p '■':^li  S'-ir  ^^^^t^ 

%:''a;;r^-«'"-^^^^^^ 

--rlinSatK'^-.-- point 
f'  ns  that  ,.|as.s  of ,,.   ,,      •^.."''^r;  al-s./gov- 

t'e  tune  for  uhieh  ,  ,V-^J'"-''tion  of 
f,"'  -^e*'  Camphel]  2;  Sei'  ";'\^"  '■""• 
Hoskyns  V.  I'uoeov  0  I  ''.^<'''-  60.0; 
Biit.seeNieksen,    ?'        ^'""^   •'•"S.    .Ml 

3;«t  it  «ill  sea,.  l?i,f  ^  "''"'•   312.     a  J 

«alo  except  for^a  •  ,.  T  '""""'  '>«  « 
CK'"«nent  to  tran  f  '",'»""<%  that  a,, 
"i  Koo,l.s  for  a  hif  fV,'"  "l'-^"'"te  property 
°ftl.egood,s.     8eiri'7/p'^i«m.ta'.s£ 

^Sl;  Ali  er  (•    >si,  I'loster,  3  Fo^f 

«o'.  t'.  Morse,  7  ^  '\  "'/,  .'^   B- ,/i2  ;  Owen.' 

Kisdon,  7Taunt.  18S     -    f'^  Z^':  t'<^''  r 
«'*•:  t-hisnmn  ^    Co,',nVi";,'''"''2C.  I 
P"tton  V.  Solomon      *\^n^^-&''- 307  • 
S««neotti,.West.nA  ''/.?•*   ''•   -''^2 '■ 
f,  ''""T.  11   Kas  1 1  8-  n/^'f  •  ^5 ;  Holt 

f«ttom,  2  H.  ^.  ^^,f^5  .    il-V^^ 

Lai'o,,,,  2J.:i.&B-g!-^^'  "o<'l'.ster  v.  De 

5  fc  ..  &  n.  714  ;  V  F    &1ro^,^"-  """-.Ion, 

«f)"^'  between  :,,";,"•■'  «^e  analogy-/^ 

last  above  cited  and  A"'^  ^^^  "f''^^'"  TO 
^°'fJ  th,it  a  sale  "i  ''"'"'  ^''''-'''  affec  to 
sUntiaii     .J«;«<i"esr^U 

l^  .Mitehell  ,;.  Gill    lo^"^  "^  ''x.hange. 


III  'tsflnf.'r  fi-rg 


il' 


I 


18 


COMMENTARIES   ON   SALES, 


[UOOK    I. 


rcpi'cscntiii}?  money,  on  the  other.     In  tlie  same  way  f^ooils  arc 
sold  at  an  agreed  price,  and  a  bill  of  exchange,  although  the  repro- 


froin  his  land  a  (luiintity  of  wood,  and  tho 
(lurnulant  iigivcd  to  deliver  us  iiiiiuh  wood 
to  till)  i)laintiir,  of  a  xiiiiilur  iiuantity, 
whiMievi-r  tli(t  plaiiitilf  siiould  drsiru  it. 
Tim  iilaiiititf  afti^rwiiids  dLMimiidoil  tlic 
Wood,  Imt  tiif  di'fi'inliiiit  ni'ijlecti'd  to  iU>- 
liver  it.  Tlie  court  held,  in  ellect,  on  tho 
siiine  jjriiu'ijile  as  that  whii'h  ;,'()Veiiis 
Musseu  V.  i'liee,  4  Kast,  lt7,  and  th(! 
other  cases,  that  nssinn|)sit  for  the  wood 
sold  and  delivered  would  not  lie,  hut  that 
the  deelaration  should  havo  lii;en  for  a 
brcaeh  of  tho  aj^reeinent  to  deliver  the 
wood.  The  distinetion  as  to  the  reineily 
is  ei|Ually  aiiiilicablo  to  lioth  classes  of 
(iasos.  See  further,  Mank  of  <'oluiiiliia  i-. 
Patterson's  Kxrs.,  7  Crancli,  .'i()3;  Williams 
V.  ShanTiiPii,  12  Wend.  10'.»  ;  .Jewell  v. 
.Schroeppel,  1  Cowen,  M\;  Felton  ». 
Dickenson,  10  Mass.  287;  Sheldon  v. 
Cox,  3  B.  &0.  420;  Harris  v.  Fowlo,  eite<l 
in  Barhe  ,..  I'arker,  1  11.  IJl.  287;  BriL'^s's 
Case,  PalnKT,  'Mi;  ('lark  c.  Fairlield,  22 
Wend.  i,7(i  ;  Way  v.  Wakefield,  7  Vt.  223, 
228 ;  Forsyth  v.  Jervis,  1  Stark.  437  ; 
Ladue  I'.  .Seymour,  21  Wend.  62  ;  Leijfh 
V,  i'attersoii,  a  Taunt.  ■'JIO;  (Jaiiisford  v. 
Carroll,  2  H.  &C.  ()24;  Shaw  i-.  Nuild,  8 
Pick.  9  ;  (iuiiter  v.  l.e.'key,  30  Ala.  Ml  ; 
Stewart  v.  Conner,  !»  Ahi.  803;  Cumerou 
V.  Clarke,  11  Ala.  25!);  i'iukard  v.  Banks, 
11  Fast,  20;  Fuller  )•.  Warren,  3(5  Ala,  73. 
In  Koilur  v.  Tutt,  31  ;diss.  301,  30(5, 
where  there  was  a  transfer  of  ^oods,  neither 
for  cash  nor  for  other  goods,  but  for  tho 
payment  of  a  pre-existing  indebtedness  in 
promissory  notes  ;  the  court,  in  holdiu;^ 
that  the  transfer  of  the  i;oods  constituted 
a  sale  ami  not  an  assignment  for  the  bene- 
fit of  creditors,  said:  "The  characteris- 
tics which  distinguish  a  sale  from  a  inero 
assignment  are,  that  in  tho  former  there 
is  a  lixeil  price  and  no  trust,  in  the  lat- 
ter there  is  a  mere  trust,  and  of  cour.se 
no  fixed  value  given  to  the  property. 
Here  the  price  was  determined;  the  goods 
were  taken  by  the  creditor  at  a  fixed  price. 
.  ,  .  That  part  of  the  bill  of  sale  which 
reijuired  the  purchaser,  in  the  event  of  tho 
value  of  the  goods  and  other  property  con- 
veyed exceeding  tho  amount  of  indebted- 
ness, to  pay  over  the  balance  to  another 
creditor,  and  the  remainder,  if  any,  to  the 
debtor,  is  relied  on  as  a  circumstance  to 
ahow  a  trust,  and  thus  convert  the  transac- 
tion into  an  assignment.  But  it  was  a 
mere  mode  of  payment,  and  really  nothing 
more  than  an  assumption  in  a  certain  con- 
tingency of  one  of  the  debtor's  liabilities, 
and  constituted  a  part  of  the  price.  There 
was  no  interest  in  the  goods  or  their  pro- 
ceeds reserved  to  the  grantor.    The  title 


to  the  goods  passed  absolutely  to  the  ven- 
dee, at  an  agri'i  il  price,  the  full  aggregate 
amount  of  wliieli  was  as  yet  undetermined; 
and  as  the  notes  due  the  vendee  might 
not  al>s(ul)  tlie  entire  price,  an  arrange- 
ment was  made  for  the  ]>ayment  of  what- 
ever sum  migiit  exceed  the  amount  of  tho 
indebtedness.  It  is  tlie  case  of  a  man's 
buying  property,  and  paying  for  it  partly 
in  cash,  and  [lartly  by  assuming  adebtiluo 
by  his  vendor  to  another.  The  latter  cir- 
cumstance does  not  make  the  tniiisaction 
a  trust,  or  deprive  it  of  the  essential  fea- 
tures of  a. sale.''  Wittowsky  r.  Wasson, 
71  N.  Car.  4')1,  4.'j(),  is,  in  principle,  an 
analogous  case  to  Keiler  v,  Tutt,  31  Miss. 
301.  There  the  plaintilfs,  being  credit<ns 
of  W.  &  S. ,  suoil  out  an  attachment 
against  them,  and  sent  a  deiiuty  sherilf, 
and  another  person  iis  their  agent,  to  the 
store  of  W,  &  S.  The  attachment  was 
not  levied  ;  but  the  agent  proposed  to  take 
certain  goods  from  W.  &  .S.,tlio  ownership 
of  which  was  in  ipiestioii  in  the  suit,  or  as 
much  of  them  as  might  be  reipiired  for 
the  purpose,  in  payment  of  the  plaintilfs' 
debt  ;  but  the  juice  was  not  agreed  u])on. 
Tlierenpon  the  agent  and  S,  agreed  to  box 
np  all  the  goods  without  an  inventory, 
ami  S,  was  to  take  them  to  the  town 
where  the  plaintilfs  did  business,  and  there 
i^gree  on  a  prieo  with  them;  and  if  they 
agreed,  the  debt  of  the  plaintilfs  was  first 
to  be  paid  out  of  the  price,  and  the  re- 
n'ainder  paid  over  to  S.  for  the  benefit  of 
other  creilitors.  Bef(U'e  tlu'  goods  reached 
the  plaintilfs  thoy  wero  seized  by  the  de- 
fi  ndant  \nuler  executions  against  W.  &  S. 
In  an  action  lor  the  recovery  of  the  goods 
by  the  jdaintilfs  against  the  sheriff,  the 
court  held  that  as  the  parties  had  not 
agreed  on  the  "  price,"  there  was  no  evi- 
dence of  an  exeented  sale,  —  noiiiiiig  fioin 
which  it  could  be  reasonattly  or  fairly  in- 
ferred that  it  was  the  intent  of  tin;  ]>arfies 
to  the  agreement  that  the  absolute  propiMt y 
in  the  goods  shonld  be  transfeired  to  the 
plaintiffs.  Any  agreed  e(iuivalent  for  the 
goods  would  here,  clearly,  have  been  the 
price  ;  the  quid  pro  quo  which,  accord- 
ing to  Noy,  is  necessary  to  constitute  the 
transaction  a  sale. 

By  an  act  of  Congress  of  June  30, 
1864,  it  was  enacted  that  a  duty  of  ,§2.00 
per  ton  on  pig-iron  shonld  be  collected 
from  the  producer  or  manufacturer  theroof. 
By  section  97,  it  was  enacted  that  parties 
who  had  made  contracts  prior  to  the  pas- 
sage of  the  act  were  authorized  "  to  add 
to  the  price  thereof  so  much  money  as  will 
be  equivalent  to  the  duty  so  subsequently 
imposed  and  not  previously  paid  by  the 


i4 


TAUT  I.] 


u 
P 


WHAT  rs   A 


SALE? 


sentativo  of  money   is  t  k  ^^ 

'^--"tin  p«,,„en;.    ThoTi,,"  of':,!"'  ''"^^  ^^  P-nium  or 


"Ix"  l-iovision.s  in   tl„.  i:,..'       -I '"■•'■'•  wvio 

'in>.su  mi,l,.,.  this  act  in  fl,:.  ii    ,'I'"'-'<H"» 
;;''^'' '!'«'i''r.'n,iant  ««,;,,    to      n    ^"  "''*< 

I'ii,'-iioi,  (or  ..v..,v  <mVI V  '^.""c  t""  of 
"•■'"'••  'J''''W''''"til''  i,  ;r  "'■'^''•-•l•■^■• 
'over  If  * xi         .    1^»   "'lU    '^^'llfflit    to    - 


s'lows  tint   i»   ;„ 

'"""^'  -'   .  •  an  i  r"'"f""'">'  "M.,i   in  tI,o 

."•'■^  "-''  in  tu'V'''^  ''"'"''  t''«t 

^■'''|''^^>^'(■on,,w.,,    ,•      .'"  ""•  N«''i.-s.'  of 

'••f''t.Mothi.sV'';r'''' '•'*,'''"'•'''' 

■"*"'''   was  Cor  a  ..    ,         i       ""^'  "l"'''!^  the 

W'yu.on,i..to.';^;.^-r!;-''''-.tto 


j7^''yti;n;^:"^:;;-;.con.n.;n;;;;,;- 


;'"""""t  of  ,h„  ,,  °  ^^  •«  to  whi.h  tL 

"•/"■'^  that  it  con    Lt  h  l^n  "'''''■''•  ""'l 

sections  !U  an,!  or/i?  Zi  f?""^  "'t'ii" 
^;"''  todaim  thatan  ac  ion  m  '""'"  "'^■ 
,^  '"«  'l"ty  coul.Uot  r.  '•  i'"'""""' 
theven.lor,  distinctly  or!  """"t«i'><',|  hy 
t'"'  statute  .suvstimtth      '''■"'' '^-    ^^''"'^ 

""t  mean    that   £     1?"  ^T'  '^  ''"^'^ 
""l-^t  take  place,  „    i  t  mf  H '   "'   ,«^-''tion 

f'"";  time  has  ,,,,/"."?•  ^"-'  "^  the 
}^''"l"ora  I.ortion  of  H,5  "•''*"'"  '"o"'  the 
J';''t  "'■  the  statute  is  to       f":'?" "     The  ob- 

t  "^  <omj„.nsation  w}„"  h  L -^  l"^*^'""  't  to 
^^  S'liil  further  tint  H.        **   ''  '"  P^y-      /t 

^^•^  ^'-''-t.'.!  ou  "aWe If  "^'^  f-r-  «'■•"« 
L'hascr  "  aii,l  ..r,;  , '^"^p.  the  words  "  ,i„,. 

I'hilo.soj.hicaN,.,  ,.       °,  "**«    tei'ms    with 
not  alHavll     "'"^y-  the  word 'prier-- 

?^-tSi:^^F«- 


„  ,-r'"''^th::  r„T","'vwithhr 

T'    I'l-'O'ly   forlils'i,  '''■'■' "'I''"' Wia^e 

'•'"""^••Ithat  the        ,..;;.•    '.'    ''^   "'^>' 
t   ■'Statute,    [an.l        \,^r":'"'\   '"^'"l  i" 

«ii"^vs'that      '^.t';"!'^'"'-''."   ns    ^^ 
»f  wn.n.odit  -s     K      '  ""'  ""  f-xchan^e 

lr«  one  sells  :''rn:''' ••''''''''''••'•  «"!'■ 
"'  "■  "^"t,  umy  not  1  /;."'  •^/r""  '"'■^h.'ls 
"",  "''"■^'''  "f  terms      '        '■"'"''■  "■it'""'t 

f  the  farn..^     /n7  ';'"^*''i'^'tth..,,rico 
tween  these  parti,  '  /'''-^  <-'«iitract  l,e. 

;7"  the  iron';;,"      ,   't,;:"i;"!""t'Weesto 
therefor  in  iM^iron      {    ,  '''""-'iTs  to  ,,ay 

"•o"  'ind  take  tl    ,-.      "      ''   '"  «'■"  l)i"- 

'"«  I"'o(K'rty  hot,  ;     '""',"  f"x^'han^r. 

sellers.'"  And  y  ''  V"V'">'"-^  "'^i 
""t.  the  case  in  Sakel  If  ..'"'"  '""'"t«l 
usually  incorreetlv  , ;,    .  <•   ^'"."  "'^'i^'h  is 

"I'on  the  fa,t  M-fcthS  on'"""""  '"'""J 
"'einhers  of  the  t«n  i  ".  '""""  "''  the 
«/  the  SuprJrt  C  urt  c'ft"^'  x"-"  /"•'''-'•■ 
the  conveyance   of      ,,  "''  ^"''^   '"or 

one  corporation  to  tl  e  otD*"''^^  '"'  ^he 
theS„p,.e„,,e'ourt  Lr  '  ''"'  "  '''■"''''; 
"'■•''<e  .such  an  order  in  ,.Lr'?"''  ""'y  to 
wn«  „  ...,.      ..    ",,;'^''th!' transaction 


];)"^th;:;i,c;,i'i;ffirf^'-  = 

'   it  should  deen     „','''  ''V  the  court, 
tion   of  any  rei„S'*^V'''*''''"PI'l^^ 
make  an  order  X       ,'^^"'T«'''tion,    "  to 

tate  heJonsilto  sud"^^'  "'  "!'^  '•™J  ««" 

,fT.^'ork\vru;to7i'°er'f '""•'.'    '^'''^ 
'lecision  of  «ho  «.       r'"^''is,  leversin.T  th.. 

there  „us1.otlf'^Xr''"'^''^'''''^''«t 
adopted  the  definition  of°  HI  w^'''"^"'^ 
^on'-  446)  and  Kent  /o  r  '^''"^'^''tone  (2 
former,  that  a  saJe  il  I  f^°'"-  ''^^^  !  the 
property  1, Mm  one  „,      *  t'"''>"smutation  of 

v'^'ue;  and  the  Tattler  thTt  ''"^T^'"'^''  i" 
tract  for  the  transfer  Ar  "  "''''^  '''  "  <'°^- 
person  to  anothe  or  a  ^Tl^^  ^''"^  ""« 
«t.on;a.o„,the;e;^3S^J'--^ 


t!,".ii:j;;i 


;  I 


I  if 


!     ■ 


^1  • 


i,n 


*   >l 


11 


20 


COMMENTARIES  ON  SALES. 


[book  I. 


commodity.    There  is  then  the  double  sale,  the  buying  and  selling 
of  the  goods  on  the  one  hand,  and  of  the  bill  of  exchange  on  the 


being  a  price  (rsed  here  in  the  sense  of  a 
quid  pro  quo,  as  in  the  definition  in  Noy's 
Maxims)  mid  or  to  be  paid.  Tlie  court 
said  :  "  The  term  as  used  in  the  statute 
should  be  construed  as  defined  by  Hlack- 
stone  and  Kent.  This  would  embrace 
every  transfer  for  a  valuable  consideration, 
whether  paid  in  cash  or  other  projwrty. 
In  case  payable  in  the  latter,  the  projjerty 
to  bo  received  should  be  specified  in  the 
petition  [to  the  court],  so  as  to  enable  the 
court  to  determine  whether  the  proposed 
contract  is  judicious  on  the  part  of  the 
corporation.  Tested  by  this  construction, 
the  arrangement  set  out  in  the  petition 
was  in  no  sense  a  sale  of  the  property  by 
the  plaintiir  to  the  defendant.  There  was 
no  price  whatever  to  be  paid  therefor. 
The  plaintiff  as  a  corporation  was  to  de- 
rive no  possible  benefit  as  a  consideration 
for  the  conveyance.  True,  the  members 
of  the  plaintiff's  church  were  to  be  re- 
ceived into  and  become  members  of  the 
defendant's  church,  and  the  plaintiff's  cor- 
porators were  to  become  corporators  of  the 
defendant.  This  may  be  regarded  as  a 
benefit  conferred  upon  these  classes  as  in- 
dividuals, but  can  in  no  sense  be  so  to  the 
plaintiff,  regarded  as  a  corporation.  In- 
deed, the  arrangement  could  only  be  made 
effectual  by  the  dissolution  of  the  plain- 
tiff, and  this  result  it  was  the  manifest 
purpose  of  the  arrangement  to  effect." 
And  see  Wheaton  v.  Gates,  18  N.  Y.  395  ; 
Robei'tson  v.  Hullions,  1  Kern.  243  ;  \Vy- 
Btt  V.  IJenson,  23  Harb.  327  ;  Stow  v. 
Wise,  7  Conn.  19  ;  Wiggin  v.  Free  Will 
Baptist  Society,  8  Met.  401. 

In  the  New  Ham]).shire  case  of  Mitchell 
V.  Gill,  12  N.  H.  390,  395  (supra),  where 
it  was  held  that  inckbitntus  assumpsit 
would  not  lie  as  for  goods  s<ild  and  deliv- 
ered, where  wood  had  been  delivered  by 
the  plaintitf  to  the  defendant,  for  which 
an  ecpial  (juantity  of  wood  of  the  same 
quality  was  to  be  subsequently  delivered 
by  the  defenilant,  but  that  the  action 
must  bo  on  the  special  contract,  the  court 
said  :  "In  general,  where  goodf  are  sold 
to  bo  paid  for  wholly  or  in  part  by  other 
goods,  or  by  the  defendant's  labor,  or 
otherwise  than  in  money,  the  action  must 
be  on  the  agreement,  and  for  a  breach  of 
it,  and  not  for  goods  sold  and  delivered. 
.  .  .  If  where  goods  are  sold  to  be  paid  for 
otherwise  than  in  money,  and  the  vendee 
neglects  to  perform,  an  action  must  be 
brought  on  the  special  agreement,  Ihere  is 
a  still  stronger  reason  for  adopting  the 
same  form  of  the  remedy  where  the  goods 
are  not  sold  but  exchanged.  In  the  former 
case,  the  goods  are  at  least  sold  ;  and  so 


far  the  evidence  supports  the  declaration. 
But  the  latter  case  has  no  feature  in  com- 
mon with  a  contract  necessary  to  support 
a  count  for  goods  sold  and  delivered.'  We 
very  much  doubt  the  soundness  of  this 
fine  distinction.  Goods  being  "sold  to 
be  paid  otherwise  than  in  money,"  comes 
within  what  is  technically  called  an  ex- 
change or  barter.  The  distinction  which 
seems  to  be  implied  here  is  that  a  mon- 
ey price  for  the  goods  "  sold  "  "  to  be  paid 
otherwise  than  in  money,"  is  necessary  to 
constitute  the  transaction  a  sale,  and  with- 
out it  the  transaction  is  an  exchange.  But 
if  indebitatus  assumpsit  on  the  common 
count  for  goods  sold  and  delivered  wouhl  lie 
in  the  former  case,  on  analogy,  in  the  latter 
case,  a  quantum  valcbat  count  in  indebitatus 
assumpsit  would  seem  as  well  to  lie.  See 
infra,  p.  30,  and  Ibid.,  n.  4  ;  axxd  supra, 
n.  2  to  p.  10,  at  p.  14. 

A  somewhat  smiilar  distinction  was 
taken  by  the  Supreme  Court  of  the  United 
States  in  the  Five  Per  Cent  Cases,  110 
U.  S.  471 ;  where,  under  acts  of  Con- 
gress, the  question  arose,  where  it  was  pro- 
vi.'ed  that  different  States  should  receive 
five  per  cent  of  the  net  proceeds  of  the 
lands  within  such  State,  wiiich  should  be 
sold  by  Congress,  whether,  where  the 
lands  were  not  sold  by  the  United  States 
for  cash,  but  were  "disposed  of  by  the 
United  States  in  satisfaction  of  military 
land  warrants,"  the  particular  State  was, 
entitled  to  the  percentage  on  the  lands  so 
disposed  of.  The  court  held  that  the  acts 
themselviis  made  a  distinction  between  the 
two  cases  ;  excluding  the  percentage  from 
the  lands  given  in  satisfaction  of  the  war- 
rants. While  the  decision  on  this  ground 
seems  correct,  the  distinction  taken  by 
the  court  (at  p.  478)  we  think  is  open  to 
question.  Gray,  J.,  in  delivering  the 
judgment  of  the  court,  says  :  "  A  sale  in 
the  ordinary  sense  of  the  word  is  a  trans- 
fer of  property  for  a  fixed  price  in  money 
or  its  equivalent.  When  property  or 
money  is  transferred  or  paid  as  a  conipi'u- 
sation  for  service,  the  property  or  money 
may  be  said  to  be  the  price  of  the  service  ; 
but  it  can  hardly  be  said  that  the  service 
is  the  price  of  the  property  or  money,  or 
that  the  property  or  money  is  sold  to  the 
person  performing  the  service."  We  think 
this  is  scarcely  a  fair  way  of  stating  tlie 
case.  If  "money"  is  paid  for  services, 
there  is  no  question  of  "  sale  "  in  the  tiiins- 
action.  It  is  simply  money  paid  for  work 
and  labor.  But  if  property  is  sold  and  is 
to  be  paid  for  by  goods  to  be  delivered  or 
by  labor  to  be  done,  if  "  the  proprty  may 
be  said  to  be  the  price  "  of  the  goods  to  be 


PART  I.J 


WHAT  IS  A  BALE  ? 


delivered  or  the  labor  to  Iw  i 

sideration  for  the Edi  1  i"",*'  "'"  '^O"' 

.equally  so  (as  '  Tnon  '  s\^  lu  *  '"*  •^'•'«'-' 
in  the  Hudson  Iron  Co  ■  u"'^'  ^^7'  ""^ 
173)  the  sale  o    Z^'^'^M''  ^^  N.  Y. 


:Xt:::'  :i;cx:  eit;^-  ^-^  .oo^,  .„.  J 

be  the  j.rice  ornon«.\l...  .."^i^*'^'  P^  .shkI 

round  and■smm\uV^nSo»•t^ '^*t^^ 
than  eleven  in.'hJs  itVl  .        .,   '^"'  ^raaUer 

declaration  was  fm.ned     nT"  ?"'^'"   '^^e 
without  aile^ri,,,;  ™,  '"''«'•  the  statute, 

^^r  the  holding  if  tie    ""TV""^'""- 
danfs  plea  of  stt  off  u      °"''''  ^^^  ''efen- 
JJ'i"k,  \n  this  c te    C  tT*"!"^'^-    ^^'« 
been  on  the  contS  «       •*''"  '^'^'^Jarntion 
«l't'oial  damage  as  w'll^""  ""'^  fovinij 
for  the  defer^l;'  •:;  'J^^''« 'jonsic/emtiof 
tion  would  have  been  s    tw'    'f '  f '"'^  ««" 
^V-is  not  found  necelsnrtf    "" "    ^^"e  it 
ton.  the  court  wraV?;'':i''^r'''« <!"«- 
tlie  opinion,   in  efleef    f     . "'  *°  "^'Press 
wouhi  not  lie  under   i      1"   '""''  '''t'on 
tJ'e  'leclaration"    o  m'',-;,^  «tute    but  tha? 

been  as  at  common  au-    Thl  ^"'^j^  ^ave 
and   special   daniVrril   i'  •    '^  ^""sideratitn 

't  was  held,  in  e  lee     tlfaf  ^7'  ^  i'^-  301, 

^'ven  for  the  payment  ofV'T- "  ""t*^ '« 

»'0"ey,  within  aStaiiti.n  'TT  '""'  ^^ 

sj'ecific  articles:  if  th^.  /.  .^^^  *"  ^'  ^ "^'' '» 

not  delivered    or  Lr  .   1'  r  '"^  "''t'cles  are 

within  the  aga.e"ti  7   *°  ^"^  '^'^^'^'-''^d. 

becomes  an  abso  ,  "'o^,'   r.'^H ''''*^"'  *^"» 
in  monevof  ti,  .     '"^  the  pavnlell^ 

tract,  a-^l  the  .rk."  S':r'^^  '^^''-eo!  ■ 
lias  the  rirrht  to  mt ,.  ''"'  ""^•'  «"  lo"A'er 
Fi'ic  articles  th^"Vl!m"nr;i"*  '"  ""^  «P«- 
ing  then  bec'on^one  f"  a  I  '"  ^f^'^,  ''■'^- 
ascertainedsum.  This  we  l/i 'f '^'^  ""^ 
tJie  meaning  of  H,„       '  1      '""'^■' '«  really 

-'-  ^-.vii^Thrs  "'t/'"  f '"'^' 

exi>ress  languac^e  of  tl,.      '  :'''''«"Si>  the 
farther  that  this      S      p  "'  ^""^  «  ^ittlo 
1  II.  J!l.  283;  i lanif      J'^'Y' "•.^'•^''^er. 
287  ;  Can,pb,.h""s   ,e,l  ^'"'';'f/''-'^  ^*-' 
Alussen  t;.  IVice.  4  St    ,'47     V/'^'-^^^  ' 
f"Peroy,  9  Ea^t,   498    501  •' k'^i*""-' "' 
Jessom,  2  Stark  2''7.h;  it'  ^"^I^'son  e;. 
7  Taunt.  312  •fce'r '','"-''•  "«'<'ey, 
|S8;Hutchins'orM.'R;i  ^;'°"•^1"-"t: 
^^ysf.  Harwood    2c       '.fnr"'"'''^-  329; 
Jiinrr.  X  (.    ~'^\  ';'«.   t'llwon  y.  Bell.  1 

J'-  X    It    r^i)      V,    '^""'^  >-'■    ^\  hite,  1  H  A 
Joh  ,     274         /^•^>''"<^'"1  V.  iJearnard    it 
Oi  .  ,u    ,    •  ''enninm  v.  t'anm    n  V  1 
s^-i  ;  Clark  v.  Sniifli    i  j  •'-■'"'I'.  13  Johns. 

"•  ''elaware  &  ilud  '  ;'S;'-^  //'^  '^  '^"bois 
28!) ;  Talver  t  "west    H    '/''i^-""'  *  ^^'"^J- 

1  T.  R   nq  .  if'  .     '  Towers  v.  Barrett 

18.-   Clark  ;    FvV-  T,  ^^"^'^'^^t.  1  C.  &P 
v/iitiK  17.   rairneld     00    ii-      ,     ~1** 

^Vay  e,.  Wakefield,  7  Vt '^9,^^ o."^-  ^J«  .' 
I'"ke,  14  M.  ^  ^\.  j'^^-  4<^'  .   liarnson  ». 

Hernck..Carte-,56-Barb.  41.  although 


173)  the  ale  o/'t,"  .'■  "i-  '^^"•^••'  ^^  ^-  V. 
con.si,ierat.on  fbr  .'tiP"'''  "'  ^''e  price  «; 
''■  "  ti'e property"  is  th'e?'"^-''  «"' too, 
ation  forthegSs  an  » ^  'f  °'' '^""^'''ler: 
sold  to  the  ]S^Z\T-^'rd  "to  be 

with  equal  correctness  i?"'.^  *'"^  «°"^'«  J 
the  pr{,p,rty  ..s"^7^,  be  said"  that 

performing  the  ser;i  •'  ''    if  h.*'"-;  I'"'''°» 
case  rested  on  the  no«;f;„  '  *'"^''?fore,  the 
P"t  it,  that,  wh  le^""'   °"'  ""  ^^'"y  bavo 
price  "  for  labor  th.r.'"'^  "''''y  be  "  a 
of  goods  or  "Ktv  '-  fof*"^'  ."^  ^'--'^'''^f'-''- 
'^rtv  as  a  sale.^hL    [  „.£'a1"1t  V"^" 
f>Ie  ;. because  the  proper  v„r"r,'"'  ^'''*'  •"* 
he  ].aid  for  by  labo     ivp?.      ??°'''  "'^'r*-'  to 
<l»e.stion  theL  id  ;;  s  o  -T,' i'  ""''y  "^"^'b 
^•.''*  assumes   that  nronpl/      '^''^-     ^be 
price  of  labor,  enua'^v'!    ^,"'ay  be  the 
he  the  price  of  ot  I,  7       '    *'"^"'  ™ay  it 
the  sale'  and  pure  1'  o?^""'^  '  «'"'  '^  «» 
he  l)aid  for  by  other  I   '"■"'""^''  't  may 
«''le;   erjuallyso  \wHp'T'"*>''»nd  be  a 
a"'tuitl!outcon°nve,  '""*  ""^  1"-^«tion. 
°'ay  it   be  pSd   for  hvT?^''"^'-'°''Jaw 
othery^./rf/XJ^,;"'   by  labor,  or  by  any 

2  Blk.  Com..  S  .' 2    >  ^  ''-^A'"''  '^^  42  ; 
andbeasale      1/   h,^  V'"'  <^""i-  468) 

0'  a  sale  at  con  mon  f    '       ^''^^  ''"«"ition 

«nleof  lands  for  c^sb'T  *°  ^'bether  a 

°''  lands  in  sat  sS  o"n"nr"  "./."^P^^ition 

w.irrants  "  u»,„      ,   '""  °f  military  land 

saie,  «te".?ron;.tv"^'-'"^  i'-eludc^l  i;.".^ 

'  the  ,,nce  "  of  ?.M    ^     '■'  '-""needed  to  be 

think  Ihe    ase  va;  vr  ^T';'^^''  ^«  «bould 

b'nder  a  Ntnv  H nT  -^^Z  '^''''^'d- 

""h'.s,  pavable  nfi,       ■       that  prom  ssorv 

;;•"'•''  given  forT\XMr'  'V^  ^'"'>' 
the  .same  as  r)ron>. "sin!  !  "-onsideration. 
""'nt  of  monr    t;  X^  "?te,s  for  the  pay! 

o*"  f'e  ques  ion'w  „.r'  ''''''''  ''•''^^Pe'^tive 
""^'htnot  h  ve  b  „  '■  ''"'■'"'  '''"'-'Ke^ 
ti""   for  fh    non   I    •'''°^*"'*'''  '"  an  ac^ 

g?t'"'''taCS'S;'"^'VJ'-''i« 
of  the  articl,.«  l.„       ,        ^°^  the  delivery 

£::-^n;:t^;mo;;^a*'ir*'"^ 
fe'^sii^r^i^frS'^^^ 

''»  the  month  of  v?,?''""°":'"? form: 
to  I'ay  I,,  s  nr  K  ^^'  """^t,  I  i)romise 
."•'■tf'  inte  est   f„7v5',?,''«'-'    ^38    iL.   6,;'^ 

'"%Bdeii;;^rj:t'tm;ir"''''"-^T'''''' 

""*  miJl.  —  scantling 


{      , 


hf  ■ 


I  ' 


i  ( 


22 


COMMENTARIES  ON  SALES. 


[book  I. 


The  transaction  here  is  no  less  a  sale  and  purchase  of  the  goods 
than  if  the  payment  were  in  money. 


we  think  it  is,  uiKiuestionably,  wrongly 
decided,  is  an  important  one  on  tlie  sub- 
ject of  barter  or  exchanges  of  goods,  or  the 
equivalent  thereof,  sales  of  goods  jjiiyable 
in  goods.  In  the  New  Brunswick  case 
stated  above,  Steeves  v.  Hopper,  1  Allen 
{N.  B.  Rep.),  394,  the  inclination  of  the 
court  evidently  was  (Chipiimn,  C.  J.,  a 
very  able  lawyer,  delivering  the  judgment), 
had  it  been  necessary  to  have  decided  the 
question,  to  have  held,  and  we  think  cor- 
rectly so,  that  a  sale  of  goods  payable  in 
goods  is,  while  technically  an  agreement 
for  the  barter  or  exciiange  of  goods,  also  a 
double  sale  of  the  goods  ;  each  of  tiie  par- 
ties being  a  &  Her  and  each  a  buyer,  and 
all  of  the  warranties  usually,  as  of  riglit 
and  power  to  sell  (Anon.,  3Salk.  157)  ;  tlie 
statute  of  frauds,  etc.  (see  iiifia,  our  iJook 
on  Statute  of  Frauds),  attiiching  to  each 
of  the  sales  as  in  an  ordinary  case  of  the  sale 
of  goods  for  money,  or  on  creilit,  or  for  any 
of  the  representatives  of  money,  checks, 
bills  of  exchange,  promissory  notes,  etc. 
And  therefore,  on  the  same  principle,  for 
the  non-delivery  of  the  goods  by  either 
of  the  i)arties,  an  action  for  special  dam- 
ages for  such  non-delivery  would  lie  at  the 
suit  of  the  othi'r  party. 

Herrick  v.  Carter,  56  Barb.  41,  decides 
the  very  opposite  of  this,  we  think,  un- 
doubtedly correct  princii)le.  As  the  ([ues- 
tion  in  this  country,  where  such  transac- 
tions are  so  very  common,  is  one  c)f  very 
great  importance,  we  state  the  case  (piite 
fully.  The  action  was  brought  to  recover 
the  value  of  nails,  which  tiie  plaintilfs  were 
to  receive  from  tiie  defendant,  at  the  price 
of  $5.37i  I""'  ^'^'^  l*^^''  ''^'"  I't-'i'tiiin  dry 
goods  which  the  defendant  had  purchased 
and  received  from  the  plaintilfs.  On  the 
trial  the  nails  were  found  to  be  of  the 
value  of  .$8  per  100  lbs.  Part  of  the  nails 
were  delivered,  leavingabalanceof.$191.y2 
payable  in  nails  at  the  rate  of  .$5.37^  per 
100  pounds  ;  or  (including  interest)  at  the 
proved  value  of  the  ((uantity  of  nails  re- 
(luired  to  be  delivered  to  meet  the  balance 
due,  $8  prr  100  lbs.  ;  i}->S8.  .Judgment  for 
this  amount,  on  the  liiuling  of  the  referee, 
was  entered  for  the  plaiutills.  The  referee 
further  found  that  the  agreement  and 
transaction  between  the  ))arties  was  a  pur- 
chase by  the  jilaintilfs  and  a  sale  by  the 
defendant  of  a  (piantity  of  nails  at  an 
agreed  price,  to  be,  and  was  then,  paid  for 
by  the  plaintilfs  in  dry  goods  ;  and  on  the 
part  of  the  <lefendant,  a  purchase  of  the 
plaintilfs  of  dry  goods  at  an  agreed  i)rice, 
to  be  paid  for  in  nails  at  an  agreed  ))rice  ; 
that  the  nails  were  purchased  by  the  plain- 
tiffs and  the  goods  by  the  defendant,  each 


for  the  purpose  of  trade,  and  by  the  terms 
of  the  contract  no  money  was  to  be  paid  by 
either  party  ;  the  intention  of  the  plaintilfs 
being  the  purcha.se  of  nails  ;  of  the  defen- 
dant, the  purchase  of  dry  goods.  The  evi- 
dence fully  sustained  this  tinding.  The 
following  is  the  elfect  of  the  evidence  :  The 
goods  sold  were  to  be  paid  for  in  nails  at 
^5.37J  per  100  lbs.  Tlie  nails  in  question 
were  purchased  by  the  plaintilfs  from  the 
defendant  and  paid  for  by  sale  of  dry  goods. 
The  nails  were  bought  for  the  purpose  of 
selling  at  a  prolit.  There  was  no  agree- 
ment or  understanding  between  the  plain- 
tilfs and  defendant  that  the  goods  were  to 
be  paid  for  in  money,  or  in  any  other  way 
except  in  nails.  No  other  kind  of  pay- 
ment was  intended.  The  nails  were  pur- 
chased or  contracted  for  by  the  plaintilfs 
for  the  purpose  of  selling  them  at  a  prolit 
to  their  customers.  Here  clearly  was  a 
barter  or  exchange  of  dry  goods  at  an 
agreed  price,  payable  in  nails  at  an  agreed 
price  ;  or  a  sale  of  the  dry  goods  on  the 
one  hand,  payable  in  nails  at  a  spccilied 
jirice,  whicli,  therefore,  siiecilically  lixed 
the  (piantity  ;  and  on  the  other  hand,  a 
.sale  of  the  spccilically  lixed  (luantity  of 
nails,  by  the  defendant  to  the  ]ilaintiir, 
jiaid  for  in  dry  goods  at  an  agreed  price. 
The  Supreme  Court  of  Xew  York  on  the 
contrary,  reversing  the  judgment  on  the 
clearly  correct  lindiiig  of  the  referee,  ex- 
pressly held  that  it  was  a  sale  of  tlie  dry 
goods  jiayable  in  nails  ;  but  that  it  was 
not  a  sale  of  the  nails  jiayable  in  dry  goods, 
nor  was  it  even  an  exchange  of  the  dry 
goods  for  the  iiaiKs.  Vet  how,  when  the 
dry  goods  were  given  for  the  nails,  and  the 
nails  were  to  be  given  for  the  dry  good.s,  it 
was  not  an  agreement  for  an  exchange  of 
the  dry  goods  for  the  nails,  is  inexplica- 
ble ;  and  against  tho.se  writers  who  claim 
that  a  barter  or  exchange  is  substantially 
not  a  sa](! ;  the  case  really  holds  that 
ft  barter  or  exchange  is  a  sale,  and  is 
not  a  barter  or  exdiange  at  all  !  And 
again,  when  the  dry  goods  were  given 
for  the  nails,  and  the  nails  were  to  be 
given  for  the  dry  goods,  why  this  was 
not  as  much  an  agreement  for  the  sale 
of  the  nails,  payabli^  in  the  dry  goods,  as 
it  was  for  the  sale  of  the  dry  goods,  (lay- 
able  in  naiis,  is  certainly  ratlier  jiu/zling. 
The  judgment,  which  is  the  unanimous 
judgment  of  th(!  court,  delivered  by  Fos- 
ter, .1. ,  is,  we  think,  transparently  unsound. 
Th<'  following  extract  from  it  fairly  sum- 
marizes the  juilgment  :  "  I  think  it  would 
be  a  manifest  jierversion  of  the  testimony 
to  call  it  a  purchase  of  nails,  to  be  ));iid  for 
in  dry  goods,  or  even  au  exchange  of  nails 


PART  I.] 


WHAT  IS  A  8ALK? 


28 


The  following  cases  in  this  connection  will  be  found  of  interest 
and  importance :  — 


for  dry  gooils.  No  quantity  of  nails  was 
barnaiiii'il  for.  No  ainomit  in  value  of 
iiaiis  was  specitied.  [The  (luantity  and 
liiice  of  the  dry  goods,  and  the  agreed 
iriif  of  tlie  nails  fixed  this.] 


I „ _.,       but  the 

(li'feiidaiit  from  time  to  time  hoiujht  dry 
(jiMi'1.1  of  the  iilaintitfs  in  such  tjuantities 
as  he  desired,  and  those  amounts  iivre  to 
hi'  pilid  for  in  luii/s,  and  it  seems  as  though 
till'  only  apology  for  the  ('onelusions  of  the 
referee  is  that  ihe  jilaintitfs  swear  they 
wanti'd  the.  nails  to  sell  to  their  customers 
and  at  a  prolit,  and  j/ct  tlicy  kept  only  a 
(Ini  i/nuds  Kiid  bout  (ind  shoe  stoix."  As  a 
matter  of  fact,  the  keeping  of  a  general 
store  for  selling  dry  goods  and  boots  and 
shoes,  wotdd  not  atfect  tlieir  j>o\ver  to  sell 
nails  as  well  to  their  customers  ;  and  even 
if  such  a  thing  as  that  would  all'ect  the 
construction  oi'  the  contract,  the  evidence 
shows  on  that  ])()int  nothing  else  than 
that  the  plainliifs  bought  the  nails  (payable 
in  goods)  to  sell  them  again.  Tlie  court 
felt  themselves  bound  to  assume,  and  alike 
from  the  eviilence  and  the  un(|Uestioiiably 
correct  finding  of  the  referee,  they  had  no 
escape  therefrom,  that  the  transaction  was 
a  pni-ciiuKC  by  the  defendant  of  the  dry 
goods  in  i|Ues1ion  at  a  price  agreed  upon, 
on  credit,  and  to  be  paid  for  thereafter  in 
nails  at  a  fixed  ]irice.  Then  what  was  the 
contract  ?  To  furnish  a  sullicient  (luantity 
of  nails  to  i)ay  at  a  sjiecified  valuation 
(S.'t.Ii'i /)c/'  loo  lbs.)  for  dry  goods  bought 
for  a  sjiecific  sum.  Then  if  the  defendant 
failed  to  perform  his  agreement,  and  did 
not  deliver  such  lixeil,  ascertained  (luaiitity 
of  nails,  was  he  not  liable  for  the  direct 
(laiiiages  resulting  from  his  breach  of  con- 
tract !  And  would  not  these  damages  be 
such  as  would  directly  result  to  the  plain- 
tills  fidiii  the  defendant's  failure  to  deliver 
the  i|iiaiitity  of  nails  which  for  a  valuable 
consideration  lu^  had  agreed  to  deliver  ; 
as  such  daniaf^cs  w.'i'c  correctly  estimated 
by  the  referee  in  the  case  /  Clearly  so. 
liiit  this  (luestion  of  damages  is  the  sub- 
ject of  investigation  in  a  later  ]iortion  of 
this  work.  On  the  main  (|uestion  in  Her- 
rick  r.  Carter,  Titj  Barb.  11,  the  misstated 
decisicm  of  Anonymous,  '•\  Salk.  i."i7  (si-e 
1  Pars,  on  Con.  i>'2l  and  )(.  </.),  is  much 
sounder  law,  "  In  rjrlmnging.  both  piirtirs 
are  buyers  and  sel/crs,  and  both  equally 
warra)d."     See  supra,  p.  4. 

So,  also,  in  the  later  New  York  case  of 
Hudson  Inm  Co.  v.  Alger,  .'»4  N.  Y.  17.'J, 
177,  which  we  have  above  examined 
(see  ante,  p.  10,  n.),  wiiere  an  agreemoni 
for  an  cechangc  of  a  specific  (piantity 
of  iron  ore  fm-  a  specific  ipiantity  of  pig- 
irou  was   held  in  ell'ect  to  be,  not  only 


an  exchange  of  the  iron  ore  for  the  pig- 
iron,  but  a  sale  of  the  iron  ore  for  the 
pig-iron,  and  a  sale  if  the  ])ig-iron  for 
the  iron  ore.  This  decision  of  the  Com- 
mission of  Ajipeals  is  an  emphatic  rever.s- 
al  of  the  ba<lly  decided  case  of  Ilerriek 
r.  Carter,  SO  Barb.  41.  This  latter  case 
is  in  principle  opposed  by  the  case  of 
Hardcastle  v.  Netherwood,  5  B.  &  Aid. 
1*3,  which  was  a  case  of  special  assumpsit. 
Consideration,  —  that  the  plaiiitilf,  for  the 
accommodation  and  at  the  reijnest  of  the 
defendant,  would  accept  certain  bills  of 
exchange,  and  would  deliver  them,  so 
accepted,  to  the  defendant,  in  order  that 
he  might  negotiate  them  for  his  own  bene- 
fit, the  derendant  undertook  to  jirovide 
money  for  the  payment  of  the  bills  as 
they  became  due,  and  to  indemnify  the 
plaintilf  from  any  loss  or  damage  by  rea- 
son of  the  acceptance  thereof.  ISreach,  — 
that  defendant  did  not  provide  !noney  for 
the  bills,  nor  indemnify  the  ]daiiitilf  from 
damage  ;  by  reason  whereof  the  plaintiff, 
as  acce]itor,  was  forced  and  obliged  to  jiay 
to  the  holders  of  the  bills  certain  sums  of 
money,  with  interest,  charges,  and  ex- 
jienses.  Held,  njwn  demurrer,  that,  as 
plaintilf  might  be  entitled  to  recover  spe- 
cial damages,  a  set-olf  was  not  a  good  plea. 
See  further,  Mitchell  v.  (iill,  12  N.  H.  at 
p.  3!t5;  Shaw  i-.  Nu.ld,  8  Pick.  9;  Cains- 
ford  V.  Carroll,  2  15.  &  C.  t)24;  Leigh  i;. 
Patterson,  2  Moore,  688;  Peterson  i'.  Ayre, 
13  C.  B.  a.os. 

In  the  First  National  Bank  v.  Reno,  73 
Iowa,  14.'),  where  there  was  ft  .sale  of  land 
to  be  paid  for  in  part  in  hogs  and  grain,  it 
was  held  that  there  was  a  sale  of  the  latter, 
and  that,  under  the  contract,  Ihe  jnop- 
erty  in  them  passed  to  the  vendor  of  the 
land,  —  the  vendee  of  the  hogs  and  grain. 
And  in  Calway  c.  Shields,  (iti  Mo.  313, 
where  there  was  an  action  for  goods  sold 
and  ibdivereil,  the  goods  having  been  sold 
by  the  jilaiiitilf  to  the  defendant  as  the 
consideration  for  the  imrcliase  of  lands  by 
parol,  which  the  defeiulant  was  willing  to 
convey,  the  Supreme  Court  of  Missouri, 
reversing  the  judgment  of  the  St.  I.onis 
Court  of  Appeals,  held,  that  the  plaintiff 
was  only  entitled  to  Iv  paid  for  the  goods 
in  the  lands,  notwithstanding  tht^  statute 
of  frauds,  so  long  as  the  vendor  of  the 
laiiils  was  willing  to  convey  them.  And 
ill  Lane  v.  Shackford,  5  iJ.  H.  130,  the 
court  held  the  .same  doctrine,  thus ;  "  If 
one  man  contracts  with  another  to  perfonn 
labor,  .,11(1  receive  as  a  compensatn)n  t'le 
conveya.ice  of  a  }iarticular  tract  of  land, 
although  the  contract  to  convey  the  land 
is  not  a  proper  foundation  for  an  action. 


24 


COMMENTARIES  ON  SALES. 


[book  I. 


The  South  Australian  Insurance  Co.  v.  Randein  is  a  case, 
where,  making  no  distinction  between  a  sale  and  a  barter,  a 


yot  still  common  honesty  and  fair  dealing 
reijuire  that  ho  shall  noi  be  at  liberty  to 
refuse  the  land  and  demand  money,  until 
the  other  party  has  lefused  to  execute  the 
contract."  llichards  v.  Allen,  17  Me.  296; 
Bellinger  v.  Whittemore,  2  J.  J.  Marsh. 
563;  Collier  ;;.  Coales,  17  Barb.  473; 
Coughlin  V.  Knowles,  7  Met.  57;  Weth- 
erbee  v.  Potter,  99  Mass.  361;  Sims  v. 
Hutchins,  8  Sm.  &  Mar.  331;  Shaw  v, 
Shaw,  6  Vt.  69;  Philbrook  v.  Belknap,  6 
Vt.  383;  Hawley  v.  Moody,  24  Vt.  606, 
are  to  the  same  efl'ect.  See  also  Lane  t'. 
Sliaekford,  5  N.  H.  130;  Dowdle  f.  Camp, 
12  Johns.  451;  Crane  v.  Gough,  4  Md. 
333;  Kratz  v.  Stocke,  42  Mo.  354;  Self  y. 
Cordell,  45  Mo.  345;  McDonald  v.  Lynch, 
59  Mo.  350. 

In  Dow  I'.  Worthen,  37  "Vt.  108,  which 
was  an  action  in  assumpsit  for  not  receiv- 
ing a  lot  of  poultry,  tlie  plaintitf  pur- 
chased the  poultry  in  question  from  one 
H.,  under  the  authority  of  and  as  agent 
for  tl'e  defendant,  the  statiiti  f  frauds 
being  relied  on  as  a  defence.  The  plaintitf 
previously,  under  an  order  for  ten  or  twelve 
barrels  of  apples,  sent  H.  twenty  barrels, 
with  word  tiiat  he  would  take  back  what 
H.  could  not  sell.  H.,  on  subsequently 
meethig  the  plaintiff,  told  him  that  ho 
would  take  the  whole  of  the  apples,  and 
pay  him  both  for  what  he  had  scdd  and 
what  he  had  on  hand  unsold.  Plaintitf, 
however,  told  him  ho  need  not  do  so ; 
and  on  buying  the  poultry,  for  the  non- 
receiving  of  which  the  action  was  brought, 
tiie  price  of  the  apples  was  agreed  on  at 
$75,  and  this  was  agreed  on  between  the 
plaintitf  and  H.  as  a  part  jiaynient  for  the 
poultry.  No  part  of  the  poultry  was  de- 
livered, and  there  was  no  written  evidence 
of  the  agreement.  The  court  held,  that 
as  between  the  plaintitf  and  his  principal, 
the  defendant,  the  sale  of  the  poultry  was 
taken  out  of  the  statute.  See  infra,  Stat- 
ute of  Frauds,  where  the  whole  subject  is 
fully  considered.  See  Houghton  v.  Koss, 
54  Mich.  335,  where,  the  facts  not  showing 
that  the  property  in  horses  had  vested  in 
plaintitf  by  an  alleged  parol  exchange,  the 
court  hold  that,  this  being  so,  there  could 
have  been  no  transfer  of  title  without  some 
agi'cemont  of  sale  carried  out  by  payment 
of  earnest  or  price,  or  by  delivery. 

In  Huthmacher  v,  Harris's  Admrs., 
38  Pa.  St.  491,  it  was  held  that  the  pur- 
chaser of  a  "drill  machine,"  in  which  the 
vendor's  intestate  had  concealed  money 
and  valuable  securities,  acquired  no  title 
to  the  money  and  securities,  by  the  pur- 


chase of  the  machine, — the  contract  of  sale, 
like  all  other  contracts,  being  controlled 
by  the  clearly  ascertained  intention  of  the 
parties;  and  it  not  having  been  within  the 
contemplation  or  intention  of  the  con- 
tracting parties  to  the  sale  of  the  drill 
machine  that  the  money  and  securities 
should  pa.ss  by  such  sale,  they  did  not 
do  so. 

In  Fuller  i-.  Duren,  36  Ala.  73,  it  was 
held,  that  an  action  for  money  had  and 
received  would  not  lie  where  there  had 
been  a  barter  or  exchange  of  the  jilaintitl's 
goods  by  the  defendant,  and  where  the 
goods  received  were  not  taken  at  a  money 
valuation,  and  were  not  suksecjuently  sold 
by  the  defendant.  The  court  said:  "In- 
asmuch as  assum]>sit  lies  only  upon  a 
promise,  express  or  implied,  and  not  to 
recover  damages  for  torts  or  trespasses,  a 
mere  conversion  of  the  goods  of  the  plain- 
till",  without  any  sale  of  them,  will  not 
support  the  action.  The  doctrine  of  waiv- 
ing a  tort  and  bringing  assum|)sit  is  con- 
fined to  cases  where  the  defendant  has 
disposed  of  the  j)laintiff's  i)roperty,  and 
received  either  money,  or  some  article  or 
thing  as  money.  Pike  v.  Bright,  29  Ala. 
336  ;  Crow  v.  Boyd,  17  Ala.  51 ;  Strother 
V.  Butler,  17  Ala.  733.  If  the  iirojjcrty 
has  lieen  sold,  it  makes  no  difference 
whether  the  price  is  received  in  mouej', 
or  in  a  chattel  at  an  estimated  price,  for 
money.  Ames  v.  Ashley,  4  Pick.  71  ; 
Mason  v.  Waite,  17  Mass.  560;  Stewart  v. 
Conner,  9  Ala.  813;  Cameron  v.  Clarke, 
11    Ala.   259." 

In  the  case  of  tort  assumed,  trover  or 
replevin  would  lie.  The  owner  of  goods, 
if  a  wrong-doer  by  sale  converts  them 
into  money,  or  into  that  which  is  re- 
ceived as  the  jtrico  and  the  equivalent  of 
money,  may  waive  the  tort,  and  recover 
the  money  or  the  price.  The  recovery 
would  be  limited  to  the  price  received,  or 
agreed  upon,  without  regard  to  the  value 
of  the  goods;  while  if  he  sued  in  trover 
for  the  conversion,  the  value  of  the  gooiis, 
whatever  may  have  been  the  price  for 
which  they  were  sold,  would  be  the  meas- 
ure of  damages.  Whilden  y.  Merchant.s', 
etc.  Bank,  64  Ala.  1,  27.  In  Vail  v. 
Strong,  10  Vt.  457,  it  was  held  that  in 
legal  strictness  an  averment  of  a  sale  is 
not  supported  by  tiie  proof  of  an  exchange, 
particularly  in  a  .special  action  on  the  case 
See  Wright  i;.  Geer,  6  Vt.  151.  But  .sec, 
where  the  action  is  in  assumpsit,  Porter  v, 
Talcot,  1  Cow.  359;  Felton  v.  Dicken- 
son,   10  Mass.  287 ;   Cotterell  v.  Cuff,  -1 


m 


j  '^ 


payin. 


1  L.  H.  3  P.  C.  101. 


PART  I.J 


'4 


WHAT  IS  A   SALE  ?. 


usual  clause  that  goods  J.eldo        !,'/'''  i-I'-cv  containing  ^^ 
surcd  as  sucli,  othoru-iso  the  1   "^  "^^  fT'"'''^'^"  "^u«t  be  i  ! 
l^em.     The  plaintiffs  were   nil  err;7'"'^'  ''''  ^"^^'^"d  to  cover 
■•aha,  and  their  mode  of  do   '    I         ''"»  "**  ^"«'»*^^««  in  Aus 
iannors,  to  whom  their  mode  ^nioir'?"^-  "'^^  ^'^  ^•-•-ve  fto 
;;;^oat,  .Ineh,  on  receipt,  ^^lt"  f  J;'?"""  ^^^^^  ^-"  ^-^-" 
the  larmcrs  wJio  brought  it  into  i  ^''^''  "^  ^''^^  Presence  of 

"^'-^^ed  with  other  wheat  shniM  ^'' -^  ^°'*-*'-«'  vvliorc  it  becanl 

f      ,    /'■  8"'"^""d  in  their  mill      T,'?"^'^  '^'^  '^''cat  by  tho 
they  hked  with  it.     If  .rround  h     «  ^'''^  Plu.ntiffs  could  do  wha? 
;'as  sold  and  otherwise'dZ l"    V"*;'  ^^''^'^'"^^^  ^^^'n  st.ct  Jol 
-n  and  as  their  own  p  1;  1      u  ^'     '  ^^'''"^'^^'^  '^'''  they  tho  S 
t'os  that  the  idcnticaVwleat^^I   "''T."'^^^"^^^^"J^^^1  by^S* 
ret..ed  to  them.     ThXt'^^  '^t  "^  'r""''''  ^^^^^ 
equa    quantity  of   wheat  of  like  nnn   f        ';'^'  *"""  ^'^''"^nd  an 
^""1  0  the  plaintiffs,  or  the  maW-^.fT    ^  ^  7'^^'  *''^*  delivered  bv 
'"y  the  price  as  of  the  day  n    wl     /'?'  "^  ^"  ^"i"'-^'  quantity  f.v 
PJ-  "tiffs  had  tho  optic^rV  d<^  "      '•'  "^^^^'^^  ^"«  d^unand  '  it" 
P-y;"g  such  market  plo      On  ?r';^^"  T^'^^^*  ^^'  ''^^«  qua  ity  t 

^  >»'t  for  South  Australia)  woT       n  '  !'''  ^^'""^  (the  Supreme 


Sf- 285.  and  other  cases  cit.,i„  this 

""«''«.  or  oth  rSo  fS''-  °L  "■"•^"-'■''  "' 
«'"'  of  the  rel[,n  ;,".'"".?,".  ^'"^  <-'"'''''"t 
^'*'''''  '■"  Athe  SM   tj/„  '[^"'''^"ed.     It  was 

?  """f"  ?or  ti  ;•;;;;''.'."?  S'-^^^.t^'Hrtifico,: 


note  was  Riv'nlZ'J-J''''\  ^■''^'•^'  the 
t;«"  oftlt  4^•^^'i^'''|t''e.i..^s,iio- 
^I"'  ".shop"  wl. ,f  r  •'  '^r''  «l"">''gh 
ei-p'l  for  tl  e  nnf„  *''*- .^""''-^  «('re  deliv 
diction.     '"  """'•  ""*«  «•ltho^^  their  juril. 

^  Page  loa. 


i  i! 


i   I 


!:     !'i 


^ 


■ 


26 


COMMENTARIES   ON   SALES. 


[book  I. 


the  case  of  a  possession  given,  subject  to  a  trust,  but  tiiat  it  was 
the  case  of  "a  i)roj)crty  transferred  for  value,"  at  the  time  of  de- 
livery, upon  special  terms  of  settlement;  that  it  comes  to  this, 
that,  "  wliere  goods  are  delivered  upon  a  contract  for  a  valuable 
consideration,  ivhether  in  money  or  monei/s  ivorth,  then  the  prop- 
erty passes.  It  is  a  sale,  and  not  a  bailment."  Here,  it  is  clear, 
that  a  sale  and  a  barter  are  virtually  treated  as  synonymous 
(whether  payable  "  in  money  oi  money's  worth "),  and  where 
goods  are  delivered  upon  a  contract  for  a  "  valuable  considera- 
tion," it  is  here  called  "  a  sale,"  though  the  language  in  its  width 
clearly  includes  that  kind  of  a  sale  which  is  payable  in  "  money's 
worth,"  or  a  barter.^ 


1  The  case  of  Seymour  v.  Brown,  19 
Johns.  HO,  holils  coalra  to  tlio  iSoutli  Aus- 
triilian  Insuranou  Co.  y.  UandoU,  L.  H. 
3  PC.  101,  but  Si-ymour  v.  Hrown  has 
bfien  often  (luestioncil,  and  has  been  more 
more  than  once  ovcrruliMl.  See  Smitli  v. 
Clark,  21  Wend.  83  ;  Uutfuni  i-.  Merry, 
3  Mason,  478  ;  llurd  v.  West,  7  Cow.  752, 
756 ;  Ewing  r.  French,  1  Blaekf.  353, 
355  ;  Newton  v.  Woodrntf,  2  Coinst.  153  ; 
Chase  i;.  Washburne,  1  Ohio,  241. 

Where  there  is  a  mixing  of  floods,  so  tliat 
the  several  |)ortions  cannot  ne  distinguisli- 
ed  ;  if  the  internii.xture  be  by  consent,  the 
proprietors  liave  an  interest  in  common  in 
proportion  to  their  resjjective  sliares.  Hut 
if  one  wilfully  intermi.xes  his  money,  or 
good.s,  with  those  of  another,  without  the 
latter's  knowleilge  or  consent,  the  civil 
law  gave  the  property  in  the  whole  to  the 
innocent  party,  but  allowed  a  satisfaction 
to  the  other.  But  the  common  law,  to 
guard  against  fraud,  gives  the  entire  prop- 
erty, without  any  account,  to  him  whose 
original  dominion  is  invaded  and  endea- 
vored to  be  rendered  uncertain  without 
his  consent.  2  HI.  Com.  405  ;  2  Inst.  t. 
1,  pi.  27,  28  ;  Poph.  38  ;  2  Hulstr.  325 ; 
1  Hale  P.  C.  513.  Where  the  mixing 
(commixlio)  is  not  wrongful,  it  has  no 
elFect  upon  the  rights  of  the  resi)ective 
owners,  if  separation  is  practicable  ;  but, 
if  not,  a  joint  ownership  is  created.  2 
Inst.  t.  1,  pi.  23  ;  Mackeldey,  S'l/stcina 
Juris  Rovinni  hmlir  u/ii/,af,i,  §§  251,  252;  2 
Kent's  Com.  §  581)  ;  .Tones  v.  Moore,  4 
Y.  &  C.  351-356;  Young  v.  Matthews, 
L.  R..  2  C.  P.  127.  See  Pearce  v. 
Schuneh,  3  Hill,  28  ;  Wadsworth  v.  Al- 
cott,  2  Seld.  64  ;  Schutz  i'.  Jordan,  32 
Fed.  Hep.  55  ;  Ityder  v.  Hathaway,  21 
Pick.  298  ;  Pratt  u.  Bryant,  20  Vt.  333; 
Bond  V.  Ward,  7  Mass.  127 :  Sawyer  w. 
Merrill,  6  Pick.  477  ;  Sluunwav  v.  Putter, 
8  Pick.  443 ;  The  Idaho,  93  "U.  S.  575  ; 
Mayor  of  Carlisle  v.  Wilson,  5  East,  2,  7, 
per  Lord  Ellenborough. 


In  Johnston  v.  Browne,  37  Iowa,  200, 
204,  the  principle  was  recognized,  that 
where  the  various  owners  of  property  of 
tlie  same  kind,  and  of  ecpial  value,  consent 
to  a  mixture  of  the  same,  and  the  ))ropor- 
tionate  shares  are  known,  the  loss  of  iden- 
tity does  not  i>revent  each  owner  from 
claiming  his  proportionate  share.  In 
Young  V.  Miles,  20  Wis.  615,  the  plaintilf 
was  the  owner  of  a  quantity  of  wheat, 
which,  with  his  consent,  was  stowed  in 
mass  with  that  of  others  in  a  warehouse. 
After  shipments  had  been  made  from  the 
mass  until  a  ([uantity  not  greater  than 
that  duo  him  was  left,  it  was  held,  that 
this  was  Ills  absolute  jirojierty  as  against 
the  wartdiouseman,  and  that  any  invasion 
of  that  quantity  by  the  latter  was  a  wrong- 
ful conversion,  and  tlnit  the  plaintilf  could 
follow  the  wheat  wherever  it  could  be  iden- 
tified. So,  in  Gardner  v,  Dutch,  9  Ma.ss. 
427,  replevin  was  maintained  for  7t)  bags 
of  coffee,  part  of  396  bags  of  the  .saiiu! 
kind,  the  residue  of  which  belonged  to 
other  persons,  and  from  which  the  76  bags 
were  not  distinguishable,  and  had  not 
been  .separated.  And  in  Stearns  v.  Pay- 
niond,  26  Wis.  74,  it  was  held  that  where 
logs  unlawfully  cut  upon  the  land  of 
another,  were  intentionally  intermixed  by 
the  tre.s])asser  with  logs  of  his  own,  so  that 
the  former  could  not  be  distinguished 
from  the  latter,  the  owner  of  the  former 
might  replevy  the  amount  of  logs  belong- 
ing to  him,  from  the  common  nias,s.  The 
authorities  on  the  subject  are  in  irreconcil- 
able conflict.  We  do  not  stop  here!  to  ex- 
amine them  eritieally.  See  Dawson  v. 
Osborn,  1  Pick.  476;  .\usten  i'.  Craven.  4 
Taunt.  644;  White  y.  Wilks,  5  Taunt.  176; 
Busk  V.  Davis,  2  j\I.  &  S.  397;  5  Taunt. 
622;  Zagury  v.  Furnell,  2  Campb.  210; 
Shepley  v.  Davis,  5  Taunt.  617  ;  Low  v. 
Martin,  18  111.  236  ;  Dillingham  v.  Smith, 
30  Me.  270  ;  Loomis  r.  Green,  7  Grceiilf. 
386  ;  Lupton  v.  White,  15  Ves.  4^2 ; 
Scudder    v.    Worster,     11    Cash.     673; 


PABT  I.J 


WHAT  IS  A  SALE  ? 


27 


So  Sir  William  Jones  in  hi.  ,      .. 
effect  that  wherever  thei-;  is  a  del^i'^'^^"  «»ilmencs,  is  to  tl,e 
foi-  an  equivalent  in  inoncv  LM       7  ""^  ^"'''''^^'*>'  ^n  a  contract 
"ot  fur  the  return  of  Z'iZ-Za      T  '"'"'^'^^  --'-4  Ind 
or  an  altered  fonn,  tkl.  U  T^;^!:^^-^^^  i"  its  o^in  ' 
«  ^f,  a,u]  not  a  baihnent.i     T  fs  ,,-^T:'^^^''''^  ^^^  ^'«^"''.     It  is 
b-te.  ,,,eh  is  a  deliver,-  of  ,  .o  ^-t  '      '''"^'  '^  ^^^'^'  ^"<^-'"  a    a 
alent  in  some  other  valinl, L     ^      ^  ""  ^  contract  for  an  muk 
like  such  a  delivery  for     f  t-";'."?'-^'  "•^'  "^^  in  n  one        ' 
scnbedhere  as  a ''sale.''      '^"'^^'"'^  ""  "^°"^T,  treated  and 'de 
-t  iie  case  of  Wm'v  ?;  Wofi-;     2- 

V  ,  ^  "^  '^  "'-'^t  in  spec  1  c 

answer  lur  tli.,f  ,i  *  ■    ^   l""^'^'-]  of  ,,o,,,io 

-'' '--int.:,;!   ';■;•;;,; ',v''-'-<'H-r^ 

'"  <"iy  r.'iiticiil„i-  hit  .r  ""'I'loiwity 

""'^'''f>     till         ,■;"„. ^"!'"'',  "'°'''  tliai. 

"VH'l.  tlK.',ornvtn'sofl,i/o.'''i   "'^''^ 
»«  e.Viiiniiii.  tJjt'  siil,;..,f  f         FO'"  liLsioii. 

>"g  tJ.e  ,,,u,ti„  o        IS*^^'"^  "'  •"•^■'•■"ss- 

^■'•tyinoUlsJnnl   '.^fr''^'''f  '''"P- 

Jlinn.  at  p.  i-Jg  ^auDusen.    33 

*"•«  took  i,|a,.<.    i,  ""'"■  ^''i'lncs.     A 

t  'e  im.i„  s,J  '  '  •'  '  >;;ved  down  into 
"ver,  Iron.  w}„V  Tev  , J'"'''';,  '"f"  *''« 
^vero   ""warrantully      I"    J' "■*"":*«'■  it 

'''"'  by  the  „oli;.;.         ,''  ,''■'"  t-'l^''"  f'oni 

«""'  "'  tallow siiMVos-f  /'"■  I'°«'^«s- 

"!"!'l-vlull3.::E^/"^^;;^'l-n  stolen 
<l'-^'nisse,l  tie  c)i„  e  .  *  "'"g'.^trato 
fallow  to  he  (l,.tn  ^'  /'"  "i;''-^^'-'.!  the 
'■'•  ^J.  s.  29.  a  1  it  "'""'/?■  2  &  3  Vic. 
"ftho  eon/n.is  of,;"-   ■'*"';?  I'y  direction 

act  ha,l  ,..xpi,,.j. '"'  '  .' ^  ;  f«-  30  of  that 
no  r»o,.ertj-  in  the  t ilh  «  ^"■l*  .|  "'*  A-  l'a<l 
'fintain  an  action  jij  'Ti  "'"  ''""  *» 
chaser)    for    its  cZv,^  "''  ^\  '''"^  I'""-- 

2o'<fH^''"i'1102,'3rded. 
-M  How.  46S). 

'  13  How.  345 


^  nun"  V.    AI  li.s     on   ^\•■ 

,•,..  ?  ,  '"lies,        JO       ^\    jy  g(,Q  f, 

HutehiiJon"  ,  •  i'-  f  ^'^''-  4^1 
«'•  Bchlier,  il  J   '.,1    fioy      t-  ^-7,^'  ^^'■•'1*'" 

6  Cii  dw  I''-  ,  •  ^"'''  i'.  Barker 
"  ^.'i.  48!);  Kiniheievr  l'„t  i  •  ,  ' 
^.    V.   33(1  •     PI,..,      '    •>    ''•   ''Huhin,    l!) 

vhiii;^:-;i>f^';va..Jt.'2^^: 

f-t  e.  Bennett,  2  S;.i    '-sS"^'  ^''■°- 
^'J'-   108;    'a     , .  ':   \*;"  ^•^■'^•.   2  Johns. 

\pr<i  chedwoS:  ^-  i^j- ;;;;;  ^  «tr.  50. , 

^^■/',"'V.  Towns..n.l,  15  Ve      rn     «'  ^"^  = 
^  <;'"liam,   .w   Iowa      S^''    ..    •'  '^'■■''"" 

I-K.-ty^!;',,^-  -„;^l;'ttokeep^i 
»"».andiflH.,,"'s  t,l,  '-'^  *'""''''« 
"■'"'1.'  will  be  taken    1    ,  '  /V'  °""'  *''« 

^'l^itv.tobethet/peSVV'"'^ 

I'Mtil  the„.r,.„f  sloui    r        t'"' I'nncipal, 

|^•I-^t,lL'Uw,^S':*"''''!'«^''■and 

t''^'«"odse,..n  he  "a  ilv       ,•'"'"'•'.''"'■     ^' 
■'"■/'■"■.led,  then    no   ,ll '''■'^^'"^^"."■^'"•-l  and 

to  his  own  UtCl  P  *^  '"'■'>'  '•'•>•  clairn 
"'''"'•«  a-''lval,e'„tt;:V''\"'' '''•-' '''^'''''' 
r'-"<iH,lar;  ^         '"'  ,  '^  l'i<'"tifyin.  each 

^;'"'<-'kindan     ;;";/;%,"'■"■'"*■»''»''« 

:='■""'  l'i.s  alio,  ot^  nrt'^'  ,?';''%'-''f''   "'".V 

'."•'■  ''^  '"nlistin  ",;,';'  ,;,.  '^"    ■'^  the  nii.v- 

''.'71'  ■■■^  '<'n"od,"no\^i;',,  '''';»'■«•  i"ffre- 

ori,^inal   n'oht    «  '  ea;h  "'T'^^'f^  to   the 

:";;,':„t''e  whole   Ios"^-'R,""fl""-^     '""St 

'^'"thepartiesar:^JtS;:'Se 


Wfrni 


1 


28 


COMMENTARIES   ON   SALES. 


[book  I. 


articles  was  enforced.  In  March,  1841,  Levy  gave  his  obligation 
with  a  mortgage  of  $4000,  with  interest,  due  six  years  after  date, 
to  one  Lindsley,  who  assigned  the  obligation  to  Very.  In  March, 
1843,  Levy  paid  to  Very  liiOOO,  and  at  the  same  time  executed  a 
promise  in  writing  to  pay  the  residue  of  the  debt  in  jewelry  and 
other  wares,  which  Very  agreed  to  receive  in  payment,  to  be  se- 
lected within  a  year  from  that  time,  from  Levy's  stock  of  goods. 
Very  refused  to  perform  the  agreement,  and  in  1848  brought  an 
action  on  the  original  obligation,  to  which  Levy  proved  the  agree- 
ment by  way  of  accord  and  satisfaction,  with  an  otfer  to  perform 
on  his  part.  The  Supreme  Court  of  Arkansas,  on  an  appeal,  held 
it  to  be  in  equity  a  clear  accord  and  satisfaction,  because  the  cred- 
itor by  that  arrangement  received  payment  of  nearly  half  of  the 
debt  in  advance,  and  because  the  residue  was  to  be  paid  almost 
four  years  before  the  debt  became  due.  In  the  mean  time  Very 
brought  a  bill  to  foreclose  the  mortgage,  to  which  Levy  set  up  the 
same  defence  by  way  of  answer.  In  April,  1850,  the  court  sus- 
tained the  defence  of  Levy,  and  decided  that  Very  should  select 
from  the  stock  of  goods  in  question  a  suflicient  amount  according 
to  their  value  as  it  was  in  March,  1843,  to  satisfy  the  rest  of  the 
debt.  A  receiver  was  then  apiK)inted  to  receive  such  goods  as 
might  be  brought  into  court.  In  consequence  of  Very's  refusal 
to  abide  by  his  agreement,  Levy  was  obliged  to  keep  his  stock 
of  goods  on  hand  to  tender  them  to  Very,  according  to  the 
agreement.  Levy  had  other  creditors,  who  seized  upon  the 
same  goods  in  execution,  and  they  were  in  possession  of  the 
sheriff,  who  delivered  them  to  the  receiver.  The  next  step  was 
an  order  from  t  e  judge  of  the  court,  directing  Very  to  select 
from  a  box  of  jt  .velry  hold  by  the  receiver  such  an  amount,  ac- 
cording to  the  value  of  the  goods  in  March,  1843,  as  wauld  bo 
sufficient  to  discharge  the  balance  of  the  debt  due  to  him.  This 
he  refused  to  do;  and  the  clerk  of  the  court,  under  directions, 
selected  *2002.59  out  of  85777,  the  value  of  the  goods  in  1843, 
to  pay  Very's  claim,  and  set  them  apart.  Tiie  balance  of  the 
goods  was  then  withdrawn,  and  Very  was  adjudged  to  take  the 
selected  goods  in  payment  of  the  residue  on  the  bond  and  mort- 
gage. Very  refused  to  abide  by  the  decree  and  appealed,  when  the 
decree  was  affirmed.  Very  then  refused  to  pay  the  costs  which 
Levy  had  to  pay,  and  to  satisfy  these  costs  an  execution  was 
issued,  and  the  selected  goods  were  sold  under  it,  realizing  but 
#260,  their  then  value.  After  some  lapse  of  time  Very  brought 
an  action  against  Watkins,  the  security  of  the  receiver,  for  non- 
delivery of  the  goods.  The  court  held  that  the  selected  goods 
were  the  property  of  Very,  and  as  such  were  liable  for  his  debts, 


P4RT  I.J 


^HAT  IS  A  SALE  ? 


29 


and  which  were  as  well  hviihU  „».      •     , 

a.  an,  other  property,  ^T^'ZZnl^'',  '^"'^  ''  ^'^  ---vor 

effec   was  afhnned  by  the  United  slto.i        '""'"'  '^''"^^  **^  "»«t 

WJiere  a  creditor  agreed  to  t^Lf        .'^"P^emo  Court.i 
"^c-nt  of  a  bond  and  n.ort'tl  l^^'J'^'^.  '"«  debtor  goods  in  nnv 
timt  the  creditor  ^a^^S'^^  ^l^^'^'^onH  for  Irk^^S 
Court  of  the  United  States  sustafn  a  thTr'-""S    ^^'^  ^^"'-o 
„^  \A  g.;n,,,,,  agent  to  recoiv.  .„„.„.,     . '"  ^^^c^on,^  holding  that  an 

tered  the  2oo(k  nf  ),; 

P""'il.al   n.i.rht  ,.":.,^'  .  1"'1<1    that   th,- 


oraAfi:S.;;f^^^-ive^pa,..„t 

^^^'>ry,  8  How.  4'»5     \rl"n  "'"'a'n"""   v. 
1  "ill.  Ill;   J  looirlih',"-^''^' '"'»'>. 

rower  of  sah.  oo„,c.,rs  ^o  rilh        "    "',  ^■'"' 


^'a«or  to  take  i.,  ,..„.;i.-!  '""'."J*'.  *!'«  mort- 


factor  only.  It  ta.  ^''."  ''';al'"S  «ith  a 
ease,  as  his  b  en"^^ ,  n  'Z';i"  °"S  '"  ^his 
that  a  barter  ren  i.  v  ""  "'  'he  to.\t 

of  J'i.s  P'ineina  To  s  ',  "  '""  ""^  "«^'"t 
r-'-cha.so  other  gS);'ir'i:'V'''''  """  to 
g'ound  that  he  evee,;,)J  ,'■•  ''^■^"'  "n  that 
™.n,,Ieting  tl  e  dV',  ,'  .  '"  ""tl'o'ity  i„ 
4Vnony„K„fs.     VH      T'^'T'      «^'« 

J'o"-.  (Mis,,)  a'gg   tl\^'-''  r-   ^''^'    6 
•lerton,  2  St  •   1  is-'     u-  ?^'""'*''"'^  «•.   Al- 

251;  W'alker  v  BwX  c''iVT"'  ^'""T- 


[l/^l't  to  dispoS  ti,eLT"--  ^'^  ^'"«  "o 
^'i«  own  ,h.bt.s,  or  bv  r^  ""  I'''?^""'"*  of 
cnve  gocls  ";  horse.  ''""P'-""''^''  to  re- 
•^ash,  i,"  ,li.scham  nfTi '     "■  ,''nytJ.ing   but 

;o/-.pay;)?o'n-trVt'Si?'"'r' 

following,  with  1  ..n\,  iv"        ,    November 

I"-''-  bushel.  'SSn  ^  r^  ■''t  ^^-m 
at  the  tin>e  sinS/'i  ,'''.'"«  ^'^livered 
tbo  water  preventina.  ii    ■'  'ow  stage  of 

tl.enK,ney\vard  e^tlnV',"'"!  "^''^  ^hat 
not  bound  to  receive  t  «      '.'  I;'''""titr  was 

-tl'ority  in  so  i  i  -:"■;  ---''eJ  Ins 
Connelly,  4  Yerrr  177  "o*^-.  'Stewart  v. 
"■  i'^WB  a  &  ild  !•,«  ^°  "1  Gnerreiro 


"'"'t.      J3ac.    Ab.  AeJm         ""■' an<"'A't"- 

Wend.  66;  KelIo.'„  ,'  P  ,'"'  ,"•  S-nith.  3 
116;  Steinn,an  ^k  ;  ;  :'''';':'\J^  ^-nJ. 
Lewis  ^.  Jones,  4  r&'i'r'.'  ';,'-  3«0  ; 
nient  in  goods  of  a  del,  Vw?'  .^  '«  I'ay- 
onginal  obligation  «,  'V'"?"!'''"''*  t''e 
of  the  action"fo  .°t":e  ebr,';'?"''^'^''' •■•'  ^^r 
Barber    Sir  T    p  "*  l""-     Case  v 

Du'iie  2Llft-?;:"p'''^?'  ^;''atchJ;' :; 

2  a   &  Ad.  32S     ,'■.,?;""  •  ",■  <^'"-"-^enmn, 

3  Joi;ns.C  s   o  3-.  B  .i/'^'i',.^-  "o»-^ton 

f8(>;    Strong   y     H,  l.>,     "^  a^' "^ ''ol"'s. 

^.  McCreary,  5  Gill  &  j '  f^'l'  .^J'^Creary 
Sinclair,  15  Vt  4<)';  Vi  '  ^■'''""'•r  v. 
"■•tK^les  than  money  an  7'  ""-';  ''*'"-''' 
«g'-eed  to  be  accented  f,  f  T"'"'''^''  ""'1 
of  a  debt,  the  court  u  II  1""  ««f'«faction 
value  in  monev  W^, '  ?°'  ?*  '"ate  their 


^n.,  i.^  jonns 

ards,  14  Wend.  iW. 

"^  Very  ..Levy,  13  How.  345. 


M 


30 


COMMENTARIES   ON   SALES. 


[book  I. 


aj^rccmcnt  by  a  creditor  to  receive  specific  articles  in  satisfaction 
of  a  money  debt,  is  binding  on  his  conscience  ;  and  if  lie  ask  the 
aid  of  a  conrt  of  equity  to  enforce  the  payment,  ho  can  receive 
that  aid  only  to  compel  satisfaction  in  the  mode  in  which  he  lias 
a<?rccd  to  accept  it.  A  court  of  etiuity  will  even  go  farther,  and 
in  a  proper  case,  will  enforce  the  execution  of  such  an  agreement. 
At  law  a  mere  accord  is  not  a  defence ;  and  before  breach  of  a 
sealed  instrument,  there  is  a  technical  rule  which  prevents  sucli 
an  instrument  from  being  discharged  except  by  matter  of  as  high 
a  nature  as  the  deed  itself.'  J>ut  no  such  dilliculties  exist  in 
equity.  On  the  broad  principle  that  what  has  been  agreed  to  be 
done  shall  be  considered  as  done,  the  court  will  treat  the  creditor 
as  if  he  had  acted  conscientiously,  and  accej)ted  in  satisfaction 
what  he  had  agreed  to  accept,  and  what  it  was  his  own  fault  only 
that  he  has  not  received.  Indeed,  even  a  conrt  of  law,  in  a  case 
free  from  the  technical  dilliculties  above  noticed,  will  do  the  same 
thing.2 

An  agreement  to  pay  "  in  the  paper  of  the  Miami  Exporting 
Company,  or  its  equivalent,"  is  satisfied  by  a  tender  of  the  ))aper 
of  that  company,  and  the  |)romisec  can  recover  in  specie  only  its 
market  and  not  its  nominal  value.^  The  Supreme  Court  treated 
the  agreement  in  this  case,  to  pay,  as  amounting  to  nothing  more 
than  an  agreement  to  deliver  a  certain  (piantity  of  Hour  or  any 
other  commodity  on  a  given  day.  Tlic  court  said  :  "  The  notes 
of  the  Miami  Exporting  Company  purported  to  be  money,  and 
may,  to  some  extent  at  the  time,  have  circulated  as  such  in  busi- 
ness transactions  ;  but  it  is  manifest  thev  were  not  considered  as 
money  by  the  parties  to  this  contract,  but  as  a  commodity,  the 
value  of  which  was  to  be  ascertained  by  the  amount  of  specie  it 
would  bring  in  the  market.  And  if  it  should  not  be  convenient 
for  the  defendant  to  make  the  payment  in  these  notes,  he  was  per- 
mitted to  make  it,  by  the  contract,  in  any  other  depreciated  notes 
of  ecpial  value.  The  defendant  failed  to  make  the  payment  at  the 
time,  and  is  he  now  bound  to  ])ay  the  nominal  amount  of  these 
notes  in  specie  ?  What  damage  has  the  ))lainti(T  sustained  by  the 
non-payment  ?  Certainly  not  more  than  the  value  of  the  notes,  it' 
they  had  been  paid."  ^  And  the  actual  value  of  the  notes  was  held 
to  be  all  the  plaintiff  was  entitled  to  recover.^ 


1  Aldcn  V.  Rl:ir;uo,  Cro.  Jac.  99;  Kaye     firmed  by  this  case  in  the  United  Slates 
r.  Waghorne,   1  Tuiuit.    4'28  ;    Bayley  v.     Su|ir<'nio  Court. 


Homan,  3  Bing.  N.  C.  015 

^  Rradly  v.  Gregory,  2  Cainp.  383. 

8  Robinson  v.  Noble's  Administrators, 
8  Peters,  181. 

*  Ibid.,  at  p.  199.  And  see  our  view, 
ill  note  2  to  p.  10,  ante  (at  p.  14),  con- 


»  Oourtois  t'.  Carpentier,  1  Wasli.  C.  C. 
376,  is  a  case  where  a  note  was  made  in 
Guadaloupe  for  7812  livres,  ])ayat)le  in 
sugar  as  money.  Tlie  court  hehl  that, 
the  action  liaving  been  brought  in  this 
country,  the  judgment  could  not  bo  ivn- 


PART  I.J 


"^"•^T^SASALE? 


31 


'•-•^-•'-l  a.,,v,.„  o  e,t^^7;  '*/!>P<"ar.,  ,,t  /  ^^^  "'e  block- 
•""^""'f  clue  ior  fi.e  ,,,,^,^'^'^  ^  <^nfo(lt.rat(.  homh  i!  '""""^''"g  dl- 
^^■'^''  '''^'amount       f/?''-''^*"'^  ^''at  M.o  «  n       '  V'''"'^''*  «f  the 

"""'^'  '-^^  take,,  f  c^„    ;  r  ^^^V'''''"''^'"'''^'n''n  T.^^1^^^   ^''  '^''  '»^^"«- 
''"■''  "cooptod,  u-ore  s^  ..       """'>'•     '^'''^  bonds         i       "'  '*"'>'  «« 

•^^'••'.vs  entered  as   ;'''"'*'^'-  ^'•^'*'ited         ?   '        ''''^''"^"^  "«  pay- 

""".  "■'•''''^"  after  t^;:'*'  ''"'^  <''^'  'ettc.-  oV  t'  .     '  ^"''"^  '"  ^''^^ 
''•■'"'  '"  M,«,.,.  ,„„  ..r    '   "'"'«^»«^'o»-'  ^        i'^^' fanned,  did  nol 


"0  use, 


If  Im   ! 


I     M 


i 


I?.  hi' 


.88 


COMMENTARIES  ON   SALES. 


[book 


Resulting  from  tlic  sale  being,  as  properly  defined,  a  contract  or 
ayrcement  between  the  parties  tliereto,  the  general  law  of  contracts 
as  far  ns  ai)[)licablc  to  sales  applies.  Hence,  at  conuuou  law,  it  is 
of  the  essence  of  a  sale  that  there  bo  (1)  Parties  to  tlio  sale  com- 
petent to  contract ;  (2)  The  mutual  assent  of  such  parties  to  the 
terms  of  the  sale  ;  (3)  A  lawful  subject-matter  of  sale  ;  and  (4) 
A  legal  consideration  for  the  sale  which,  as  wo  have  seen,  may  be 
either  (r«)  money  ;  (/»)  the  representatives  of  money,  as  an  order 
or  promise  to  pay  money,  contained  in  a  draft,  bill  of  exchange, 
check,  bond,  promissory  note,  or  duo  bill ;  or  (^.•)  labor,  or  spe- 
cific articles  of  goods,  or  stock.  The  transaction  amounts  in  the 
cases  where  the  payment  is  in  something  else  than  money  in  its 
strictly  technical  sense,  to  a  double  sale,  both  of  the  parties  being 
sellers  and  buyers  ;  the  subject  of  such  sales  l)eing  the  personal 
property  sold,  on  the  one  hand,  and  the  bill  of  exchange,  etc.,  or 
the  stock,  or  the  specific  articles,  received  as  an  equivalent,  on  the 
other.i 


but  neverthnlpss,  nltliouf^h  we  iiuliiccd  yoii 
to  give  us  ti'ii,  you  inii.st  now  piiy  flOOO 
as  if  Wi'  hail  taki'u  iiotliiiif,'  whiituvi'i'.'  In 
tliis  case  tlioy  were  at  lilierty  to  take 
money  or  money's  woitii.  Tiie  lioiuls  were 
money's  worth, and  tiiinj^s  wliieli  they  could 
have  turned  into  money  any  day  tliey 
tliouf;ht  fit.  It  suited  their  convenience 
to  take  the  money's  worth,  uiul  liaving 
done  so,  by  tliat  transaction  in  my  o])in- 
ion  tliey  are  com|iletely  bound.  I  cannot 
imagine  a  more  unconscionable  claim,  and 
I  should  never  liave  allowed  it  to  be 
brought  forwanl  if  I  had  been  appealed  to. 
I  am  perfectly  satistied  uiion  the  evidence 
it  was  the  intention  of  all  parties  to  con- 
clude the  transaction,  as  tho  documents 
show,  by  handing  over  the  shares  as  actual 
payment  and  not  by  way  of  security.  It 
is  a  payment  which  they  were  on  their 
side  at  liberty  to  accept,  and  having  been 
accepted  in  the  concdusivo  manner  which 
I  have  stated,  the  transaction  was  thereby 


concluded,  and  therefore  Haron  Schroder's 
name  must  l)u  taken  olf  tlie  list  of  contri- 
butories." 

A  transaction  between  the  coTujiain  niul 
a  shareholder,  not  literally  aniouii'  z,  to 
))ayment  in  cu.nIi,  was  treated  as  i  in 
//(.  re  I'aragnassa  .Steam  Tramwa\  ■»!- 
pany,  Adanison's  Case,  L.  U.  18  Kii.  07(1. 
And  see  Bush's  Case,  L.  W.  'J  Ch.  554  ; 
Terrao's  Case,  L.  1{.  9  Cli.  355  ;  Druni- 
mond'sCase,  L.  1!.  4  Cii.  772  ;  I'eH'sCase, 
h.  \{.  5  Cb.  11  ;  In  n:  IJaglan  Hall  Col- 
liery Co.,  L.  U.  5  Ch.  352  ;  Vice  Chancel- 
lor Malins'  judgment  in  note. 

1  Every  case  of  set-olf  is  in  principle  a 
double  sale  or  barter  ;  no  money,  which  is 
the  mere  representative  of  value,  being  paid 
in  either  case ;  the  goods  on  the  one  side 
being  set  otf  against  the  goods  on  the 
other,  making  that  kind  of  transaction  re- 
ferred to  in  Salkeld  (see  ante),  in  which 
each  of  the  parties  is  a  seller  und  each  a 
buyer. 


wei  ii.J 


oins  DisTiNooisneo. 


BOOK  I. 

PAUT  II. 
GIFTS  WSTWGUJSIIED. 

£:^^:ir  "^^o:^;f  £-^^^^^^^^ 

1  Atk.  aru  ■    I?;.,     ,   '    ^"(-'"s  V.  Lucas      ,Y.iv^'°"'"    t-'.  Blown     ot    i,    , 

V.  lk\hnd<r,'r ,  '•  ,\6  Eq.  340 ;  I{i,ha  •  J,     f  '""^'ent  asst-ts  of  A.,  but  ^r,,'"''^'''"''  ^'"d 

17  Ch.  JJ  v'  4lf '  /«  '■«  B't-toii's  J-w"'     i"-''^^"   l"»il  ;   it   was  h,.|       r/'°/  ^''^■Inff 

J*I-&  \V  802    ',;   '  ^^ '•"•''  "•  ^u<l  aS  ifi       "'°,""'  "'■  tl'o  cJ.So      S      T"",-  "I'  f'e 
«''»-  381     ^,;J,''''"  ^- 'i'l'ornton.     c;   5"    f   f°"?.   1   My.  F  'r  t';«''''^°  ''-Iwards 

1  C'  1.  05  .  *>„  '^  .   -'ones  V.  Lock     I     i>  '    '•'''c  c  Hilli,.,t   o  i"  "'/  ^i-  I^.  C'as, 

^^ves,2  Ir    \%'°'"'%.52;  Adams..'    f  k'^J'^i ''V^^'•'»'''^■•'''/I^^•.^G's     TT^^^^^^^^^ 
,'^'"-  117:  AI1(„.;  I.  ?'■  ^"ns  V.  Sims   2     T-   o^*''  ^^-  ^^-  «  '^-l    19S  •    i^^  '  ^^"'''^^ 

L.ncoI„,  31  Me  42V-  f?""'"'  ^^^  •  ^°Ie  •^      Zi^i*^  ''  ^''"""''^v,  28  Boav  ofi     ,^^^ ' 
20  Vf    rnr     TF      ■^  >  '-'arnentpr  m  n„  i  fo'J  f.  Lawson    i    J>  ii'-       "'"V.  yo;  Law- 


Lincoln.  31  m:72V.?/^^'^^^ ^^0!?  .^    ^^^'f'^  ^'-  ^•''-"'-.    8  Bav^^"^:  / 

vc.  f '  ^""^-  -  Hunter,  TV,'.     E^V'Sz'  ^'f'  ^-'-  ^'^  =  1  Wms 

3  '''^'""^  """Monties  there  dtS 


.'! 


•  u  ;1 


on 


11  'J  I 

t 


84 


COMMENTARIES  ON   SALES. 


[book  1. 


misimiircssion  has  been  produced  as  to  the  essentials  of  a  donatio 
mortis  causa,  particularly  with  reference  to  the  state  or  contlition 
of  the  donor's  health  at  the  time  of  making  the  gift.  So  many  of 
such  gifts  have  been  made  during  illness,  that  the  mistake  has 
been  made  that  a  "  last  sickness  "  is  one  of  the  essential  ingredi- 
ents of  such  a  gift.  Jhit  this  view  is  entirely  unwarranted.  The 
very  etymology  of  the  term  makes  this  deai- :  donatio  mortis 
eau8(t,  —  a  gift  in  ])rospect  or  contemplation  of  death.  Thus 
Kent^  says  of  such  gifts:  "  It  is  essential  to  them  that  the  donor 
make  them  in  his  last  illness,  or  in  contemplation  and  expectation 
of  death."  So  in  White  and  Tudor's  note  to  Ward  /•.  Turner,'-  it 
is  laid  down  that  "the  gift  must  be  made  in  contemplation  of  the 
conceived  approach  of  death  i'^  otherwise  it  will  not  be  a  good 
donatio  mortis  eaiixd.^''  *  "  But  a  gift  will  be  presumed  to  be  in  con- 
templation of  death  Av here  the  donor  is  '  in  his  last  sickness' or 
'languishing  on  his  death-bed.'  "  '' 

With  these  vjews  we  entirely  concur  ;  and  therefore,  within  this 
principle,  a  gift  "  in  contemplation  of  death,"  from  whatever  cause, 
providing  it  is  one  of  imminent  ])eril,  would  be  valid  as  a  gift  mor- 
tis caiisd,  if  nuule  for  the  ])urpose  of  being  engaged  in  battle,  by 
one  "  going  to  the  front ;"  ^  or  by  one  proposing  to  commit  sui- 
cide, if  the  intention  is  then  carried  out;'  or  by  one  incurring 
the  iunninent  danger  of  death  in  any  other  way,  voluntarily  or 
involuntarily. 

Thus  on  the  clearest  principle  involved  in  the  matter,  if  one  is 
about  to  jump  over  Niagara  Falls  to  test  his  ability  to  do  so  safely  ; 
or  to  descend  into  a  coal-j>it  at  the  imminent  risk  of  his  life  to 
save  the  lives  of  others ;  or  to  stick  to  a  sinking  shi])  in  order  to 
make  room  for  another  in  a  boat;  and  make  a  gift  in  the  pros- 
pect or  expectation  of  death,  the  gift  is  clearly  as  valid  a  donatio 
mortis  causd  as  though  made  on  a  sick  bed  in  contemplation  of 


i  2  Kent's  Com.  444. 

«  1  l,i'a.l.  C'lLs.  in  Kii.  ^S;?,  6[>0. 

'  Dulli.'l.l  V.  Klwes,  1  Hli;,'li,  N.  .s.  .f.SO  ; 
EdwitnlH  V.  .loncs.  1  My.  &  Cr.  '2'M,  'J;Ui. 

*  lU'ilf^'cs  I'.  lIi"l,i,'os,  Pnr.  Cli.  2C'J  ; 
Waltt'i' t'.  lloil^'c,  '2  s'wanst.  it'2,  JOO. 

6  Millor  c.  Mill.r,  ;i  I'.  Wins.  ar.()  ;  Luw- 
;,on  V.  Liiwson,  1  P.  Wnis.  441  ;  Wultor 
t>.  H()il<,'c,  2  Swanst.  ItiO. 

0  Si'o  Virj^in  o.  diitlu'r,  42  111.  30,  for 


coiiti'inpliitod  it,  not  as  the  ri'snlt  of  any 
ciicuinslaiu't's  of  |ii'ril,  artiial  or  conci'lvcil, 
Imt  as  icsultiiij;  from  ii  coiitcmiilatiMl  act 
of  sclf-tU'slrui'tion.  Jn  siir/i  case  l/inr 
mis  no  piril  to  his  lij'c."  [Tiiis  is,  <'(r- 
taiiily,  extraordinary  reasonini;  !]  "  'I'lie 
eoneeived  ii]i])roach  of  deatii  (.so  far  as 
it  nii;;ht  arise?  from  wliat  was  eontriii-' 
])Iiite(l)  wii.s  entirely  witliiu  his  own  ion- 
trol,  nnd  he  eseaped  from  the  peril  (  nul 


a  conditional  f^ilt,   not  strietly  ti  donatio  ,so  the  condition  of  the  jjift  failed),  evrry 

mortis  cunsA,  lait  closely  akin  to  it.  moment  that  ho  refraineil  from  the  i\v\  nf 

^  The  reverse  was  heltl  in  a  badly  do-  destrnetion."     And  tlie  note  ([noted  hy  us 

cidod  ea.se  in  the  Province  of  New  Hruns-  above   from  White  and  Tudor  is  aitii.illy 

wick,  Karle  i;.  l?otsford,  2:!  N.  P>.  1!.  407,  ([noted  ns  tlie  authority  for  this  exlraoidi- 

in   which  that  court  f,'ive  this  extraordi-  nary  reasoning  I    It  is  only  just  to  observe 

nary  reason  for  their  dei'ision  :     "  The  de-  that  but  three  of  the  junior  inendiers  of 

ceased  may  Inive  eotitem]ilated  his  deatli  the  court  took  part  in  the  judgment, 
when  he  made  the  alleged  gift,  hut  ho 


PART  II.J 


GIFTS   DISTINGUISHED. 


(k'lxth ;  .jiid  in  eiflior    f       i  ■ 

-'""-■  essence  „f  »;;„,  ",  [/'."f '      "-""I'l   I'o  acco„,,  °  ,-,  f?  ' 

'«■  •••".>■  otlmr  ;J,  0      ;  "'■;   ."/'/"v/i,.,,,/,,,  ^,,„„,    ,t™  .  ■ ,  '•»  'lPI"-o- 
lirps«M  n,„(-I  ^  Piff '"'.T  ,.,•,■„,  ,„.„.  ,       "^  ""'"  sickiicsa 


lors. 


/{lit 


in  <J 


;''f '>'  <'!•  <lo;,fI,,  if  it 


'^i^t  of  J 


"«  I'foperh- 


;^7<';^MeroIort,,;f,,   ^j 


"s    (WSO,    <] 


'    "'0    CoiKjifi 


'li:i(  if  <i,e  ,j 
be 


oiior 
coiuc  the 


l^'  pUiium  Willi  <I 


['^  »"<  in  fniu.l  „f  I 


111 


lis  civd- 


'".^^  oxpros.secl,  an.l    t] 


*''''*^  ,U-ot  kill,.,/ 
|""*M'<''"f>'  of  the  ,J 


'^'  condition 


J I 


,  or  n,.v(.i. 


ere. 


c\[)ro.s.so,i 


t'jKV,    tl 


(IdllC 


:  :;  ':t^  ^-^'''i  ti,,,t  <i 


^  CN pressed 


oiu-o.     JliM-e,  tl 


oiinu;  back,"  t] 


K'V 


c<>n(,i!iH-^,„(.y   J 


'  '"L'  condition 


K'  liorsoi 


"IVm.ir      f;il, 


Ken 


,  and  no  ('oiidii 


"'''"  "»  .'ibsolutc  -ift 


nit 


'"»  ('-vpi-osst-d,  tl 


y  vcslc'd   in   tlio 
^^t'»  a  gift  of 


'■^  ''"'"-V ;  and 


iiilt 


»iorfin  C(fu 


f!f'»^  lulled,  and 


•"'■"»  '■evocabi 


om  enlisting  ior< I 


(as  tJi 


c  M-ift  would  Jiavo  cl 


<-''■«  wjis  no  i 


this  d 


«  •»  event  of  ^l^^,  ^| 


ic  war)  not 


stinction  bet 


coining  back.    Tl 


'"•or  not  dvin. 


early 

inniiiient 
ii  condi/ioiijii 


w-^'cn  gifts  i//^t. 


-3^-Ii.R.  jor. 


"^^v-e  think,  cleailv  ill 
>•  v<yy»  und  gifts 


not 
"«trate8 


niorttf,  causd. 


<2  111.  39. 


n 


i 


ill 


86 


COMMENTARIES  ON  SALES. 


•' 


[book  I. 


In  Pennsylvania  under  facts  very  similar  to  those  in  Virgin  v. 
Gaither,^  the  gift  was  held  invalid,  as  not  made  in  contemplation 
of  death;  in  expectation  of  deatii,  or  apprehension  of  death  ;  and 
was,  therefore,  an  abortive  attempt  to  make  a  testamentary  dis- 
position by  parol.^ 

We  have  nowhere,  either  in  England  or  in  this  country,  met 
with  so  masterly  an  exposition  of  the  law  on  the  subject  of  do)ui- 
tiones  mortis  causd  as  by  Mr.  Chief  Justice  Gibson  of  Pennsyl- 
vania, in  Nicholas  v.  Adams,^  which  so  exactly  meets  our  view  of 
the  law  on  the  question  (which  has  been  involved  in  confusion  and 
doubt  from  the  loose  expressions  of  courts  and  text-writers,  in  the 
most  unwarranted  manner),  that  we  quote  at  length  from  his  very 
able  and  conclusive  judgment.     lie  says  :  — 

"  Perhaps  the  best  definition  of  this  species  of  donation  in  the 
books  of  the  civil  law,  and  the  one  which  best  corresponds  to  the 
best  impressions  the  subject  has  received  from  the  Anglo-Saxon 
jurists,  wiio  seem  to  bo  returning  to  the  point  from  which  tlioy 
started,  is  that  which  is  found  in  Justinian's  Institutes,  Lib.  2,  tit. 
7 :  '•  M'lrti^  causd  donatio  est,  quod  propter  mortis  Jit  suspicionem, 
cum  quis  ita  donate  ut  si  quid  kir.rutnitas  ei  C07iti[fissef,  haheret  is 
qui  accepit  ;  sin  autem  supervixessct,  is  qui  donavit  recipei'ct,  vel  si 
eiim  donationis  pcenituisset  aut  prior  dccesseret,  is  cui  donatum  sit.^ 

"Not  a  word  in  any  part  of  this  about  sickness,  first  or  last. 
Contested  death-bed  donations  are  of  such  occurrence  in  the  courts 
as  to  have  superseded  all  others,  and  to  Iiave  grown  in  the  apprc- 
licnsion  of  the  judges  from  a  species  to  a  genus  ;  and  hence  the 
notion  that  they  arc  referable  exclusively  to  denlh-bcd  sickness. 
If  made  in  sickness,  it  must  necessarily  be  the  last  sickness  ;  for 
the  contingency  happens  adversely  to  the  donee,  where  the  donor 
is  restored  to  health.  But  this  not'oii  seems  to  be  yielding  to 
more  ^comprehensive  principles. 

"  In  his  treatise  on  Legacies,  p.  2(),  Mr,  Roper,  whose  accm'aoy 
as  a  text-writer  is  creditable  to  him,  says  it  is  necessary  that  tlio 
gift  be  made  in  peril  of  death,  or  during  the  douor's  last  iUursx, 
and  to  take  effect  only  in  case  he  die.  This  would  be  critically 
correct  were  it  not  redundant  in  one  particular,  and  too  narrow  in 
another  ;  redundant,  because  it  is  indiU'erent  whether  the  i)eril  of 
death  be  induced  by  sickness  or  anij  other  eause.  Thus,  the  jioril 
past,  the  gift  of  a  soldier  or  malefactor  might  be  retracted,  thoimli 
made  in  perfect  health,  when  going  to  execution  or  to  bnttlo. 
But  his  position  is  also  too  narrow  in  one  particular  ;  iov  a(/roitn<J- 


»  42  111.  39. 

2  Gourley  v.  Linscnbiglpr,  51  Pa.  345. 
And  see  Mitchell  v.  Smith,  33  L.  J.  Ch. 


596  ;  Smith  v.  Doisey,  38  Ind.  451 ;  Iiisli 
V.  Nutting',  47  Barb.'370. 
8  2  Whart.  17,  21. 


PART  II.J 


i 


GIFTS  DISTINGUISHED. 
^ess  apprehension  of  den f  I  •  37 

?ift  conditional  anifTy^  necessarily  as  nun.  .• 

<•««(«  ™„„j  „,„,,,.   7»"'-'l-    I  would  theroW  h  °  a    fc'Wiuus 

ii'oro  may,  doubtless  h.  ''^^' 

expected;   but  in  tbol  ""  ^onditiojial  o-if. ,  , 

/"■-«-^and  the eon'toT''  *'^  ^-"''^'o"  -o.  dT"  '"^'^^  '«  "«* 

'■"  1,'erou.s  t],in,r.s.-     i'."f,.,    '  ^''i/iitioiis  are 


Gibson  Jiimcjpif 
^"' \,:"-"'^  ''-m  ti...  X:;l^'-  -"tin.  5  fe,^^:, J^- J  U   3,  4,  5,  6 


»«;», .,,,1  ,„  i  ,,*;,"; '7 1. .v„;,i„; 


1/1 


tum 


'  I. 


88 


COMMENTARIES  ON  SALES. 


[book  I. 


•:■'  I 


The  donatio  is  simply  a  conditional  gift  made  in  contemplation 
of  death  by  whatever  cause,  whether  an  existing  disaster  or  an 
impending  peril ;  and  if  there  be  a  failure  of  the  condition,  by  this 
expectation  of  death  not  being  realized,  the  gift  is  revolied.  It  is, 
therefore,  manifestly  immaterial  wdiat  mode  of  death  is  contem- 
plated ;  tlie  failure  of  the  contemplated  deatli  is,  per  «e,  a  failure 
of  the  implied  condition,  and  works  a  revocation  of  the  gift. 

This  is  simply,  notwithstanding  tlie  contradictions  and  confu- 
sion of  some  of  the  cases  and  text-books,  all  that  a  donatio  )nortis 
cnuHtt  amounts  to.  Thus  further,  in  Dickcschied  v.  Exchange 
Bank,^  the  court  "ny  :  "  It  is  well-settled  law,  that  without  appre- 
hension (jf  death  from  some  present  illness  or  impendini)  peril, 
and  death  actually  resulting  from  such  illness  or  impending  peril, 
no  gift  rausd  mortis  can  ha  created." 

Tlie  donor  must  part  with  all  dominion  over  the  property,  so 
that  no  further  act  of  him  or  of  his  personal  representative  is  ne- 
cessary to  vest  the  title  perfectly  in  the  donee  ;  to  belong  to  him 
presently  as  his  own  property  in  case  the  owner  should  die  of  his 
])rcscnt  illness,  or  from  the  impenditi;/  peril,  during  the  lifetime  of 
tbe  donee,  and  without  making  any  change  in  relation  to  the  gift.'- 

In  IJaskctt  v.  Ilussell,''  Mr.  Justice  ^latthcws,  delivering  the 
judgment  of  the  Supremo  Court  of  the  United  States,  says  :  "  A 
donatio  mortis  causd  must  1)0  completely  executed,  precisely  as 
required  in  the  case  of  gifts  inter  vivos,  subject  to  bo  divested  by 
the  happening  of  any  of  the  conditions  subsequent,  that  is,  upon 
actual  revocation  by  the  donor,  or  hy  the  donor^s  surviein;/  the 
apprehended  peril, or  outliving  the  donee,  or  by  the  occurrence  of 
a  deficiency  of  assets  necessary  to  pay  the  debts  of  the  deceased 
donor.  These  conditions  arc  the  only  qualifications  that  distin- 
guish gifts  mortis  causd  and  inter  vivos.'"  * 

We  think  it  clear  that  the  rule  of  the  common  law,  as  of  the 
civil  law,  is  as  laid  down  by  Justinian,  which  is  quoted  approv- 
ingly by  Lord  Chancellor  Loughborough  in  Tate  V.  Ililbert;*^  ami 
that  the  language  of  some  of  the  old  English  cases,  and  of  soine 
of  the  text-books,  that  the  gift  can  only  be  made  "  during  a  last 
illness,"  cannot  be  sustained.^ 

In  Williams  v.  Guile,"  (a.  d.  1889),  a  gift  of  a  policy  of  insur- 


1  2S  W.  Va.  340,  367. 

'■'  BonitMiiiui  V.  SiiUi'iigcr,  15  Mo.  42D  ; 
Wells  V.  Tucker,  3  lUiiii.  SOO;  C;irtant  t'. 
Seliuyler,  1  I'aij^e,  316  ;  Oiiines  v.  IIowo, 
41)  N.  Y.  17  ;  Dole  v.  Liueoln,  31  xMe. 
4'22  ;  Kicliaiilson  v.  Ailanis,  10  Yc'Vf;. 
273  ;  Sims  v.  Walker,  !>  Humph.  503  ; 
Gass  V.  Simpson,  4  Cold.  (Tenn.)  288  ; 
Clough  V.  t'lough,  117  Mass.  83. 


8  107  TT.  S.  602,  615. 

*  See,  also,  1  Story's  Eq.  Jur.  607- 
6  2  Ves.  Jr.  111. 

*  In  Louisiiuia,  a  donatio  mortis  C'li^a 
can  only  be  made  by  a  will  anil  testaiii'iit, 
and  takes  effect  wlien  the  donor  ecasc^  to 
exist.     Johnson  v.  Waters,  HI  U.  S.040. 

'  2  N.  Y.  St.  Kep.  251. 


PA 

an( 

.sUi 

me 

par 

acti 

j)ai 

gift 

Cj-j 

took 

conti 


in  < 

gi 

mu 


ft 


St 


^  U  Mo.'. 
'  27  Meav 
*  I'rec.  in 


:! 


PART  II.J 


GIFTS  DISTINGUISHED. 


89 


anco  made  by  the  donor  about  ^iv         ,     . 

•sushunod  by  the  New  York  Cot t"  T  '^'^'^"''^  ^'«  ^^^^th,  was 
men   of  tl,e  Supreme  Court     Thl      ^'^'f'^  ''^"''''"'"g  the    udt 
i'aralysis  previously;  but  he  Wo  ^'^f  ''^^^  ^'^^  two  strojces  f; 
aet.on,  and  about  ^  weis  ^on  ani    .:^"'^  ^''"^  °^  "-     -  - 

a  alysis,  with  which  he  lin.^ered  ^  ?  1         ^'?^  '"^  ^'^'''^  attack  of 

«  ft  was  sustained  as  a  good  '^if     ;     ^V'  ^=^^^"«  ^»<'  died.     The 

-ymes  ..  IlarcV  a  gift  made  h^^  ^f "  T''''  """^'-     So  in 

took  j.hico,  was  sustained  as  n  riu  '  ^''^^'"c  the  donor's  donfh 

continued  ill  f.o^n  the  til?  h     ;'^^t7'--f-^•  t'^e  dono.  ha  ^^ 

■'on  and  expected  to  li^; It  a  ht?,. ''^'r"°'"  ^^^^  ^»  of  consumn 
!Hl  afterwards  got  better  and  ,      .jlf^V-''?"  ^^  -^^o  t]  e  ^X 


in  Kankm  v.  Wof^uclin  3  fi.„  V 

«:»;.  of  dca.l,"gavo  J  o'dotda""tVf '?'?'""'»'•"»  •'•PPrel.cn. 
'jiJ's  of  excliano-o      Tf  i    "''^'-"^ant,  a  fortn  irlit  bofm-n  i  •    '  "^" 

"■"-  ".0  do,r;as  i     ''5.';:  "°A»H'oar  fro,,,-,,,    t    * «   ^'.1''' 
"  ff'ft  of  a  bond  for  X1M,„,V    ,"""'■ ''''  aPPoa,'i,„r ,,..  h'=™ 

have  so.„o«,i„,-r"  i,o  ImUfulu^T''  •'""J  "'<-'"  y™  I'm 


'4nN.  Y.  ir. 

^  j:/  l>eav.  309. 
i  roc.  in  Ch.  300. 


'  2  P.ro.  C.  C.  612 
J'3Atk.214. 
;  J  Bro.  r.  c.  71. 


I      (J 


:  I 


■i''.' 


'.  T 


;! 


;. 


P  I  i; 


40 


COMMENTARIES  ON  SALES. 


[book  I. 


9'    :iH* 


a  gift,  made  twelve  days  before  death,  without  any  allegation  of 
illness  at  the  time  the  gift  was  made,  may  be  sustained  as  having 
been  made  in  contemplation  of  death.  Smith  v.  Smith  ^  shows  a 
similar  absence  of  any  statement  of  illness  at  the  time  of  the 
malcing  of  a  gift,  which  was  sustained  as  a  good  gift  mortis  causa. 

In  Edwards  v.  Jones,^  tlie  g'  t  failed  as  a  donatio  mortis  causa, 
because  the  court  held  that,  among  other  causes,  the  donor  was 
not  in  such  a  state  of  illness,  or  expectation  of  death,  as  would 
warrant  a  supposition  that  the  gift  was  made  in  contemplation  of 
that  event.  And  in  the  old  case  of  Duflicld  v.  Elwes,^  it  was,  in 
equivalent  language,  laid  down  by  Lord  Eldon,  that  nothing  could 
be  "  more  clear  than  that  this  donatio  mortis  causa  must  be  a  gift 
made  by  a  donor  in  contemplation  of  the  conceived  approach  of 
death."  So  Burns' definition  is :  ^^  Donatio  causa  mortis,  or  a  gift 
in  prospect  of  death,  is  where  a  man,  moved  with  the  consideration 
of  his  mortality,  doth  give  and  deliver  something  to  another,  to  be 
his  in  case  the  giver  die,  but  if  he  lives  he  is  to  have  it  again."  ^ 

But  while  it  is  manifest  that  some  of  these  old  English  cases 
cannot  be  sustained,  wlierc  the  gifts  do  not  seem  to  have  been 
made  in  what,  within  the  rule  as  to  donationes  mortis  causd,  is  an 
apprehension  of  death ;  on  the  other  hand,  the  tc  Mvriters  who 
have  laid  down  the  rule,  in  effect,  that  the  contemplation  of  death 
must  be  that  ^'■from  an  existirig  disot'der,"  or  "  if  a  gift  be  not 
made  by  the  donor  in  peril  of  death,  ^.  e.,  with  relation  to  his 
decease  by  illness  affecting  him  at  the  time  of  the  gift,  it  cannot  be 
supported  as  a  donation  mortis  causd^''^  is,  as  we  have  shown, 
equally  as  wrong  in  tlie  opposite  direction. 

This  citation  from  Willi;. ms  is  the  authority  n'hich  misled  the 
junior  members  of  the  New  Brunswick  court,  in  the  unsound  de- 
cision of  Earle  v.  Botsford,*'  to  which  we  have  previously  referred. 

But,  in  the  note  to  Williams,^  it  is  said,  "  In  Blount  v.  Burrow, 
as  reported  in  1  Ves.  Jr.,  546,  Eyre,  C.  B.,  seems  to  be  of  the  opin- 
ion that  there  must  be  positive  evidence  that  the  gift  was  made 
in  the  last  illness ;  but  this  dictum  is  not  found  in  the  report  of 
the  case  in  4  Bro.  Ch.  Cas.,  72,  and  does  not  seem  supported  hy 
any  other  authorities.''^  In  Edwards  v.  Jones,**  however,  it  is  said 
by  Vice-Chancellor  Shadwell,  that  "  It  is  of  the  essence  of  a  do- 
natio mortis  causd  that  the  gift  shall  be  proved  to  have  boon 
made  in  contem))lation  of  the  donor  shortly  terminating  life  f'y 
reason  of  extreme  sickness  or  extreme  old  age."  But  this  was  1)iit 
an  obiter  dictum,  and  unquestionably  is  not  law  by  the  civil  law, 


1  2  Str.  955. 
a  1  Myl.  &  Cr.  226,  236. 
8  1  Bli.  N.  s.  4St7,  530. 
♦  4  BuruB'  Ec.  L.  110. 


»  1  Wms.  on  Ex'rs,  771,  7th  ed. 
6  23  N.  B.  R.  407. 
^  Note  r.  to  1  Wms.  on  Ex'rs,  771. 
8  7  Sim.  325. 


oil 

licl 

is 

will 

dot] 

ma  I 

wlu 

law 

niorl 

is  ki 

niak 


agc; 


P4RT  IJ.J 


GIFTS  DISTINGUISHED. 


nor,  as  derived  from  tlio     •  -i  i  ^^ 

tlefcasance  to  tUn  .'^^^^^^y  of  the  donor-  ,•«  „  "'"'tulifr,  but 
'"^'v  bo  con/ IT  ^"^^^^'^'••e^,  would  be  otJ  .  -"'"'^^  ^y  ''^^y  of 
^^■J^e,-o  the      "!^/"  '"  ""mediate  illness  r       "•''  '''^"''^^'^''-     it 

"loro  hazardous  tha,  '  ^^'''"^^  ^  Journey  wbiVl.  ?•  ^^''"^^'^'^ 

do/easaneo  a.  7stf  t"  .T  '"'''''^  '^^  ^^-^e,  ..'.t  tl  '""'^^  "'-» 

eC'      ^'"""'^'"ese  haughty  ones 


2  2  Ves.  Sr.  431,  435 

3  ^'-«  !>■  438.  •"• 

'V'O    I),^,.    J^j'l        g  ^      „       „ 

'/  01  tile  smtors  of 


;)•(!'/ 


•f 


>    it 


i 


It   -'{] 


,( 

! 

'i 

■  ( 

5, 

t 

1  :[ 

i 

i" 

;  i 

1 ! 

i 

I 


) 


42 


COMMENTARIES  ON  SALES. 


[book  I. 


In  "Walter  v.  Ilodge,^  Sir  Thomas  Plumer,  M.  R.,  says :  "  Nor  is 
it  nGcessary  that  the  donation  should  bo  in  the  last  illness.  It  is 
suflicient  if  made  in  contemplation  of  death,  and  on  the  conditions 
stated."  In  Tate  v.  Hilbert,^  the  definition  of  a  gift  mortis  caund 
by  the  civil  law  is  recognized  by  Lord  Loughborough  ;  i.  e.,  where 
a  person  heing  in  peril  of  death  gives  something,  but  not  so  that 
it  shall  presently  bo  his  that  received  it,  but  in  case  the  giver 
dies  ;  and  the  definition  of  Justinian,^  as  quoted  by  Chief  Justice 
Gibson,  in  Nicholas  v.  Adams,*  was  held  to  be  a  clear  and  correct 
definition  of  a  gift  mortis  causd. 

So,  in  Parish  v.  Stone,^  Chief  Justice  Shaw  accurately  states 
the  law  thus  :  "  It  is  now  well  settled,  that  under  certain  )'mita- 
tions  a  gift  may  be  made  by  one  in  present  contemplation  of  death, 
of  money  or  other  property  capable  of  passing  by  delivei  that 
to  give  effect  to  such  a  donation  there  must  l)e  a  clear  and  mani- 
fest intention  of  the  owner  to  give  a  subject  capable  of  passing 
by  delivery,  and  an  actual  delivery  at  the  time,  in  contemplation 
of  death ;  that  such  a  gift  is  inchoate  and  does  not  become  per- 
fect till  the  death  of  the  donor ;  that  it  is  revocable  by  the  donor 
during  his  life,  and  if  he  recovers  from  the  sickness  or  other  cause 
of  apprehended  death,  under  which  the  donation  is  made,  the  gift 
is  void.  But  where  there  is  such  a  gift  and  actual  delivery,  and 
the  expected  death  of  the  donor  ensues,  the  gift  is  complete,  and 
vests  the  property  in  the  donee,  presently,  without  its  vesting  in  or 
passing  through  the  executor  or  administrator,  and  it  is  liable  to 
be  divested  only  in  favor  of  the  creditors  of  the  owner." 

Sessions  v.  Mosely,*^  is  to  the  same  effect.  And  in  a  more  recent 
case  in  the  same  court,  the  ruling  of  a  judge  was  sustained  to 
the  effect  that  to  establish  a  donatio  causd  mortis,  there  must  be 
shown  a  clear  and  manifest  intention  on  the  part  of  the  owner  of 
the  projicrty  to  make  the  gift ;  a  subject  capable  of  passing  by  deliv- 
ery, and  an  actual  delivery  at  the  time  in  contemplation  of  impend- 
ing death;  that  where  there  is  such  a  gift  and  actual  delivery,  and 
the  ex])ected  death  of  the  donor  ensues,  the  gift  is  complete,  and 
vests  the  property  in  the  donee  presently,  without  it  vesting  in  or 
passing  through  the  executor  or  administrator."^ 

In  an  article  in  21  Am.  Law  Rev.,  at  p.  740  (a.  d.  1887),  the 


Mj"  deatli,  clandestine,  under  my  own  roof, 

And  pnrcel  my  inlieritance  hy  llit, 

I  nitlior  wisli  tliese  treasures  thine,   than 

theirs  ; 
But  should  I  witii  success  plan  for  them  all 
A  bloody  death,  then,  wing'd  with  joy,  thy- 
self 
Brinj;  homo  these  presents  to  thy  joyful 
friend." 

1  2  Swanst.  92. 100. 

2  2  Ves.  Jr.  Ill,  119,  120. 


^  Institutes,  Lib.  2,  tit.  7,  Dc  Do.ia- 
tionihus. 

*  2  Wliart.  17,  21, stated  nvte,  reversin<; 
the  judgment  of  the  majority  of  the  court  in 
s.  c,  1  Miles  (I*a.),  HO,  which  sustained  a 
direotion  to  the  jury  that  a  donntin  caiiid 
mortis  must  b(!  made  during  a  last  illness, 

6  14  Pick.  198,  203. 

•  4  Cush.  87,  91,  et  scq. 

1  Clough  V.    Clougb,    117  Mass.   83. 


PART  II.J 


GIFTS  DISTINGUISHED. 


43 


law  is  well  stated :  "  The  first  requisite  necessary  to  constitute 
a  valid  donatio  causd  mortis  is  that  it  must  be  made  in  ])cril  of 
death.'  This  necessity  that  the  gift  should  be  made  in  contempla- 
tion of  death,  is  suthciently  obvious  from  the  very  title  of  the  gift, 
cansd  mortis,  —  for  the  cause  of  death ;  in  consideration  of  dcatli ; 
on  account  of  or  in  anticipation  of  death.  The  gift  must  be  made 
while  the  donor  is  under  the  apprehension,  fear,  suspicion,  or 
expectation  of  death,  near  at  hand.^  A  vague  and  general  impres- 
sion that  death  may  occur  from  those  casualties  which  attend  all 
human  at'tairs,  but  which  are  still  too  remote  and  uncertain  to  bo 
regarded  as  objects  of  present  contemplation  and  api>rehended 
danger,  is  not  sullicient.  Nor  that  the  donor  be  '  moved  by  the  gen- 
eral consideration  of  man's  mortality,'  as  is  usually  the  incentive 
which  induces  men  to  make  wills ;  but  he  must  be  under  some 
special  and  peculiar  danger  at  the  time.^  The  gift  is  ))resumod  to 
be  in  contemplation  of  death  where  the  donor  is  ^  in  his  last  sick- 
ness,' or  '  languishing  on  his  death-bed.'  *  It  is  not,  however, 
necessary  that  the  donor  should  be  really  suffering  from  some 
disease.  If  1i<i  is  in  danger  of  death  from  any  other  cause  it  ivill 
1)1'  i^KfJii-lcnt.''^  ° 

It  was  contended,  in  Dexhcimer  v.  Gautier,^  Hiat  a  gift  of 
bounty  money,  made  and  delivered  by  an  able-bodied  man  to  the 
ai)pcllant,  at  the  time  of  the  donor's  enlistment  into  the  United 


Williams,  J.,  says,  in  'Walsh's  Appeal,  122 
I'a.  177,  1S7  :  "All  gifts  arc  iieuussaiily 
inlii-  n'vii.t,  for  a  living  donor 'and  tlouee 
an;  iiidispL'iisable  to  a  valid  donation  ; 
Imt  wlii'n  the  deed  is  prompted  by  the 
Irlirf  (If  the  donor  that  his  diath  isimpcn-^- 
iri'j,  and  in  made  as  a  provision  for  the 
iloiu'o,  if  death  ensues,  it  is  distinguished 
from  the  ordinary  gift  inter  vivos,  and  is 
called  tliiiiifii)  mortis  causd." 

1  Diillield  i\  Elwes,  1  Bligh,  N.  s, 
r)30;  Knott  v.  llagan,  4  Met.  (Kv.)  99; 
Chamimey  v.  Hlanehard,  ."59  N.  Y.  Ill  ; 
IMwanls  v.  .lones,  1  My.  &  Cr.  233,  236  ; 
Wall<err.  Hodge,  2  Swanst.  97,  100. 

-  (Jiiurlcv  V.  lansenbigler,  .51  Pa.  345  : 
Wrston  r.  Ilight,  17  Me.  287;  Irish;'. 
Nutting,  17  Harb,  370 ;  Thompson  v. 
Tliomiison,  12  Tex.  327. 
j^  DixlR'imert'.Oautier,  34How.  (N.Y.^ 
472  ;  Smitli  r.  Dorsey,  38  Ind.  451,  and 
other  easi's  above  eited. 

*  Miller  V.  Miller,  3  P.  Wms.  35G  ; 
Walter  r.  I  lodge,  2  Swanst.  100. 

^  With  the  whole  of  the  above  we 
entirely  eoncur.  See  also  Wells  v.  Tucker, 
3  l')inn".  370,  per  Tilghman,  C.  J.  ;  Mich- 
oner  V.  Dale,  23  Pa.  St.  59,  63 ;  Gryme.s 
V.  Mnne,  49  N.  Y.  17,  20.  In  Irish  v. 
Nutting,  47  Barb.  370,  386,  387,  after  re- 


ferring to  the  statement  in  some  of  the 
authorities  that  a  gift  viort is  ca nsu  can  only 
be  made  during  a  last  illness,  the  court  say, 
]5acon,  J.  delivering  the  judgment :  "The 
modification  of  this  rule,  as  I  have  sng- 
ge^led,  relates  mainly  to  the  nearness  of 
the  ap{)roach  of  death,  and  I  think  there 
will  be  no  case  found  where  such  a  gift  is 
iijiheld,  in  which  there  was  not  iil/icr  juril 
ofdi'iithfroDi  some  en  use  imminent  and  ivi- 
jtcndimj,  or  the  eoneeivcd  near  approach  of 
nntaral  death.  It  is  not  indiiMl  neicssary 
that  the  party  should  be  in  extremis,  ac- 
cording to  some  of  the  earlier  cases,  but 
till-  gift  will  be  presumed  to  be  "in  contem- 
jilation  of  death,  when  the  donor  is  on  his 
death-bed,  or  languishing  in  what  proves 
to  bo  his  last  illness.  ...  A  vague  and 
general  impression  that  death  may  occur 
from  those  casualties  which  attend  all 
human  atlairs,  but  which  are  still  too 
remote  and  uncertain  to  bo  T'cgarded  as 
objects  of  present  conteni|)lation  and  appre- 
hended danger,  is  not  sullicient  to  sustain 
such  a  gift.  The  party  must  be  in  a  con- 
dition to  fear  approaching  death  from  a 
proxim(dc  and  impcndimi  prril,  or  from 
illness  preeedinq  cxpeeted  dissolution," 
6  34  How.  i'r.  (N.  Y.)  472. 


5r'    I 


m 


MM 


!'• 


1:1 


;i«  ii 


44 


COMMENTARIES   ON   SALES, 


[book  1. 


States  Army  in  18G4,  after  he  had  successfully  passed  the  exami- 
nation made  by  the  surgeon  with  regard  to  his  health  and  fitness, 
was  ii  gift  mortis  causd.  The  appellant's  answer  rested  solely  on 
the  claim  that  it  was  such  a  gilt.  The  majority  of  the  court  held 
(Barbour,  J.,  disserting,  who  held  that  the  gift  was  good,  mortin 
causa)  that  the  gift  alleged  in  the  answer  was  an  alwoluto  one, 
or  void.  Chief  Justice  Uol)ertson,  who  delivered  the  judgment 
of  the  majority  (himself  and  Garvin,  J.),  said:  "Death  by  any 
casualty  at  any  time  did  not  render  it  a  donatio  mortis  causa,  be- 
cause it  was  inevitable.  No  case  is  to  be  found  of  a  donatio  mortis 
causa  unless  by  some  imminent  jjcril,  and  when  that  has  passed 
away  the  giver  has  a  right  to  revoke  it.  It  is  immaterial  whether 
such  a  gift  be  a  conditional  one,  dependent  upon  the  escape  of  the 
donor  from  impending  peril,  or  a  revocable  one,  dependent  upon 
his  death  thereby,  without  any  revocation,  or  whether  the  peril  be 
confined  to  sickness  or  may  include  the  dangers  of  travelling, 
navigation,  or  battle." 

The  miijority  of  the  court  did  not  differ  with  Barbour,  J.,  as  to 
the  principle  which  we  are  considering, of  a  donatio  mortis  causd; 
the  dilferenee  between  them  being  a.-,  to  the  application  of  the 
principle  to  the  facts  as  alleged  and  as  proved  in  the  case.  Thus, 
after  showing  by  the  authorities  that  the  definition  of  Blackstonc, 
which  is  substantially  that  too  of  Williams  on  Executors,  which 
misled  the  junior  members  of  the  New  Brunswick  Court  in  Earlc 
V.  Botsford,^  is  too  narrow,  in  so  far  as  it  confines  this  species  of 
gift  to  cases  of  last  illness ;  it  being  sufficient  if  the  apprehension 
of  death  arises  from  other  causes,  as  from  infirmity,  old  age,  or 
any  external  or  anticipated  danger,  Barbour,  J.,  says :  — 

"  If  then,  a  gift  is  [not?]  void  as  a  donatio  mortis  causd,  when 
made  in  contemplation,  expectation,  consideration,  apprehension, 
or  prospect  of  death,  arising  from  sickness,  infirmity,  old  age,  or 
any  external  or  anticipated  peril  or  danger,  as  seems  to  be  fully 
established  by  the  learned  writers  above  mentioned,  and  the 
authorities  cited  by  them,  there  can  be  no  good  reason  why  an 
enlisted  soldier  of  the  United  States  might  not,  under  tliecircuui- 
stanccs  detailed  in  the  pleadings  and  admissions  of  the  parties, 
have  made  such  a  gift  of  his  bounty  money  to  another  as  would 
constitute  a  good  and  complete  donation  mortis  causd.  The  obli- 
gation assumed  by  such  soldier  almost  necessarily  exposed  his  life 
to  extraordinary  perils  and  dangers." 

The  case  of  Gass  v.  Simpson  ^  is  a  very  similar  case  in  jirinoi- 
ple  to  the  Illinois  case  of  Virgin  v.  Gaitlier,^  stated  by  us  sitpni, 
and  where,  as  there,  the  gift  was  sustained.    But  while  in  the 


1  23  N.  B.  R.  407. 


2  44  Coldw.  (Tenn.)  288. 


s  42  lU.  39. 


riBT  ii.l 


OIPTS  DISTraoDISBED. 


46 


Illinois  case  fho  m'ft  is  a„.t„!„  , 

'1.0  ■ic.m.cssoc  casl  t  3  c"  S  1'  ",  ''f'^  "'■'""■•"""  gift  ■  in 

;•'»«■»  g  ft  «-as  a  gift  L"  II"      ","?'"■'"=''  '"'  "'«  g  0  .  d 

''^'d  f.-^yn  by  the  inujonty  7the  ,      *^^^-f'"«'t''^u  of  (he  Zl's 

^'^    -^  1-sclosed  in  the  record.  ''  P^'^^'los  to  the  «tute  of 

in  (rass  ?..  Simpson  *  as  in  x--     • 
;'-^i"-«od;  and  therefo  e,    s  i^r  ^'-^'^'-'-'^tho  eondition  was 
'"•"f  the  gift  in  the  Tenn;^^  "      '^ .?'''"'  *''«  ^'^«ts  nii.W.  \x^? 
;;•;  ^"f  "»-isJ.ed  from  rX.  :S"'''"  *'— -"-tionu  ,     !! 

'-.=^'>  not  expressed,  is  imp  ieT)  k!  T"'  ^"''^''^  '^^'  ««"<'^H  n 
t'.'en- judgment,  where  thev  sav      '' v    '  ™"J"'"'*>'  ^^  the  conrt  in 

•^PO'-nti..n  of  the  CWedeTa     '''""'  '"  ^^"»"«^  18'>2,   o  avo  d  n 

'yj-^'-^twl  this  statemenl;     T        '^  '^"  '  ^"'^  «^^  ^^'c  dav  he     f7  i. 
;^-;in.themon;;^S:;  Ina  tlllTl'''^' ^^  ^^  ^'^^^  ^''^    i  ^ 

«fey  the  principles  ffovei-i,i„°  ?     .        ''°"''*'  "^''^tcs  verv  accu- 

"  44  Coldw.  288. 


4il^ 


v:]-i'ii 


i\ 


I        ! 


I'? 


J     : 


.■-  t 


iQ 


COMMENTARIES  ON   SALES. 


[book  I. 


was  not  a  valid  gift  mortis  causd.  With  the  statement  of  princi- 
ples in  the  case  we  fully  concur ;  as  to  their  application  to  the 
facts  wo  arc  more  than  doubtful.  After  a  just  reference  to  the 
"  very  learned  and  able  opinion  in  the  case  of  Nicholas  v.  Adams,"  ^ 
of  Chief  Justice  Gibson  (which,  as  we  have  already  intimated,  is 
the  abl(;st  discussion  of  the  question  wc  have  found  in  any  of  the 
common-law  cases),  and  an  examination  of  other  authoritii^s  on  the 
question,  the  followinj^  accurate  exposition  of  the  law  is  made  :  — 

"  After  a  review  and  careful  analysis  of  all  the  authorities  to 
which  wc  have  had  access,  wo  conclude  that  upon  i)rinciplo  and 
in  accordance  with  what  seems  to  be  the  weight  of  authority,  the 
essential  reqtiisites  of  a  donatio  causd  mortis  are,  that  it  bein<; 
made  during  tho  sickness  of  the  donor,  or  whilst  under  the  belief 
that  he  is  in  peril  of  death,  or  surrounded  by  threatened  dangers 
from  which  he  has  an  immediate  existing  aj»prehension  of  death, 
and  in  contemplation  of  death  from  such  sickness,  peril,  or  dan- 
ger, he  is  thereby  moved  to  make  the  donation.  But  we  do  not 
mean  by  this  that  the  donor  must  be  in  extremis,  or  moved  by  the 
apprehension  of  immediate  death  ;  but  the  apprehension  itself 
must  be  immediate.  A  general  apprehension  of  death  from  the 
mortality  of  man  will  not  be  suOicient,  but  it  must  be  an  appre- 
hension arising  from  tho  particular  sickness,  peril,  or  danger." 

Unless  such  a  case  as  Jones  v.  Selby,'^  where  the  gift  was  made 
by  the  donor,  in  apparently  good  health,  three  years  before  his 
death,  and  which,  as  "  a  gift  in  prcesenti  to  take  effect  in  fui  ro 
after  the  party's  death,''  was  agreed  to  be  a  gorJ  donatio  causd 
mortis,  and  impliedly  assen  '  to  by  the  Lcid  Chancellor  as  such, 
is  law  ;  and,  in  the  light  of  p:..  '■>  and  of  the  later  authorities, 
we  do  not  think  it  is;  then  we  thinh.  'at  a  gift  by  one  who  made 
it  imder  no  more  direct  or  immediate  apprehension  of  death  tiiau 
was  done  by  the  donor  in  Gass  v.  Simpson,^  in  leaving  one  State 
to  avoid  conscription,  and  going  into  another  State,  where,  subse- 
quently, he  joined  the  Federal  uvmy,  and  apparently  died  a  nat- 
ural death,  is  not  made  "under  t' c  belief  that  he  was  in  peril 
of  death,  or  surrounded  by  threatening  dangers  from  which  he 
had  an  immediate  existing  apprehension  of  death"  so  as  to  make 
the  gift  a  valid  donatio  mortis  causd.  And  while  we  think  the 
law  of  donationes  mortis  causd  is  correctly  laid  down  iu  the  case, 
which  clearly  would  exclude  from  its  operation  such  a  case  as 
Jones  V.  Selby,*  we  think  the  dissenting  opinion  of  Milligan,  J., 
the  better  one,  —  that  the  rule  laid  down  by  the  court  was  inap- 
plicable to  the  state  of  facts  disclosed  in  the  record. 


1  2  Whart.  17,  22. 

2  Prec.  in  Ch.  300. 


»  44  CoHw.  2S3. 
<  Prec.  in  Ch.  300. 


i'ART  n.j 


«"T'S  DISTINOITISHED. 


3f' 

I 
I 


And  now,  u-I./lc  wo  thini.        ,  "^^ 

condin-onally  on  a         I''.^'''''^"''''  P roper fv"  ''''^^•-''  i''''««e« 

'"  ^'- "-:; :   ^;;-'  tho  propeK;t^;;ft  ""•'  *'"  ^''-^^^^ 

^'r:  r^-'"^o  p,.;   1"  «-  /nonths,  then  t],'  S  '"\^''f  ^"^  ^• 
«'"ch  was  one  that  tL  V     '    °"  *''«  '''iPDonirn/j    *"  '''^^'^'"o 

•  vostin-n-nU  of  h'   '  '^'^*'^'  *«  P'-cvent  thn  .  "»Po«e,  there  is 

'^  i>^'-sonaI  pronrt!" ,  ^  ''"''«^>'  o»  the  same  n  '  ,  '^'  ^''^^  "ot 
^-•'»«'-  'eavn^'thXt'  '?''"  •'^"^  delivered  j;T'f',r  ''''^^' 
f^">^"on.  a1.o  t  l/t^^^  V;;'-  -"dittnVat'tl'''  ^"  "'« 
^!^°/  '«  a  condition  which  a  '^  ^-  '^'^^^^  "ever  ret.        ^'°'''''^^ 

^'^  this;   „or  do-    !        '^  "°  principle  of  L^       '"^^''^^^  «'one  it 
*"^»«f  the  subiec    '\f ''«Pt  to  make  a  tell    ?  '^'*"^««  ^^ 


*»  i   .Mill,,,,,;,,!  '  -  '■•  P- Smitli  m.  y  ,' 

.S.'»,;.'™n,v',S„fe'i;L«B.ni 


ii.ds»,,y,  ,5  Q.  ij.  ,;,,'■ '^v'-,!^''  ■«« 

'■  Jioor,,  25  Q.  a  jj|f ;  ■"' ;  c«i,,a„„ 
5'-!-r^,;;mt*'ih'«- 3=s. 


Ab.  ]23     ir    '■  2  «!•  Com. /ii 


48 


COMMENTARIES  ON  SALES. 


[book  I. 


«  •    : 


we  think  it  clear  on  principle,  that  if  A.  sliould  die  abroad  with- 
out having  returned,  no  title  to  the  chattel  would  vest  in  A.'s 
executor  or  administrator. 

As  we  have  already  intimated,  we  think  that  the  holding  in 
"Virgin  v.  Gaither  ^  can  be  sustained  on  precisely  this  principle, 
as  there  the  gift  was  only  liable  to  be  defeated  in  event  of  the 
donor  returning  to  tlie  place  he  had  left ;  and  if  he  did  not  so 
return,  the  gift  was  to  become  absolute.  Wo  do  not  think  that 
such  a  condition  to  prevent  the  gift  becoming  absolute,  if  exer- 
cised, would  be  at  all  illegal,  because  it  might  be  exercised  at  any 
time  during  the  life  of  A. 

So,  too,  without  straining  the  principle  of  a  donatio  mortis 
causd  unduly,  so  as,  in  order  to  sustain  it,  to  bring  Gass  v.  Simp- 
son ^  within  its  jMU'view,  we  think  that  that  case,  like  Virgin  v. 
Gaithcr,''^  may  be  sustained  on  the  same  ground ;  as  there,  too,  the 
gift  was  matle  by  the  donor  to  become  absolute  if  he  never  re- 
turned, and  he  never  did  return. 

While  we  think  with  Milligan,  J.,  in  Gass  v.  Simpson,'*  that  the 
principles  governing  gifts  mortis  cauxd  are  not  apjdicable  to  tlioso 
cases,  we  perceive  no  reason  wliy  they  are  not  sustainable  as  con- 
ditional gifts  inter  vivos.  Thus  in  Dexhcimcr  v.  Gautier,''  stated 
supra,  where  the  gift  was  bounty  money,  and  was  delivered  by 
an  able-bodied  man  to  the  appellant,  at  the  time  of  the  donor's 
enlistment  into  the  army  of  tlie  United  States,  in  18t!4,  after  hav- 
ing successfully  passed  the  examinatiim  made  by  tuc  surgeon  with 
regard  to  his  health  and  bodily  fitness,  and  where  the  exclu- 
sive reliance  was  that  it  was  a  donatio  mortis  caxKci,  the  gift  hav- 
ing been  made  about  the  time  the  donor  wcMit  to  the  war,  and 
who  was  killed  in  the  war;  the  majority  of  the  court  lield,  and 
we  think,  correctly,  that  the  peril  was  not  sniViciently  iunuiueut  to 
make  the  gift  a  donatio  mortis  causd  ;  whatever  else  it  might 
have  been.  If  no  condition  was  attached,  it  was  a  gift  absolute 
inter  vivos  ;  and  if  a  condition  was  expressed  that  lid  not  by  its 
nature  make  the  transaction  an  attempt  to  make  a  parol  testauiou- 
tary  disposition,  then  it  would  be  simidy  a  conditional  gift  iiifrr 
vivos.  And  we  think  the  court  were  perfectly  correct  in  holdiiif,' 
that  the  gift  was  not  a  donatio  mortis  causd.  From  the  statc- 
nent  of  the  case,  the  gift  would  seem  to  have  been  a  simple 
absolute  gift  inter  vivos.  To  hold  that,  in  this  case,  where  tlierc 
was  so  little  direct  apprehension  of  death,  there  was  a  gift  in 
contemplation  of  death,  would  be  as  great  an  error,  on  the  one 


1  42  111.  39. 
«  4  ("olilw.  288. 
«  42  111.  39. 


*  4  Coldw.  288,  300. 
»  34  How.  Vr.  472. 


PAKT  n.] 


OIPTS   DISTINGUrSHED. 


Jiand,  as  was,  on  the  oflm,.  i      ^  "^^ 

''  funfraet  -!  ! „  /      ''  ^^''^^'s,  comes  uid.        i     °/ ,?^"''-''>^ts, 


3  ••-  "1.  39. 
■*  (-'oldw.  288 

VOL.  I. 


4r  I'.irl).  ;{-()    oo.j    , 


il 


1' 


.,,- 


'#< 


ilill':!; 


!-   i 


i    ! 


;4i 


i   , 

r 

■'wj 

m 

n 

ij^i 

w4i'| 

S'\'; 

111 


50 


COMMENTARIES  ON   SALES. 


[book  I. 


of  Gass  V.  Simpson,^  and  was  on  one  point  less  questionable  than 
it  was  in  the  Illinois  case  of  Virgin  v.  liaither.^  So  if,  in  Smith  v. 
Dorsey,^  the  gift  as  a  conditional  gift  inter  vivos  (for,  as  in  the 
otJicr  cases,  we  think  it  cannot  be  sustained  as  a  gift  mortis  causa, 
there  not  having  been  the  necessary  contemplation  of  approaching 
imminent  death)  cannot  be  sustained,  it  is  equally  as  clear  that 
it  cannot  be  in  either  of  these  other  cases. 

Tlie  gift  of  a  gun  was  made  by  the  donor  in  Smith  v.  Dorsey^  after 
he  had  entered  the  military  service  of  the  United  States,  and  just 
prior  to  his  joining  the  army.  The  gun  was  presented  to  the  donee 
on  the  condition  that  if  the  donor  did  not  return,  the  gun  was  to  bo 
the  property  of  the  defendant,  the  donee.  The  donor  then  left, 
leaving  the  gun  with  the  defendant,  and  never  returned,  but  died  in 
the  army ;  the  cause  of  death  not  being  stated.  This,  we  think, 
with  the  Supreme  Court  of  Indiana,  was  not  a  gift  mortis  causd, 
any  more  than  it  was  in  either  the  Illinois  case  or  in  the  Tennessee 
case  alluded  to  above.  In  an  action  by  the  donor's  administn.U'!. 
for  the  gun,  the  court  below  found  for  the  defendant,  wlii  .Jr  . 
sustained  by  the  court  of  Common  Pleas;  but  on  appeal  ■  j  ih 
Supreme  Court  of  the  State,  the  decision  was  reversed.  The  co;ii : 
reached  the  conclusion^  as  in  Dexheimer  v.  Gautier,*  and  Irish  r. 
Nutting,^  that  the  gi^t  was  not  good  mortis  causd.  because  the 
decedent  was  at  the  tune  of  the  gift  in  good  health,  and  had  no 
cause  to  apprehend  death  from  any  impending  danger  or  from 
material  causes. 

But  in  order  to  decide  for  the  plaintiff,  the  court,  as  they  had 
to  do,  went  fiirther,  and  held  that  the  gift  was  not  good  inter 
vivos,  because  they  held  that  there  could  not  be,  under  the  com- 
mon law,  a  conditional  gift.  Buskirk,  C.  J.,  in  delivering  the 
opinion  of  the  court,  said :  "  To  constitute  a  valid  gift  inter  viros, 
it  is  essential  tliat  the  article  given  should  be  delivered  ahsolutdij 
and  unconditionalhf.  The  gift  must  take  effect  at  cnce  and  com- 
pletely, and  when  it  is  made  perfect  and  complete  by  delivery  and 
acceptance,  it  then  becomes  irrevocable  by  the  donor.  Gifts  inter 
vivos  have  no  reference  to  the  future,  but  go  into  immediate  and 
absolute  effect.  A  court  of  equity  will  not  interfere  and  give 
effect  to  a  gift  that  is  inclioate  and  incom})lete." 

For  these  propositions,  1  Parsons  on  Contracts,  234 ;  2  Kent's 
Commentaries,  438 ;  Bouvier,  Law  Dictionary,  tit.  Gifts,  inter 
vivos ;  Bedell  v.  Carll,''  Irish  v.  Nutting,'^  and  Dexheimer  v.  Gau- 
tier,^  are  cited. 


»  4  Coldw.  288. 
2  4-2  111.  39. 
»  38  Ind.  451. 
«  34  How.  Fr.  472. 


»  47  Barb.  370. 
6  33  N.  Y.  581. 
'  47  Biirb.  370. 
8  34  How.  Pr.  472. 


J'crfoi-ii 

W;is  <r\\ 

coiidKic 

imnicdii 

given  Ijc 

tJio  mod 

Ij'c'Iiim 

lowing  f 

a'u-nys  ai 
""'5  liini 

■'■'    ^'^u   dt 

'i.u'i'ooniont 
^^'•'n,  bnt  I 

-  ^  Sf'o  Jonos 
Joliiison  V.  Jiiii 
«''l-*nn  V.  |{i  .(, 

citiMl  supni.     ' 

"  .'-^'ivv.'irds 
'^''tfher  (..  p'jpi 
'.     *  ■'ve.   17   /, 
,',..  ■""■'cy,  2Ki 
'''iuouiiie,   2   S 


PART  ir.j 


-■■^a.M,  uuc;  as  w 
gonei-allv  it  is  tnio  2    p.  .  "."^  «'"  '^  '"  tlie  nature  .>f    "^  ""^  ""'  ""'" 

or  ».in.mist,-ators  to    "?     "'."  "'<">oato  donor  „p,        °  '"'''>'->• 

f«)o"n,,„„,..4to.,:orot;t ,''',™  'f  ^  -".  '■V'r'"™ 

l-«".  .  GaT  t  .  :„ J™"'  "•  "o.-.c,  3  Zl     '--onal  ,.,.p„,,,, 
/'orformanco  of  ti    "''' ''^^'^ol "  at  onco  an,?    '     '™''-''"n,«  and  ii, 

conditio",  ;"f '!;-;!".-<>  tl.«n  bee  tslfaST?'  "■"'-^^ 
'■""'ociiatoandabS  t  Sr"'"?'''"  ^y  'I'oclonor  "*"■!'  "'"'  """ 
fon  being  per*:^"  '^1="''  ?'  "'"  »"<"'  o  .'o„^I.?,  ".j"'" 
"lomodeof  vc.,tin..o  tT,'"'"®''"  i"  condition,!  "  '» 

,   I'clnnd,  and  a     ?,„°  „   "  P';°'>"'-f3-.  is  entire.      "°"'"  ^'"<''  "»  '" 

-■"?  fmm  Blact   „    "'t"^™' of  «'ose  pr„,,„,it,-„„,,  ,,  ,,     ^  , 

''»»y8  aceomnanicd  uiti,' I  ,■       "°  ""<'  Proi^er  ,.ift  „  "^"'^ 

;i.'ni<-tiiatelr-  a,  f  ■    ""''''"•O'-yof  I'osscssinn  '?'■••'"'  '« 

::-'itri^i^;srSe:-ih^r^^ 

^''" /■-  ho  m  i       •.,  ''  ""^  "^  tl.c  donor's  ^'^^  "•^■^«»tcd 


,;,.; .'""a  2K(lcn.  m.'ii   >'''''e'-J<'y  V. 

*  "'^''""'^■.  2  Strang       i?''"7/""""'  "• 
"''    'J8;    Morris    i>. 


12  V,.,,.  4/ 

'  38  In.i.  451. 
»  CoKIh,.  288 
fl  42  'II.  39.  ''*• 

note  (s/^"^-  ^^<""-.  by  aitty,  44].  «.„, 


■  m 


52 


COMMENTARIES  ON  SALES. 


[book  I. 


IS  11^ 


III' 


This  simply  is  to  the  effect  that  to  perfect  a  gift  there  must  he 
a  delivery  of  the  subject-matter.^  If  on  delivery  the  gilt  ho  abso- 
lute," it  takes  effect  immediately  "  on  the  delivery  ;  if  conditional, 
"  it  takes  effect  immediately  "  on  the  performance  of  the  condi- 
tion. The  giving  and  the  delivery  iniitc  to  make  the  gift  perfect ; 
and  where  there  are  both  of  these,  the  absolute  giving  and  the 
delivery  ;  or  the  conditional  giving  ;  when,  in  this  latter  case,  tlie 
performance  of  the  condition  and  the  delivery  unite,  the  gift,  in 
the  one  case  as  in  the  other,  is  complete. 

Blackstone's  jiosition  simply  is  that  where  the  gift  is  only  prom- 
ised and  not  made,  it  is  simply  a  nudum  jxtctuin, —  a  promise 
to  give,  and  not  a  gift;  and  being  without  "good  and  sutlicieut 
consideration,"  cannot  be  enforced,  lie  neither  says  nor  imiilios 
that,  in  the  case  of  a  gift  made  on  condition,  with  delivery  of  pos- 
session riud  the  condition  performed,  the  transaction  is  not  a 
valid,  cxv  .     ■ '  'lift. 

So,  too,  1 X  IS  on  Contracts,"  as  cited.  Professor  Parsons,  vir- 
tually using  tliu  language  of  J>lackstone,  although  citing  no  author- 
ity for  the  first  proposition,  says  :  "  It  is  es><ential  to  a  </lft  that  it 
goes  into  effect  at  once,  and  com])leicly.  If  it  regards  the  future, 
it  is  but  a  promise ;  and  being  a  promise  without  consideration,  it 
cannot  be  enforced,  and  has  no  legal  validity.  Hence  delivcri/  is 
essential  to  the  validity  of  every  gift ;  for  not  even  a  court  of 
equity  will  intcrffn-c  to  enforce  a  merely  intended  or  promised  gift.'' 

This  docs  not  mean,  any  more  than  Blackstone,  that  there  can- 
not be  a  u'ood  conditional  gift.  All  that  it  means  is  that  there 
must  be  a  delivery  of  the  subject-matter,  —  that  a  promise  to  give 
is  not  a  gift,  and  that  a  "  merely  intendi>d  or  promised  gift "  will  not 
be  enforced.  Thus,  to  be  severely  elementary,  a  promise  to  give. 
and  no  delivery,  is  no  gift ;  a  promise  by  A.  to  give  I>.  his  lioiso 
at  C.  to-morrow,  passes  nothing  to  1>.  without  the  delivery.  A 
promise  Ity  A.  to  give  B.  his  horse  to-morrow  if  H.  is  at  C,  nnd 
no  delivery,  the  gift  "regards  the  future;  it  is  but  a  promise," 
and,  as  "  a  merely  intended  or  promised  gift,"  will  not  l)e  enforcinj. 
But  if  A.  gives  B.  his  horse,  delivering  the  horse,  and  the  horse 
is  to  become  the  i)roperty  of  B.  to-morrow,  if  B.  is  then  iit  ('.. 
and  15.  is  then  at  C. ;  by  the  very  terras  of  the  gift,  the  condition 
has  l)een  performed,  the  gift "  goes  intn  effect  at  once  and  com- 
pletely ;"  and  the  property  in  the  horse  is  irrevocably  in  B.'^ 


1  Sco  Tayldr  v.  Honry,  48  Md.  .')50  ; 
Nolthlop  V.'  Hall',  7;5  Mo.  titi  ;  Dnli'  v. 
Lincoln,  ;{1  Ml'.  Vl'2  ;  Hohiiison  „•.  Kiiii^, 
7'2  Mc.  140;  IMcii'o  v.  Hank,  12!)  Muss. 
432  ;  Hill  v.  Stephenson,  63  Me.  3G4  ; 
Barker  v.  Frye,  75  Me.  2!)  ;  Stephonson  v. 
King,  50  Am.  Rep.  172  ;  Stevens  v.  Ste- 
vens, 2  Hun,  470 ;  Ciirlcton  v.  Lovejoy, 


54  Me.  446;  MeOratli  v.  l^eynol.N,  116 
Muss.  5*)0  ;  Frencli  v.  li.ivinonil,  ;>".*  Vr. 
(i23  ;  Heiidley  v.  Kirtiy,  18  Pa.  St.  :l'2'i  I 
Savings  Bank  v.  Fogs;,  82  Mc.  538  ;  I'low 
V.  Hagertv,  SI  Me.  231. 

2  l'nge234. 

'  ;3ee  2  Blk.  Com.,  154-167,  on  Condi- 
tions. 


P^RT  IJ.J 


^''^TS  ^^mNomsuED. 


^t  HiJl  he  noticed  I.ci-o  th.,  ,  '  ^3 

^i-"  of  «a^.i,,.  0  .■;„,,  "'''  '^  ^'  palpable  o"  f  /,'  ''''^"'-  ''^'^s,  hut 
^"■^^ence  of  one  of   j '  "f  ^ '  ^^  ^'^y  both  wdl'  ^"'^'  «'^"^  eould 

^^'  '^"^^  ^^  '^col:^    :  :;^  -  I'-i'-  lan,„a;^::^   '^y  -ore  .et,,,,;^ 

-«-^^nust.u;a,  'b     r/""""'"-^  «'ose  .1^,;"  ,t««  of  gift, 
that  athov  o-ifts  /'    ^  ^^"' ^^ory  nature  bo  "''  '"^''o  ''^«^^/. 

^  -"^'-^'--ilv   !  ei,  ^t;r-  cannot  be  I    ^ a  :""^' ''  -^  3  0 

^'aJJv  <iu.  sanie  as  in  l>    '  ^'''  "^  effect  from  m    , 

^«"a'  propertv,  and    h      "-'  f  '"'^^^tial  to?,,      '"  ''"^  ^"^"^"^ 

<^«'"es  absolute  b      .  -"■''^'  «"  as  to  be  ,  n  r      "^  '"'"^^'o  (u-hich 

^--nnn.ated    .'  e,  :?,  ^.""!''^'-'  ^-'4  pc  -fo  nff ^''  "'^^'^  '^  ^e- 

^-^■«  not  pass.    A  ,  J  '*   "  "'''t^'o-t  actual, J  /.'""^^^'^^^o  and 

^^"^0  act  to  pass  the  n        ''''''"'  '>'  ''"^v,/ '    'l' •  ^^^'^'0'  the  title 

n'  vent's  ?i.,  ^'''  althou.-h  nnf        .■ 

^■'"'•-  't's't',:;.';: '" ^  ■''"'■'"^' «;  t'^'  ir"-  '^  ™-'-"y 

»"'l  »rt"al  effbc       n/:'''^''-' *° ''''■• '"ture'"!  """^   "Gifts 

.   J'"s  s""!'!!- mean,  tr.     '*'-■'  '"  <lie  i,„„l„ S       "'"  »'!'  is 

"i--  o,:-;  ;,;\';»  >«o  to  a  gift '  :4';:r-""?' '»» ^^-'ft 

"'"'"'Tfriftsm-avt'",,  *."'•■'''''  0"  a  co',,,    '  ;,  "  , '•'"•■"•l"  sifts 
'"  -'""OS  ,..  S    b;V  '"f  ■•^•-»an-|,-  a,t"  "'"<■*  -'»  '-ta."c„t. 

^  '«<-•  lu  cji.  300, 303.    "■ 


n'*" 

n 


If  J I 


•f 


t 


I ' 


.  u 


!   1  . 


\\ 


v.\ 


I 


*i  ;i 


•'V 


1   ( 


^ 


p  u 


I  if  ">' 

1:1 


III' 


By     :  ' .    !  ■ 


If* 


54 


COMMENTARIES  ON   SALES. 


[book  I. 


mortis  is  a  gift  inprcesenti  to  take  effect  in  future,  and  it  is  revoca- 
ble during  his  life,  as  a  will  is,  and  so  it  differs  nothing  from  a  will, 
for  it  is  not  a  present  substantive  gift."  Ami  in  Walter  v.  Ilodge,^ 
it  is  correctly  said :  "  To  constitute  a  donatio  mortiit  causa  or  gift 
in  contemplation  of  death,  the  transaction  must  first  possess  the 
requisites  of  a  gift.  By  the  law  of  England,  in  order  to  transfer 
property  by  gift,  there  must  either  be  a  deed  or  instrument  of 
gift,  or  an  actual  delivery  of  the  thing  to  the  donee."  ^  This  is 
the  very  opposite  of  declaring  that  as  a  donatio  mortis  causa  must 
first  possess  the  requisites  of  a  gift,  and  as  a  conditional  gift  (ac- 
cording to  Smith  V.  Dorsey)  ^  is  invalid,  therefore  a  donatio  mortis 
causa,  which  is  conditional,  does  not  "  possess  the  requisites  of  a 
gift ;"  and,  therefore,  there  cannot  be  a  donatio  mortis  causa ;  it 
IS  not  «  a  gift "  ! 

Tiie  only  case  cited  by  Bouvier*  is  simply  on  the  question, 
which  was  the  sole  one  in  the  contemplation  of  the  different 
writers  above  quoted,  viz.,  that  delivery  is  generally  essential  to 
a  gift.  Thus  the  court  said :  "  A  gift  is  not  consummate  and  per- 
fect until  a  delivery  of  the  thing  promised ;  and  until  tlirri,  the 
party  may  revoke  his  promise.  A  parol  promise  to  pay  money 
as  a  gift  is  no  more  a  ground  of  action,  than  a  promise  to  deliver 
a  chattel  as  a  gift.  It  is  the  delivery  which  makes  the  gift  valid. 
Donatio  perficitur  possessione  accipientis" 

This  is  very  far  from  saying  or  implying  that  a  conditional  gift 
of  a  chattel,  which  has  been  delivered  and  the  condition  per- 
formed, is  invalid.  The  principles  governing  conditions  ^  apply 
as  well  to  gifts  of  chattels,  as  they  do  to  assignments  of  real 
estate,  or  to  Si.les,  bailiiients,  or  any  other  agreements  or  con- 
tracts. The  essential  distinction  in  the  gift  is  simply  the  deliv- 
ery ;  not  that  it  must  be  without  condition.  It  must  be  a  gift,  — 
not  a  promise  to  give ;  but  clearly,  on  principle,  it  may  as  well 
be,  as  a  sale,  conditional  as  unconditional.  On  this  point,  between 
a  gift  and  a  sale,  we  say  advisedly,  there  is  no  distinction. 

In  Noble  v.  Smith,**  cited  in  Pearson  v.  Pearson,'^  the  essentials 
of  "  a  perfect  gift "  are  well  stated,  as  capacity  in  the  donor  to 
make  the  gift ;  an  acceptance  by  the  donee,  and  a  transfer  of  the 
possession.  But,  with  these,  there  is  nothing  to  prevent  the  gift 
l)eing  made  conditionally  in  a  gift  inter  vivos,  any  more  than  tliero 
is  in  what  Kent,  C.  J.,  in  this  case,  describes  as  "  the  analogous  eas^e 
of  gifts  causd  mortis"  in  which  it  is  "  a  delivery  that  is  necessari/ 
to  make  the  gift  valid." 

*  Pearson  v.  Pearson,  7  Johns.  26. 
''  See  authorities  cited  supra. 


1  2  Swanst.  92,  101,  n.  h. 

2  Irons  V.  SmuUpicce,  2  !5.  &  Aid.  552  ; 
Hooper  v.  Goodwin,  1  Swanst.  485. 

8  38  Ind.  451. 


0  2  Johns.  52. 
'  7  Johns.  2G. 


PART  II.] 


GIFTS  DISTINGUISHED. 


55 


The  case  of  Bedell  v.  Carll  ^  is  no  better  authority  for  the  de- 
cision in  Smith  v.  Dorsey,^  than  are  the  other  authorities  cited  in 
it  wliicli  Avc  have  examined.  The  entirely  accurate  language  in 
IJeiloll  V.  Carll ^  (in  part  quoted  in  Smith  v.  Dorscy)  is  :  "A  gift 
inter  vivos  when  made  perfect  by  delivery  of  the  thing  given  is  an 
executed  contract  [and  as  a  contract  or  agreement,  then,  clearly 
us  in  other  agreements  or  contracts,  it  may  be  with  a  condition], 
und  clfeetually  and  irrevocably  vests  the  property  in  the  doneo. 
Ill  short,  all  that  is  essential  to  constitute  a  valid  transfer  of  proper/^'/ 
by  j)arol  ijift  is  an  expression  to  that  effect  hy  the  donory  accom- 
panied hy  a  delivery  of  the  thing  to  the  donee.  Of  course  neither 
a  donation  inter  vivos  or  mortis  causd  is  good  without  delivery ; 
but  in  the  one  case  the  title  passes  immediately  to  the  donee  on. 
delivery  [the  court  was  here  simply  treating  of  the  gift  in  the 
case,  which  was  one,  without  condition,  of  a.  promissory  notu  of  a 
third  person  to  pay  money  in  the  future],  and  the  donor  has  no 
more  right  over  the  property  than  any  other  person ;  in  the  other, 
the  title  does  not  pass  immediately.  It  is  a  conditional  yift 
[Mark  this!  It  is  a  conditional  gift^,  to  take  effect  only  on  the 
(lentil  of  the  donor,  who  in  the  mean  time  has  the  power  of  revoca- 
tion, and  may  at  any  time  resume  possession  and  annul  the  gift." 
A  gift  mortis  causa  is  here  shown  to  come  within  the  class  of 
conditional  yifts,  in  which  particular  conditional  gift  the  peculiar 
conditions  of  a  donatio  mortis  causa  are  implied.  Certainly  this 
neither  holds  nor  implies  that  there  are  not  conditional  gifts. 

Dexhoimer  v.  Gautier,*  previously  stated  by  us,  holds  that  a  gift 
made  by  one  in  perfect  health,  and  not  in  danger  of  death  from  some 
imminent  or  impending  peril,  was  not  a  good  donatio  mortis  causd. 
The  court  here  too  speak  of  conditional  gifts  as  though  there 
could  be  no  question  that  "  a  gift "  may  "  be  a  conditional  one." 
But  they  go  farther,  and  intimate  that  if  such  a  gift  (which  was 
expressed  only  to  take  effect  in  case  of  the  donor's  decease),  if  not 
void  (evidently  meaning  thereby,  if  it  were  not  void  as  a  gift  mor- 
tis causd),  was  "  an  absolute  one ;"  i.  e.,  one  which  became  abso- 
lute when  tlie  condition  was  performed,  and  a  gift  notwithstanding 
that  it  was  on  condition. 

Irish  V.  Nutting,"  the  remaining  case  cited  in  Smith  v.  Doi'sey,^ 
comes  somewhat  nearer  to  being  an  authority  for  the  decisi(^n  in 
the  latter  case  than  either  of  the  other  authorities  upon  which  it 
relies.  But  it  too  fails  to  go  to  the  extent  of  the  holding  in 
Smith  V.  Dorsey.''    In  Irish  v.  Nutting,^  promissory  notes  of  a 


1  33  X.  Y.  581. 

*  38  Inil.  451. 

»  33  N.  Y.  at  p. 

*  34  How.  472. 


684. 


6  47  Barb.  370. 
«  38  Ind.  451. 
T  38  Ind.  451. 


!      ! 


i 


56 


COMMENTARIES  ON   SALES. 


[book  I. 


third  party  were  given  and  delivered  to  the  plaintiff  by  the  defend- 
ant's intestate,  after  he  had  enlisted  in  the  service  of  the  United 
States,  and  before  he  had  entered  on  actual  service,  but  on  the  eve 
of  his  being  ordered  to  the  scat  of  war ;  the  words  and  condition 
of  the  gift  in  effect  being :  "  I  give  you  these  notes.  If  I  never 
return  they  arc  yours."  He  left  and  never  did  retui'n,  but  died 
away,  of  a  disease  contracted  while  in  tlie  service.  It  is  manifest 
that  tills,  lilvc  the  other  cases  of  the  same  class  wo  liave  examined, 
was  not  a  good  gift  mortis  causd,  us  there  was  no  suHicient  con- 
templation of  death  from  any  imminent  cause.  The  court  below 
held  that  it  was  a  donatio  mortis  causd.  On  appeal  to  the  Sui)renic 
Court  of  New  York,  it  was  very  faintly  contended  for  the  respon- 
dent that  the  gift  was  a  good  gift  inter  vivos  ;  but  the  main  conten- 
tion was  as  to  whetlicr  the  gift  was  good  or  not  mortis  causd.  The 
appellant,  merely  in  [)assing,  claimed  that  "  it  was  not  a  gift  inter 
vivos,  because  it  icas  conditional,  and  made  to  depend  upon  an  un- 
certain event  in  the  future.  Gifts  of  this  description  have  no  ref- 
erence to  the  future,  and  go  into  immediate  and  absolute  effect. 
The  donor  renounces,  and  the  donee  immediately  acquires,  all  titles 
and  interest  in  the  subject  of  the  gift."  ^  And  the  court,  Uacon, 
J.,  delivering  their  unaniniv..  s  judgment,  and  entirely  misunder- 
standing the  meaning  of  Blaclcstone,  repeated,  without  explana- 
tion, by  Kent,  Parsons,  Bouvier,  etc.,  said  :  — 

"  On  the  argument  some  attempt  was  made  to  sustain  the  trans- 
action as  an  executed  absolute  gift  inter  vivos,  founded  on  tlie 
consideration  [a  gift  docs  not  require  a  consideration]  of  the  ser- 
vices theretofore  rendered  the  intestate  by  the  plaintili"  in  the  care 
of  his  clothing  and  providing  him  board.  But  it  clearly  cannot 
be  sustained  as  such  a  gift,  for  the  obvious  reason  that  it  was 
coupled  with  a  condition,  upon  the  happening  of  which  the  owner 
was  to  resume  possession.  An  absolute  gift  which  divests  the 
donor's  title,  requires  the  renunciation  on  his  pai't  and  the  acqui- 
sition on  the  part  of  the  donee,  of  all  the  title  to  and  interest  in 
the  subject  of  the  gift.  It  is  very  clear  upon  all  the  testimony 
that  there  was  no  intention  on  the  part  of  the  intestate  to  part 
with  the  absolute  title  to  the  notes ;  but  he  contemplated  and 
provided  for  a  future  contingency,  on  the  occurrence  of  which  he 
should  resume  it,  making  the  plaintiff  in  the  mean  time  the  cus- 
todian. A  valid  g\ft  inter  vivos  has  no  reference  to  the  futinv, 
but  is  one  which  goes  into  immediate  and  absolute  effect.^  Tlio 
precise  distinction  between  a  gift  infer  vivos  and  mortis  ca\isd,  as  is 
correctly  said  in  Bedell  v.  Carll,'^  is  that  in  the  one  case  the  title 


1  Citing  2  Kent's  Com.,  438 ;  2  Blk. 
Com.,  441. 


«  Kent's  Com.,  438. 
»  33  N.  Y.  584. 


PART  ir.J 


GIFTS  DISTINGUISHED. 


57 


passes  imtnodiatoly  to  the  donee  on  ,uv  ^' 

»o  more  nght  to  the  propertv  flL  r'^'  °»^'  "^^  donor  hi, 

;  0  ti.Io  docs  not  pasf  irnel      :  ^ft  it  •"'  '""^"  ^  '"  ^'--"' 
alve  eftect  only  on  tlie  death  oftho  .  "  ''  ^'^^^'^/^/.^./Z .////  •  to 

'-;^'.e  power  of  .-ovocatio     and^^v  ""■'  "''  '"  *''^'  ^^^^^^ 
J'"'«,  it  is  evident,  that  the  «      '    '"""'  '^"''  •^"»"'  ^.e  Jr' 
come  to  the  eonch,sio;;,^  J  ;       'h  ""  ^^'"'^  <^f  ^N'-.  ^ork    ^ 
"';!'''r^-'J  ^''<'  scope  and-eta  Jt    '"\r  ''  '''^'"'^'''^  f-'lu'-o  o 
'•^•l'ed,thatthereeouIdnotbeava,i    ''""?'-'*'^''^  ""  ^vhich  the' 

p-i'.;.^y  /.... ....  J,,  haw::;^^;;;;;;  ^-'^i  ^i^'  of  porsoS 

"Kh  '.xtra-jndieial;  and  as  far  -.^  f)  .  ',  '°"''''  I>''<>I'C-Th-,  uas 
t'Hs  ,.o,nt  is  concerned,  Smith,  ri  ^^^'"''^'"J?  ''n  this  case  on 
po-t  of -shall  ue  snv      "      *  J' ^^^''-^^'r  '  increlv  roceivos  i 

Tiic  error  thj'  '1'"  '^"^"•^''>'  "»««""cl  .V,/,.,  ;  ;  /^'^^  '"I- 
^^I'Peals,  in  Dot    .   w   ,  ""^  '7'-^*-'  '>)'  the  New  ^o      c,„,,    , 

iiillaciouslv  s'iv<-   u  A  .    ^°"'r, 'cforriniT  to  ini'u   ■  ,      ■'/"^ 

Jo    show    how    oieilir    I„ 

Smiil,  „.  „„,„,,.  °"Z '"""u-f  •  ""=''  "'  ">i«I'"l  (1.0  c„„rt,  ■ 

,  ;;  ^^^  Y  580,  585.  «l>ove  proposition  of  M,    v  "";'*'"-''  '"   t''8 

t'H'  inX.n;5M^"''^  '■'^"'1  «t  the  foot  of     °^  ^^^ '^'^-  '"  '"'  ^""^ 

„„.„  „n""?"'  ^vlu-re  this  iiiporreot  «t!f  ^^  ^""l-  451 

'  '^-"yonre.o„aiPrope,,,.§202. 


IIP* 


;    n  : 


i'li"H-'i 


ii 


!■  ! 


68 


COMMENTARIES  ON  SALES. 


[book  I. 


1  ii 


there  could  not  be  a  valid  conditional  gift  inter  vivos  ;  but,  obvi- 
ously, tlie  author  quoted,  notwithstanding  the  strength  of  the  pas- 
sages in  tlio  above  we  have  italicized,  did  not  expect  to  be  so 
understood.  For  immediately  preceding  this,  in  tiie  very  "  last 
chapter  "  to  wliich  he  refers,  in  §  199,  on  "  Qualified  and  condi- 
tional <jifts  "  inter  vivoH,  he  says,  in  very  apparent  contradiction 
to  the  above  :  "  A  reservation  of  the  riglit  to  recall  and  use  during 
the  life  of  the  donor  does  not  always  defeat  the  gift.  A  donor  lum 
the  right  to  impose  a  condition  upon  his  bounty^  in  which  case  the 
donee  acqnires  a  title  tvhen  he  has  complied  with  the  condition."  ^ 

While  we  think  this  last  statement  is  perfectly  sound  law,  and  is 
opposed  to  the  unsound  decision  of  the  Supreme  Court  of  Indiana 
in  Smith  v.  Dorsey,^  and  to  the  equally  unsound  ohiter  dicta  of 
the  Supreme  Court  of  New  York,  in  Irish  v.  Nutting,'^  it  all  sug- 
gests, wo  think,  the  great  care  which  should  be  taken  by  courts 
and  jurists  in  the  choice  of  language  they  employ  when  under- 
taking to  propound  important  and  far-reaching  propositions  of 
law. 

"\Vt  have  already  alluded  to  the  fact,  that  as  contracts  or  agree- 
ments of  sale  and  of  bailment  may  be  on  such  legal  conditions 
as  may  be  agreed  on  between  the  parties ;  so  there  is  no  reason, 
in  principle,  Avhy  a  gift  may  not  be  made  and  accepted  on  condi- 
tions agreed  on,  or  be  subject  to  tho  usual  rules  as  to  conditions 
precedent  and  subsequent.  In  fact,  gifts  are  made  every  day  on 
conditions  named  ;  and  in  England,  at  least,  it  has  never  been  so 
absurdly  claimed,  as  it  has  been  in  tho  cases  in  this  country  wliich 
we  have  been  considering,  that  a  gift  could  not  be  made  unless  it 
were  absolute  and  unconditional ;  using  these  terms  here,  not  in  tlio 
sense  that  where  tlie  gift  is  not  by  deed  or  by  a  testamentary  in- 
strument, it  must  generally  be  accompanied  by  delivery,  and  not 
left  inclioate  and  as  a  mere  promise  to  give  ;  but,  as  these  words 
would  more  properly  imply,  that  the  gift  must  vest  absolutely  on 
delivery  and  receipt  as  the  vested  property  of  tlie  donee,  without 
tho  possibility  of  being  affected  by  any  condition  precedent  or 
subsequent. 

Such  gifts,  we  repeat,  are  made  every  day,  —  by  trust-deeds, 
marriage  settlements,  testamentary  instruments,'^  and  as  gifts 
mortis  causa  ;  and  in  the  numerous  cases  which  have  been  de- 
cided in  England  in  connection  with  such  gifts,  we  have  yet  to 
find  the  first  case  in  which  it  has  been,  even  for  one  moment, 
contended  of  any  kind  of  gift,  that  it  must  be  an  "  absolute  and 


1  Ihul,  §  109. 

2  38  I  ml.  -151. 
s  47  IJarb.  370. 

*  See,  in  addition  to  the  other  authori- 


ties cited  supra  in  notes  to  tliis  Part,  2 
Jar.  on  Wills,  Ch.  27,  pp.  1-60,  and  the 
numerous  cases  there  cited  on  couditious 
connected  with  such  gifts. 


PART  II.J 


GIFTS  DJSTrNGU/SHED. 


uncouuitional  transfer  of  ^^ 

i«  designed    or  fnJl  ,    "°'''  °''  '-^v-eHtin.,  of  fh"^  ^'''°"«'  ^^^e^e 

courts  in  iS  'f' t"^^^'^''''^  in  effect  TsL/'  ''"'""«8«  ^»'c 
I  «-,tic.r/and  l!;,  ^"'"»''   «'»'tli   ^     Dor    f /' rf"'^^^  «^  *''« 

""  conditio,,,,!  ^rn^fT      """"'  '""  lliat  tl  m  "'  ''°  «™- 

»,■«„„,,„,  ''™'''»<' 0.. th,3 ,„„„,, t„o/a,'or:d,TSid:d'"^'; 

liic  Jaw,  o-cnor„ii,    .     ,  ^  ^Lciucd,  and 

"lion  doall,  is  „„/"'"'"''«:  "/«  «»  „/■„''  "'"^  "onncssco 

six'oi/iod.    J{„t     "; '=°"'"igoucy  „p„„  „.I,ic),  it"    f'-''J  '""»'  l« 

""'  1.0  o.messo    "  °  "°^  ""  ''™l'"ocl  fro, ,      ,  „'  ''""'  "'«  Condi- 
'..a>-  there  !  ^I'ooifiod." .»    UmT!      T"""'""'  "'.''  "ood 

'■"'.?o  soitlcraont,  or  anv  oti      "-'y  '"■«*'c,-iUo,  i„  a  trust  7  ,°"''' 

^■■«0"3  at  „1;  :;,;;>  -^  -"vo,a,.cc.  of  reai^t-at:  ^  ,"^"'"?'"^^ 

S«'o  i.i.s  Aa  .h    n  ^;';«*  o-^c,  Martriek  .  Li„„„, ,  „      , 
«lf  Cvhosc  dd'         ""^  "S'^  "J  'ivino.  ;„,;''''    "  '""'<='■ 

P«-for,„cd   J   T      "  "''  ">>'  1'»">I.     Thot  ,■■      "■""'•'  '"'"S  it 
fe'l.e.-'s  f.  v!      ■    °  ™"'  '"'"■"?  boon  tal  n„  '='""'"'°»  ''avini;  bocn 

"■«  '"'"p  *;  hi  ;l ""  "^^-^  V »"  d  tors;""" '°''  '-■  ♦"" 

^  tn  KV  ;"•  ,  .        ^""itations.     So.  in  the 


I  ^  l''[^'-  3-0, 

3^  ^2  III.  39.      ^72. 

4  ''oM^v.  288. 
7  ^'  ^'"-h.  370. 

*»«>  'nd.  451. 


1^^  IS'''"'-  "*  P-  2!>r. 

^iiiil   see  si,pra    no? 
,y-  J-,  "1  Nicholas  ,.   4, '^■^^'/f'*  Gibson, 
.21;  and  supra,  n  4)'  "''  ^  ^^'iiart.  17 

"^Pi'k   S.''^^«•«'^"•431,435!• 


fp 


j"^ 


60 


COMMENTARIES  ON  SALES. 


[book  I. 


i 

I 


ii 


more  recent  case  in  Pennsylvania,  of  Riegol  v.  Wooloy,'  where  a 
brother  jiiive  his  sister  his  stocic  of  goods  on  condition  tliat  slif 
would  |»;iy  two  of  his  outstantling  notes,  the  jury  having  foiiiui 
that  this  w  us  a  gift  and  nut  a  sale  to  the  sister,  this  ronditiomtl 
l/ij't  was  sustained  l)y  the  Supreme  Court  of  the  State  ;  it  not  beiui; 
even  contended  that  there  eould  not  he  a  conditional  gift. 

In  Iowa  too,  in  lierry  v.  Herry,-  where  hy  a  gift  from  a  fatlu'i' 
to  his  son  (jf  a  tannery  and  its  stoeiv,  on  the  comiition  that  if  tlir 
BvUi  kept  sober  and  attended  to  his  business  for  tlireo  years,  the 
entire  property  in  the  tannery  and  stock  was  to  be  his;  the  court 
correctly  laid  it  down  as  embodying  "  a  very  plain  and  elementary 
prineiple,  that  a  donee  may  not  dictate  the  terms  to  nor  change 
those  made  l)y  the  donor;  he  viKst  take  tJic  gift  with  its  comlitioHs 
or  not  at  all."  It  was  claimed  in  this  case  that  the  court  below 
should  have  instructed  Hie  jury,  in  effect,  that  under  the  fa'ets  in 
the  ca^x,  the  gift  to  be  binding  and  irrevocable  must  be  com|)l(jte(l 
by  delivery  to  the  donee  by  the  giver,  or  by  his  authority,  without 
conditions  ;  or,  if  conditions  ivere  imposed,  that  they  were  complied 
with  hy  the  donee.  Here  again,  the  gross  error  in  elementary  law 
was  not  even  contended  for,  that  there  could  not  be  a  conditional 
gift  inter  vivos  of  jiersonal  property.  The  Supreme  Court  h'  ' 
that  the  jury  should  have  been  instructed,  as  here  contended 
that  if  the  tannery  and  stock  were  given  to  the  son  upon  , 
condition  that  he  should  keep  sober  and  attend  to  his  business,  or 
other  condition,  which  the  son  did  not  comply  with ;  or  that  ho 
afterward  abandoned  the  right  to  the  donor  or  his  agent,  then  he 
acipiired  no  riglit  thereto  or  to  any  part  thereof  which  he  could 
enforee  in  the  action.  And  the  court  also  held,  as  the  conditional 
gift  was  made  through,  an  agent,  that,  whether  the  donee  had  or 
had  not  knowledge  of  the  terms  or  conditions  of  the  gift,  he  was 
alike  bound  by  such  terras  and  conditions;  that  he  acquired  tli<j 
gift  subject  to  them,  and  his  title  only  became  absolute  on  thoir 
])erformance  by  him.  The  language  of  the  court  in  full  on  tliia 
point  is :  — 

"  If  the  donee  had  knowledge  of  the  terms  of  the  gift,  of  coune 
lie  could  not  acquire  a  title  by  receiving  the  property  in  violatioa 
of  such  terms.  And  even  if  he  did  not  have  knowledge  of  the 
terms  of  the  gift  (but  about  which  there  can  be  no  controversy), 
and  received  the  property  from  the  donor's  agent,  he  could  not 
acquire  a  better  title  than  the  agent  was  authorized  to  confer; 
and  the  donor,  in  either  case,  would  not  be  bound  by  his  simple 
failure  to  repudiate  it.  If  the  donee,  in  the  belief  that  his  title 
was  good,  had  changed  his  situation  and  expended  money  or  tho 

1  81i  Pa.  227.  2  31  io„.a^  415, 


^ART  II.  J 


GIFTS  DisTimvmKn. 


.';'■'^  t^'on  tl,c  donor  mf.W,.  ,.    ,  .  61 

'"'"''■  ^'y  ^''0  donor     7/      '"^''''°  ^''"  tmns  (o  n,  .''''"•>'  '"•'"- 

••,M,.|o„bk>d."  ''''^'  ^*  '«  80  Clearly  j.^      '.  ."'""'"'  ''^  "»- 

'^'''"  •'^•""o  prmcinlo  .  .  '""'^''^t,t  should   bo 

''^>  condihon.  1    3  '  f  ^•^''•ning  those  cases  /       „ 

^''"  '■-•"t  case  in  f       r'''^'''''''"^'too,n'e  Jr    ^^^^  "''-^'"'o  on 
^^^'0,  of  ^fa.:  0  V^j^"/""";"  ^'-'-^  o  ^"  ";;'"'  ';""^'"'^  '» 

"f  •'•••i.l  ci,il.„.o„  J  h  .0  r  "'""  "P  '»  ca      of"  '""'•  ;•  '■■^'••q.l/n,. 

•"■.'"  "f  <l,c  notes  to  i't      "''^'''•'''W,  tl,o  ,-cfc,.„o  f      "/'    ""'  •■""U'i,>t 
''"".an.,:;;  :  ';-p'i"t„o  e„,.,i,;     ,;  --"X.  ,„  ,„.,.  ,t 

^■^"«^cd  tJ,o  pronerfJi!  !?    '"'"'  ^^''^^^0"t  cond    ;         ""^'^'id'"tional 

"■"-a,  gito  i„::^°^  course,  sustainL;';]:",'  -,,--■  '-i- 

"^v  01  con- 


•'..( 


'  ^ 


i^' 


<i 


i  ! ;  • 


62 


COMMENTARIES  ON   SALES. 


[book  I. 


So  in  Ducland  v.  Rousseau,^  a  woman  mac'e  a  aonation  to  another 
woman  about  to  marry,  and  her  children,  of  the  right  of  habitation 
in  a  house  in  New  Orleans,  and  of  certain  rights  of  use  of  the 
town-lot  on  j)art  of  which  it  was  built,  on  condition  that  in  case 
of  the  sale  of  the  property  by  the  donor,  or  of  the  death  of  the 
donor,  thoso  rights  of  use  and  habitation  should  cease  to  exist, 
and  the  donor  or  hor  succession  should  in  either  case  pay  the 
future  wife  the  sum  of  iJlOOO  as  an  indemnity,  within  one  month 
from  the  death  or  sale.  This  conditional  gift  was  sustained,  the 
court  holding  that  every  condition  attached  to  a  donation,  must  he- 
performed  in  the  manner  that  the  parties,  hy  the  terms  of  the  ylft, 
intended.  Again,  in  Eskeridgc  v.  Farrar,^  where  it  was  held  that 
an  executor  may,  under  suitable  facts,  maintain  an  action  to  annul 
a  donation  inter  vivos,  made  by  his  testator,^  it  was  also  hold 
that  where  a  condition  on  which  a  donation  inter  vivos  was  made 
had  not  been  co?nplied  with,  the  donation  might  be  revoked  whether 
the  property  donated  was  in  the  possession  of  the  donee  or  his 
assignee.'* 

The  very  recent  case  (December,  1889)  in  the  iSupremo  Court  of 
New  York,  of  Ridden  v.  Thrall,^  although  nominally  holding  that 
th'j  gift  was  good  iiortis  caimt,  is  a  valuable  one  on  the  question 
of  co-iOitional  gifts.  As  the  gift  in  this  case  was  on  an  erprrss 
condition,  it  is  quiLe  immaterial  whether  the  gift  was  sustaiiuible 
or  not  as  a  donatio  mortis  causd ;  with  reference  to  which  tlie  court 
evidently  was  not  without  doubt.^  The  gift  was  an  imqucstionably 
good  conditional  <jift,  whether  it  be  called  a  gift  inter  vivos  teclnii- 
cally,  or  that  kind  of  a  gift  inter  vivos  technically  called  a  donatio 
r.iortis  caw.d.  Strictly,  we  think,  if  the  donor  "  died  of  a  disease 
and  from  a  cause  which  he  did  not  anticipate,  and  from  a  \.vy\\ 
wliich  he  did  not  foresee  when  he  made  the  gift,"'^  the  gift  was 
not  really  such  a  gift  as  is  technically  known  as  a  donatio  mortis 
causa ;  as  that  gift  only  takes  effect  wlien  the  death  results  from 
"  a  contemplated  peril."  But,  in  that  case,  the  gift  is  simply 
changed  (when  the  condition  is  expressed,  as  in  this  case,  and  not 
merely  implied,  as  it  may  be  in  a  gift  mortis  caiisd')  into  a  condi- 
tional gift  inter  vivos  ;  and  the  condition  having  been  literally  per- 
formed, the  property  in  the  gift  to  the  donee  vests  absolutely  'n 
him. 


>  2  Ln.  Aim.  16S. 

2  30  l,a.  Ann.  718,  722. 

"  Ami  si'o  llui's  Executors  v,  Boni,  6 
La.  1!.  ((>.  S.),  <J7. 

*  Ami  SCO  Fiazicr  v.  Perkins,  62  N.  II. 
69,  wliiMv,  with  a  gift,  a  suggestion  was 
made  l>y  tlie  (lienor  tiiat  the  money  should 
be  depo.sited  in  a  savings  Lank  iu  the  tiaino 


of  the  donees  j  and  the  suffgestion  was 
held  to  be  not  h  niniHtion  or  limitation  nf 
tht  gift,  but  was  merely  advisory,  and  that 
the  gift  being  for  the  benefit  of  tlii' doiitcs, 
their  aeeeptanco  of  it  woiiiu  be  presututd. 

6  55  Hun,  185. 

«  See  p.  190. 

1  Page  189. 


GIFTS   DISTINGUISHED. 


68 


We  return  now  to  the  very  late  and  important  case  on  the  sub- 
ject, of  Ridden  v.  Thrall.*  There,  E.,  being  ill  of  hernia,  and 
about  to  go  to  a  hospital  to  submit  to  a  surgical  operailoa  there- 
for, he  said  to  his  friend,  the  plaintitT,  that  h .  was  going  to  the 
hospital  to  have  an  operation  performed,  and,  if  he  did  not  re- 
turn, a  box  and  contents,  which  he  gave  to  the  plaintiff,  he  wished 
tlic  plaintiff  to  have.  The  plaintiff',  having  the  box  in  his  posses- 
sion, stated,  in  presence  of  E.,  to  a  third  person,  that  as  E.  was 
ffoing  to  the  hospital,  "  if  he  doesn't  return,  ihc  box  is  for  me  to 
keep  as  my  own  ;  "  to  which  remark  E.  asse  ited.  On  the  plain- 
tiff endeavoring  to  cheer  E.,  who  was  appreher.'-ive  of  the  result, 
t'lo  latter  said  that  he  did  n't  fear  the  operation,  but  he  feared  the 
lesult;  evidently  fearing  that  he  would  die  as  the  result,  of  the 
operation.  He  went  to  the  hospital  on  the  2nd  of  October,  1888, 
and  never  returned.  The  operation  was  performed  on  the  .'jth, 
l)ut  he  did  not  die  until  the  t6th,  and  then  the  cause  of  his  death 
was  mifocarditiii,  or  a  thinning  oi!  the  muscular  fibres  of  the  heart. 
The  question  arose  whether  the  property  in  the  box  and  contents 
passed  by  tlie  gift  to  the  plaintiff,  or  not ;  and  the  court  hell  that, 
it  (litl, 

On  the  ground  that  Virgin  v.  Gaither^  and  Gass  v.  Simpson^ 
are  sustainr.ble,  as  express  conditional  gifts,  wliich  un^ucstion- 
al)ly  ca:.  be  wade,  notwithstanding  the  utterly  absurd  position  to 
the  contrary  in  Smith  v.  Dorsey,*  Irish  v.  Nutting,"  and  in  Dcx- 
licinierv.  (Jautier;^  the  ease  of  Ridden  v.  Thrall,"  holding  that  by 
tlie  conditional  gift,  and  jjerformance  of  "  the  only  condition  im- 
prcsssed  upon  the  gift,'  the  property  therein  vested  in  the  plain- 
tiff, is,  we  think,  without  going  to  the  length  of  holdiug  that 
the  facts  met  all  the  peculiar  requirements  of  a  donatio  mortis 
eaiim,  manifestly  well  decided. 

And  the  decision  in  this  case,  in  the  Supremo  Court  of  New 
York,  ii.i  in  the  myriads  of  cases  where  conditional  gifts  inter 
vli'itH  of  both  real  and  personal  property  arc  made,  in  marriage 
sol'lements  and  in  trust-deeds,  —  and,  therefore,  w  i.  -re  the  subject 
of  the  gift  admits  of  it,  such  gifts  can  as  well  I'  made  by  parol, 
accomjKinied  with  delivery,  —  shows  clearly  that  .■>iiiith  v.  Dorsey^ 
was  badly  decided  ;  as,  also,  outside  of  the  mere  technicality  on 
wliich  they  were  made  to  turn,  were  the  N';W  York  cases  of 
Irish  V.  Nutting,^  and  Dexheiraer  v.  Gautier.^'' 


1  55  Ilun  {62  X.  Y.  Sup.  Ct),  185. 

«  42  111.  3;i. 
»  4  Col.lw.  283, 

*  38  1 11,1.  451. 

*  47  Barl>.  370. 


«  34  IIow.  Pr.  472 
'  55  Hun,  1>S5. 

8  3S  IikI.  451. 

9  47  Burl-   370. 

">  34  1..  .-.  Pr,  472. 


M 


illUilraiRa 


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!..!. 


■>'  ;; 


!■. 


.'•ss     »      it 


t  ;■ 


:    l\    -5' 


liliPI 


Hi 


1.  i 


■'     ^  ;  i     i 


64 


COMMENTARIES  ON  SALES. 


|_BOOK  I. 


In  Ridden  v.  Thrall,^  the  court  say,  Dykman,  J.,  delivering  the 
judgment :  — 

"  Tiiere  is  no  reason  why  gifts  should  not  be  upheld  as  well  aa 
sales.  Both  are  based  upon  the  right  of  all  people  to  do  what 
they  will  with  their  own.  Gifts  are  made  witliout  money  and  with- 
out i)rice,  from  motives  of  affection  or  esteem.  .  .  .  Tlie  sales 
throughout  the  world  are  made  verbally,  and  perfected  by  physi- 
cal transfer  and  acceptance  of  the  subject,  and  gifts  are  made  in 
the  same  way  and  consummated  by  delivery,  and  one  method  of 
transfer  should  be  as  free  as  the  other.  Devises  and  boiiuosls, 
like  donations  mortis  causd,  are  but  gifts  to  take  eiXcct  absolutely 
only  upon  the  death  of  the  giver ;  and  if  they  arc  to  be  sur- 
rounded with  safeguards  beyond  those  requisite  in  transactions 
between  the  living,  let  it  be  so,  but  let  not  the  intention  of  the 
donors  be  defeated.  In  this  case,  the  donor  intended  to  give  the 
box  and  its  contents,  if  he  did  not  return  from  the  hospital,  to 
the  plaintiff,  and  the  evidence  manifests  the  i)resence  of  every 
element  necessary  to  constitute  a  gift  in  prospect  of  death.  It 
never  was  revoked,  and  the  donor  never  returned  from  the  hospi- 
tal, and  never  recovered  from  the  illness  from  which  ho  was  suf- 
fering at  the  time  when  he  made  the  gift.  Much  is  said  by  the 
appellant  respecting  the  immediate  cause  of  the  death  of  the 
doner  at  the  hospital,  and  the  contention  is  tliat  he  died  of  a 
disease  and  from  a  cause  which  he  did  not  anticipate,  and  from  a 
peril  whieh  he  did  not  foresee  when  he  made  the  gift ;  but  there 
is  no  insistence  that  he  recovered  from  the  illness  or  survived  the 
peril  from  which  he  apprehended  his  death.  When  he  made  the 
gift  he  was  under  the  shadow  of  a  great  danger.  He  was  about 
to  submit  to  a  surgical  operation  which  he  apprehended  would  be 
serious  and  might  be  fatal,  and  if  he  never  returnrd  from  the  ho>i- 
pital  the  property  was  to  belonr/  to  the  plaintiff'.  His  return  was  (he 
only  condition  impressed  upon  the  tjift,  and  there  is  no  reason  wJiji 
the  court  should  impose  another  or  any  additional  continucm-ii."' 
Hence,  whether  or  not  the  case  met,  literally,  all  the  rciiuirciucnts 
of  a  technical  donatio  mortis  causa,  it  was  a  good  conditional  uiit; 
and,  the  condition,  and  "  the  only  condition  impressed  updu  the 
gift,"  having  beon  performed,  the  propei'ty  therein  vested  abso- 
lutely in  the  donee  ;  as,  under  analogous  facts,  it  did  in  Virgin  v. 
Gaither,''^  Gass  v.  Simpson,'^  Smith  v.  Dorsey,*  Irish  v.  ^wii'wvi;' 
and  in  Dexheimer  v,  Gautier.^ 

In  the  very  recent  New  York  case  (a.  d.  1890),  of  Ilamcrv. 


»  56  HuTi,  at  p.  189, 

•  42  111.  39. 

*  4  Coldw.  288. 


•  38  Ind.  451. 
»  47  Barb.  370. 
«  84  How.  I'r.  472. 


PART  II.J 


GIFTS  DISTINGUISHED. 


«Hhvay,i  the  transaction  wa.  n  .  '  ^^ 

-^^"^^^1!^'::^^^  ^  sri;;^. --f  ona, ,.. 

pmuiso  to  give  ij,"^  !'  ?«  ^'^J^  not  to  be  a  ^^'  * '«  «"Mect 
less  toxt-vv'W  e';  i„  ^  '  "^  "'^  «^'"«o  u,  which  thf'  ^"^  "^^''^J^'  a 
^^aM,f.  ,/      »  ?  "I'f  ^'^""t'y  liuvo  used   J  Of     '""'''"''^'^^  care- 

«.«  in  „,„-e,,  ..far^^"":;^  ;°"-"l;  it  is  not  "  „i,,,„,„to  "  ;„  „ 
"■I'icl..  f  ;,„,  ,,      n"  "'"^  '"^IJ  "'.'.t  ,vl  cro  a  Sr  •  "    '''■"=''^'"  '■■ 

»i^'i.t  i.av:",:  t:s ;°'':;'°",  ^•-■^'•'■«  ".c?  e 'r , r-  ■":'<'° 

Cfas.,,1,  ti,„  ,i„„„    ,    J  ""  %  "lo  donor  •  int  „  '  ,.      ""'  I'artics, 


I  ill'     (I 


^^i-  it  became 


"""«-iuo ,„:,;•..■'.'/ '  ,;t':"'»'™ """ '-  i.Mi  ;;;7'".'■'• 
;  57  ii„„,  oo(,.  J^^tto^^h^tare  vir- 
^^^»  Slu,hv..l]  ..  S).a.I«.eII.  96  C.  B.  x  s      n,  "  "'"^  "•    Tmis.    8    M    *    .r 


«      ''.'181 ''I  I 

li       •*  in 


1 


i  ■ 


ri 


■!;•  i 


! 


'i     3 


66 


COMMENTARIES   ON  SALES. 


[Bv,OK  1. 


tually  conditions,  viz.,  reservations  or  limitations.  Thus,  in  quite 
an  old  case  in  North  Carolina,  where  there  was  a  gift  of  a  chattel 
from  a  father  to  his  daughter,  with  a  reservation  to  the  donor  of 
a  life-estate  therein,  it  was  held  that  the  gift  was  good,  and  that, 
the  daughter  having  survived  her  father,  the  pi'operty  in  the  chat- 
tel vested  absolutely  in  her  at  his  death.^  So  in  Seavey  v.  Seavcy2 
(a.  d.  1888),  a  gift  of  promissory  notes,  with  a  delivery  to  A., 
with  the  condition  or  reservation  that  the  donor  was  to  have  tlie 
interest  on  them,  or  such  of  it  as  he  might  need,  as  long  as  he 
lived,  and  that  at  his  death  the  notes  were  to  b-  equally  divided 
between  his  two  daughters,  was  held  by  the  Court  of  Appeals  in 
Illinois,  affirming  the  judgment  of  the  Circuit  Court,  to  be  a  good 
gift  inter  vivos. 

Love  V.  Francis^  is  to  the  same  effect.  The  law,  without  any 
reference  to  such  an  absurdity  as  that  a  gift  inter  vivos  cannot 
be  made  with  a  condition,  or  reservation,  or  limitation  attached, 
is  well  stated  as  to  the  essentials  of  such  a  gift,  in  this  case  (at 
p.  190),  thus  :  "  To  constitute  a  valid  gift  inter  vivos,  there  must  be 
a  delivery  of  the  thing  given,  either  actual  or  constructive.  It  is 
not  necessary  that  it  be  delivered  to  the  person  intended  directly. 
It  may  be  delivered  to  some  person  for  him,  or  to  a  trustee  for 
that  purpose,  and  in  all  cases  such  a  disposition  of  it  must  be 
made  in  favor  of  the  donee  as  effectuates  the  object,  and  places 
the  jus  disponendi  beyond  the  power  of  the  donor  to  recall. 
Under  some  circumstances  the  donor  may  constitute  himself  trus- 
tee of  the  thing  for  the  benefit  of  the  donee."* 

In  Ellis  V.  Secor,^  where  the  donor  mar  _■  a  gift  but  reserved  a 
life  control,  the  Supreme  Court  of  Michigan  (at  p.  189),  in  sustain- 
ing the  gift  as  a  donatio  mortis  causa,  correctly  stated  that  si'ch 
gifts  were  neither  more  nor  less  than  a  branch  of  voluntary  gi^s 
and  settlements ;  ami  in  the  case  of  gifts  of  choses  in  action,  tlioy 
fall  generally  under  the  doctrine  of  trusts  and  equitable  assign- 
ments ;  adding :  "  The  cases  arc  abundant  where  such  transac- 
tions have  been  maintained,  where  the  technical  phrase  donatio 
mortis  causa  is  not  referred  to." 

Such  cases,  in  vast  numbers,  which  are  really  conditional  gifts  of 
real  or  personal  property  inter  vivos,  by  deed  or  by  parol,  will  bo 
found  in  the  authorities  we  have  cited  in  this  Part,  on  Conditioiir?. 

So  in  the  old  case  of  Johnson  v.  Smith,^  where  there  was  a 
gift  by  deed  to  an  illegitimate  daughter.  Lord  Hardwicko  held  that 
from  the  facts  it  was  not  to  be  treated  as  then  absolutely  passing; 

J  Duncan  v.  Self's  Admrs.,  1  Murph.  ♦  Ellis  v.  S.cor,  31  Mich.  185;  Green 

(N.  C.)  466.  V.  Langdon,  28  Mich.  221. 

«  30  111.  App.  625.  6  31  Mich.  185. 

8  63  Mich.  181.  »  1  Vc».  Sen.  314,  816. 


th 

gil 
de; 
wit 
anc 
the 

of 


8 

*  i'l-i 


PIRT  II. J 


GIFTS  DISTINGUISHED. 


the  entire  propertv  in  fi        .  67 

gift  mortis  caus^  f n  /,     ^''^^"^^^  ^f  the  ffmnf  u  . 

^vith  a  reservation  of  f.  ^'"^^^^^  ««  a  kind  oT   I  ^"^  ^""^^'s 

and  it  u.a.s  dec   ^d  t  .1' ' /"f  *  «^  ''^^  ^'""or    n  ^^  ^' f .  ^'^f^  ^^'vos, 
tho  personal  cst.f.  ^*  '"'^  ^^'^^'^  the  dau.    /         '""  ^"«  ^''^o; 

of  JJennett  ?;.  Cook  i  ,,    "\,^^'<jJ'"a  case  CXovomi 

^^•^""--  v.nere  tl,e  gif  ;'l^/^^\'»  ^I.e  same  Sta  e  in  1  i?^"'*^' 
condition  that  if  thn  \  ^  ^^  ''^  «'avo  ffi,.]  .,„,  ^^'^'  "'  ^^ckane  v. 
could  bo„.„:\t"^,  ™- .ever  '""'>■  "P  itr^jr''  ''•""  '"« 
must  p„v  sometl,i,rr       '      ""^  <•»"<"■  stood  i„  i    ?  »»«">,  she 

'r«'"i«-"aw  SCV/'t'"^''  "^  at,,r4-''.'"o  donee 

a  sav  n<ns  hint  f    m  ^    O^ocember  7S«p\     ^  . 

^"■'n'  to  Imve  the  ill      T^  ^'''  ^'^e,  and  J,is  w  1    p   f  ^'"^  '''^''  to 

tJ'osame  moncvto  I    .°'  «"J>sequentJr  undorV       5"' '"^^  «"«- 

An  analoC,s  .?f/°      '  ^''"^^''t^r  b>  a  will  ^^^  *^  ^"oatli 

'^^J'o  ve^rSon^l^'"''^'^'■"^''''nf  iaLon  .  p^^^      ^^^'^^'^^  '"valid 

to  take  ek'ct  tnT'f^^*'  '^^Idin J  tlat  ;    t.^^?^  "^  %^^^-ton 

^W..  ./...r''  '^'"^^^^•""J^  at  the  do„;^s  d^,^'^^  ^^'^i<^'^  ^vas  only 

^W  of  the  English  to.      •  '''^^'' ^^"^^  ^  good  gift 

^"s^r     o,  "or  unconditi()n.1I^        "^'' 

i  1  ,.  •,'^f:  ^-w,  363.  '^I'uonal),  accom 


c  \'*  f'-  tar.  648, 
2^;V'"'.  «!'3;  Stone '.^'^'r;*'^'"'"-'"'- 

;V.;ke,..s„„  ..   ^:  ,:;;''''-ntt,   32   Md.   rt 


/^•■•nk,  IW  Mass.  1.-57   i.r     .    • 

""s  <a.s,.s  to  til,.  .sainJ  ^if'f-'-y  V"-'  '"""iT- 

:;./'•/  ''•'''''■son     7;.  ■V'-'t;.  w. & 

«  Vi-s.  663.      See,,;/,"'"'",''-   Kllfso,,. 
/,^«P-  (4th  cfl.).  1", g"  ;/\".^li.  on  K,, 


68 


COMMENTARIES  ON   SALES. 


[book  I. 


m'  m 


H 


panied  with  the  due  delivery,  where  the  gift  is  not  by  deed  or 
testamentary  instrument,  of  the  subject  of  the  gift ;  ^  and  not  a 
mere  promise  to  give,  or  inclioatc  gift. 

In  fact,  it  is  entirely  patent  that  conditional  gifts  of  personal 
property  can  be  made,  whether  by  parol,  or  by  deed,  or  other  in- 
strument, or  by  will ;  and  such  gifts,  as  we  have  seen,  can  be 
made  eitlier  inter  vivos  or  mortis  causa  ;  and  scores  of  the  cases 
cited  and  referred  to  in  the  authorities  we  have  examined  show- 
that  they  can  so  be  made. 

The  general  doctrine  of  conditions  is  as  applicable  to  gifts,  con- 
sidered as  contracts,  as  to  any  otlier  contracts,  and  the  law,  as 
correctly  stated  by  Judge  Story ,3  is  very  far  from  excepting  gifts 
from  the  rule  he  there  lays  down,  thus  :  — 

"At  law  (and,  in  general,  the  same  is  equally  true  in  equity) 
it  a  man  undertake  to  do  a  thing,  either  by  way  of  contract  or  hi/ 
way  of  condition,  and  it  is  practicable  to  do  the  thing,  he  is  bound 
to  perform  it,  or  he  must  suffer  the  ordinary  consequences;  that 
is  to  say,  if  it  be  a  matter  of  contract  he  will  be  liable  at  law  for 
damages  for  tlie  non-performance  ;  if  it  he  a  condition,  then  his 
riffhts,  dependent  upon  the  performance  of  the  condition,  ivill  l>e 
gone  hi/  the  non-performance."  "* 

We  find  among  the  many  American  writers,  whose  use  of  the 
terms  "  absolute  "  and  "  unconditional  "  in  connection  with  gifts 
has  tended  to  mislead  courts,  and  to  cause  wrong  decisions  to  t)0 
given,  at  least  one  American  writer  who  correctly  states  the  law 
specifically  on  the  subject,  without  contradiction,  or  improper  qual- 
ification, thus : — 

"  A  gift  may  be  made  in  the  alternative,  or  so  as  to  put  tlie 
donee  to  his  choice  ;  in  which  case  such  choice  must  be  made  by 
him  before  delivery  and  acce})tanco  can  take  effect.  And  ax  to 
conditions  in  general,  the  usual  rides  tvould  apply.  Thus  an>i  law- 
ful condition  precedent  imposed  hi/  the  c/iver  cannot  he  repudliitcd 
by  the  donee  ;  nor  will  the  latter^ s  title  vest  until  he  has  perfo'iiwd 
the  condition;  on  the  other  hand  .  .  ,  the  yift  becomes  comjih'te 
throiii/h  compliance  with  the  condition.  If  the  condition  fails,  the 
thing  may,  as  a  rule,  be  recovered  cither  from  the  douce  or  liis 
transferee.  And  it  is  an  equity  rule,  that  where  there  is  nu  nl)- 
solute  gift  with  some  illegal  condition  or  limitation  annexed,  tlic 
limitation  fails,  and  the  donee  may  retain  the  whole."  ''' 

And  in  Whiting  v.  Barrett,"  the  court  went  to  the  extent  of  hold- 
ing that  where  the  owner  of  p  rsonal  ])roperty  makes  a  verbal  liitt 


1  See  Coclirane  v.  Moore,  25  Q.  B.  Div. 
57;  Irons  v.  Sniallpiece,  2  B.  &  Aid.  at 
552,  per  Abbott,  C.  J. 

«  2  Blk.  Com.  441. 

•  Story  Eq.  Jur.  §  1302. 


<  And     see    fnrtlier,    on    Conditions, 
Story's  Kq.  Jur.  §§  1302-1 3'2ti. 
*  2  .Sohoul.  Pel's.  Prop.  §  128. 
«  7Laus.  (N.Y.)  IC  ,  109. 


PART  II.] 


GIFTS  DISTINGUISHED. 


69 


to  another,  such  other  acquires  a  perfect  title  if  he  gets  possession 
of  it  before  revocation  of  the  gift  by  tlie  donor,  although  the  sub- 
ject of  the  gift  *vas  not  present  when  the  gift  was  made,  or  it 
was  not  even  in  esse  at  the  time.  At  the  time  "  the  gift  was 
made  "  here,  it  was  a  mere  inclioate  gift,  and  was  very  far  from 
bi'iiig  "  absolute  "  in  any  sense. 

lu  the  very  recent  case  of  In  re  Richards,  Shonstone  v.  Urock* 
(a.  u.  1887),  Miss  Richards  gave  her  i»romissoi'y  note  to  C,  to  be 
dL'livored  at  her  death  to  E.  II.,  subject  to  the  condition  that 
E.  II.  should  continue  to  live  with  the  donor  until  her  death. 
After  the  donor's  death,  E,  H.  claimed  the  amount  of  the  note 
from  Miss  llichards's  estate,  on  the  ground  that  there  had  been  a 
complete  gift  of  the  note  to  her,  subject  only  to  the  condition  that 
she  should  remain  in  the  service  of  Miss  Richards  until  the  death 
of  the  latter,  and  that,  that  condition  having  been  fullilled,  E.  H. 
was  entitled  to  the  amount  of  the  note.  The  court  sustained  the 
conditional  gift,  and  held  that  if  the  ,£200  had  been  paid  in  cash 
into  the  hands  of  C,  the  gift  would  have  taken  efl'ect,  in  case  ihe 
donee  should  have  fulfilled  the  prescribed  condition ;  and  that  it 
was  not  necessary  for  the  completion  of  a  voluntary  gift  that  the 
money  should  have  been  paid  over  in  cash  into  the  hands  of  the 
jicrson  who  was  intended  to  receive  it ;  it  being  suflicient  if  there 
was  either  a  complete  transfer  of  the  property  in  the  note,  or  a 
declaration  of  trust  of  it.^ 

A  proposition  was  made  by  the  Supreme  Court  of  the  United 
States  in  the  frequently  cited  case  of  Basket  v.  Ilassell,^  that 
where  a  condition  annexed  to  a  gift  is  a  condition  ])recedent,  and 
wliore  the  contingency  contemplated  is  the  donor's  death,  the  gift 
cannot  be  executed  in  the  donor's  lifetime,  and  consequently  can 
never  take  effect.  This  proposition  is,  we  think,  radically  unsound. 
If  it  were  correct,  not  only  would  Ridden  v.  Thrall,*  which  we  have 
previously  examined,  be  expressly  wrongly  decided,  but  the  cases  of 
Virtrin  v.  Gaither,^  and  Gass  v.  Simpson,^  and  numerous  otlier  eases, 
English  and  American,  could  not  be  supported.  But  we  think 
that  it  is  quite  clear  that  the  proposition  cannot  be  sustained." 

1  :!H  I'll.  Div.  541. 

2  S,.,.  Llov.l  V.  Chnnc,  2  Oiff.  441; 
Bonii  1.1  V.  liasscll,  32  Ikav.  21";  Arthur 
i'.Cl;iikM)n,  35  IJeavv  458;  Hallu.  Palmer, 
3  liaiv,  W.Vl. 

3  107  U.  S.  602,  616. 
*  55  Ilmi,  185. 
»  4J  111.  39. 
"  4  ( 'oMw.  288. 
'In  the  very  recent  case  (a.  n.  18S7) 

in  Vjii,'iMia,  of  Sterling  v.  Wilkinson,  83 
V:i.  7'.'1,  the  jirinciple  .stated  in  Basket  v. 
Hiissill,  107  U.  S.  GO",,  616,  was  acted  on, 
wliiiu  there  was  an  assignment  of  bonds  to 


a  third  party,  the  iiitere.st  on  tlu'rn  tr.  he 
paid  to  the  loiior  for  life,  mid  in  I'ase  of 
Lis  death,  the  "  ineipal  was  to  he  divided 
belvVi-on  liv"  •  irties  named;  and  tills  very 
conimnn  *"  .a  of  gift  was,  undei-  the  un- 
sounil  d'uiim  of  the  Supreme  ( '<iurt  of  the 
ITiM-ed  .States  in  Ha.sket  i'.  llasMll,  107 
U.  Si.  602,  616,  held  void.  Ohvionsly,  to 
mak'i  such  a  gift  vr>.ih\,  and  not  testamen- 
tary, there  must  be  eitlier  a  delivery  of 
the  subject  or  the  creation  of  a  trust,  and 
the  lan^^uage  used  must  not  bo  testamen- 
tary in  ito  character. 


\:V':.' 


wm 


70 


COMMENTARIES  ON  SALES. 


[book  I. 


In  the  late  English  case  of  In  re  Richards,  Shenstono  v.  Brock,^ 
above  stated,  the  condition  of  the  gift  taking  effect  in  the  doneo 
was  a  condition  precedent,  and  the  contingency  contemplated 
was  the  donor's  death,  and  her  title  to  the  subject  of  the  gift  was 
held  to  vest  al)solutely  in  her  on  the  performance  of  the  condi- 
tion. So  in  Lloyd  v.  Chunc,^  "  the  contingency  contemplated  " 
was  "the  donor's  death,"  and  the  gift  was  held  good.  Hull  v. 
Palmer,^  is  to  the  same  effect,  where  the  gift  was  by  deed.  Other 
English  and  American  cases  to  the  same  effect  might  be  cited 
indefinitely,  in  addition  to  the  numerous  cases  we  have  already 
examined. 

We  think  that  the  mistake  made  by  the  United  States  Supremo 
Court  in  Basket  v.  Ilassell  *  was  caused  by  their  considering  that 
a  gift  which  was  only  to  become  absolutely  operative  on  the 
contingency  of  death,  must,  therefore,  bo  testamentary  in  its 
character.  Such  —  as  not  only  the  above  cited  English  cases,  but 
numerous  other  well-decided  English  and  American  cases,  many 
of  which  we  have  cited,  show  —  is  not  the  case. 

A  gift,  when  testamentary  in  its  character,  will,  of  course,  only 
take  effect  by  virtue  of  a  valid  will,  and  at  the  death  of  the  tes- 
tator. A  case  of  that  nature  is  Mitchell  v.  Smith,^  where  the 
language  indorsed  on  notes  delivered  by  the  holder  to  S.,  was, 
"  I  bequeath ;  pay  the  within  contents  to  S.  or  his  order  at  my 
death  ;  "  and  it  was  held  that  the  phraseology  of  the  indorsement, 
connected  with  the  remark  of  the  donor  that  he  wished  to  be 
master  of  the  notes  as  long  as  he  lived,  but  that  at  his  death  S. 
should  have  them,  w  held  to  show  that  nothing  more  than  a 
testamentary  disposition  was  intended. 

So,  in  Basket  v.  Hassell  ^  itself,  an  indorsement  on  a  certificate 
of  deposit,  "  Pay  to  13. ;  no  one  else  ;  then  not  till  my  death.  My 
life  seems  to  be  uncertain ;  I  may  live  through  this  spell.  Then  I 
will  attend  to  it  myself,"  was  held  not  to  take  effect  as  an  exe- 
cuted and  complete  transfer  of  the  certificate  of  deposit  to  the 
donee,  of  possession  and  title,  cither  legal  or  equitable,  during 
the  life  of  the  donor ;  that,  in  effect,  the  indorsement  was  an 
abortive  attempt  at  a  testamentary  disposition. 

These  cases  may  have  been,  and  we  think  were,  quite  well  de- 
cided, without  affecting  those  which  hold  that  where  there  is  an 
actual  gift  in  prcesenti,  with  delivery  of  the  subject,  the  gift  to 
become  absolute  in  futuro,  on  the  condition  being  performed, 
though  the  contingency  be  the  death  of  the  donor,  as  in  In  re 

J.  &  S.   422  ;   10  L.  T, 


1  36  Ch.  Div.  541. 

a  2  0itr.  441. 

8  3  Hare,  532. 

*  107  U.  S.  at  p.  616. 


8  4   De  G. 
N.  s.  520,  80'. 
«  107  U.  S.  602. 


PART  II.] 


OIPTS  DISTINQUISHED. 


71 


Richards,  Shcnstone  v.  Brock,i  Ridden  v.  Thrall,'  Virgin  v. 
Givithcr,''  Gass  v.  Simpson,*  Smith  v.  Dorsey,^  Irish  v.  Nutting,**  and 
ill  Doxhcimcr  v.  Gautier,'  there  is  a  valid  conditional  gift,  to  be- 
come absolute  on  the  performance  of  the  condition,  or  to  be  defeated 
(as  tlic  distinction  in  these  cases  on  the  jjoint  involved  in  them, 
between  what  are  called  conditions  precedent  and  conditions  siihse- 
qumt,  is  more  fanciful  than  real)  on  the  failure  of  the  condition. 

In  tlie  old  North  Carolina  case  of  Thompson  v.  McDonald,*  the 
fallacy  of  the  court  in  Basket  v.  HassoU  '■'  is  well  shown.  There 
C.  executed  in  Scotland  (as  is  common  there,  as  well  as  in  Eng- 
land, Irohind,  etc.)  a  trust-deed,  making  dispositions  of  real  and 
personal  pr(j|)erty,  to  take  effect  after  the  death  of  the  donor,  and 
dependent  on  her  death  as  an  event  necessary  to  the  full  execution 
of  the  dispositions  of  the  deed.  It  was  alleged  in  the  bill,  that,  in 
the  deed,  the  donor  used  the  language,  "  1  bequeath,  assign,  and 
convey,"  and,  in  the  same  instrument,  that  she  constituted  her 
trustees  her  "  sole  executors."  It  was  claimed  that  this  instru- 
ment could  not  operate  as  a  deed,  because  its  dispositions  were  in 
their  nature  merely  testamentary.  But  the  court  held,  and  most 
properly  so,  we  think,  that  the  instrument  operated  inter  vivos, 
as  a  deed;  that  to  render  it  (the  instrument)  testamentary,  it 
should  be  made  to  depend  on  the  event  of  death  as  necessary  to 
its  own  consummation,  meaning  here  its  operation ;  and,  as  the 
general  structure  of  the  instrument  imported  an  immediate  con- 
veyance and  its  immediate  operation  as  a  deed,  that  it  was  not  to 
bo  treated  as  a  testamentary  instrument. 

So  in  the  very  late  North  Carolina  case  (a.  d.  1886)  of 
Egerton  v.  Carr,^"  the  same  principle  was  acted  on  as  in  Thomp- 
son V.  McDonald."  In  Egerton  v.  Carr,i2  K.  made  m  assign- 
ment of  promissory  notes,  by  deed,  to  C,  in  trust,  to  bt  equally 
divided  between  the  grantor's  three  daughters  after  her  death. 
The  notes  were  then  in  the  possession  of  C.  as  her  agent. 
At  the  time  of  the  execution  of  the  instniraent,  the  donor 
oppressed  to  C.  her  wish  that  the  notes  should  be  kept  by  him 
until  her  death,  and  then  delivered  to  the  |)arties  named.  The 
notes  were  payable  to  her  and  remained  unindorsed,  and  remained 
in  possession  of  C.  until  after  the  donor's  death.  In  an  action  by 
her  administrator  for  the  recovery  of  the  notes,  the  jury  found  icr 
the  plaintiff ;  answering,  "  Yes,"  to  the  question  as  to  whether  the 


^pm'-^ 


■H 


:i      ; 


i 


»  36  Ch.  Piv.  541. 
»  r>r,  Iliin,  185. 
»  42  111.  3!). 
<  4  Cal.lw.  288. 
'  38  Inil.  4.51. 
•  47  Barb.  370. 


T  34  How.  Pr.  472. 

8  2  Dtv.  &  B.  Eq.  463. 

»  107  U.  S.  at  p.  616. 
I'J  94  N.  Ciir.  648. 
"  2  D.v.  &  B.  Kq.  463. 
"  94  N.  Car.  648. 


72 


COMMENTARIES  ON  SALES. 


[book  r. 


:■  1  ■ 


plaintiff  was  the  owner  of  the  notes.  On  appeal,  the  Supremo 
Court  of  North  Carolina  reversed  the  judgment,  which  was  rcn- 
dcred  accordinf^  to  the  verdict,  and  held  that  the  instrument  made 
a  present  provision  for  conferriiuj  a  future  benefit  upon  the  oltjects 
of  the  donor's  bounty ;  that  the  action  was  predicated  upon  the 
absolute  nullity  of  the  deed,  or  upon  a  reserved  power  of  revocation 
in  the  donor,  or  upon  the  idea  that  because  the  instrument,  nut 
having  been  executed  as  a  will,  could  not  prevail  as  a  testamen- 
tary instrument,  it  should  fail  altogether.  The  court  disagreed 
with  all  these  contentions.  Smith,  C.  J.,  in  delivering  the  judg- 
ment of  the  court,  said  :  — 

"The  execution  of  the  instrument  was  careful,  and  with  a  well- 
defined  intent,  not  only  conveyed  in  its  terms,  but  orally  made  known 
at  the  time,  to  make  a  present  provision  for  conferriui/  n  future  bene- 
fit upon  the  objects  of  the  donor's  bounty.  It  purports  to  convert 
an  agent  into  a  trustee,  and  to  attach  trusts,  which  the  defendant 
by  his  assent  accepts  and  agrees  to  discharge.  The  trusts  involve 
the  retention  and  management  of  the  securities  thereafter,  not  as 
beff^i'C,  for  the  donor's  benefit  and  under  her  control,  but  to  account 
for  and  pay  over  their  accumulations  at  her  death;  thus  vesting/  a 
present  riyht  in  the  donees  to  have  the  fund  secured,  but  not  to  bo 
put  in  their  possession  until  the  happening  of  a  future  specilicd 
event,  which  must  occur,  though  at  an  uncertain  day.  The  funds 
which  the  donor  declares, 'I  leave'  in  the  hands  of  the  trustee, 
become  his  to  hold  and  manage,  and  finally  divide  among  the 
daughters,  for  which  ends  an  equitable  interest  at  once  is  vested 
in  him.  The  only  feature  which  gives  a  testamentary  aspect  to 
the  paper,  and  upon  which  its  nullity  is  made  to  depend,  is  found 
in  fixing  the  period  of  enjoyment  at  the  donor^s  death,  while  most 
of  them  point  to  a  present  and  inter  vivos  act.  It  is  but  a  partial 
disposition  of  the  intestate's  estate.  A  person  is  designated  to 
manage  the  funds  during  her  life,  and  whose  functions  cease  with 
their  delivery  over  when  she  dies ;  while  the  functions  of  an  ex- 
ecutor begin  just  where  those  of  the  trustee  end.  There  is  no 
reservation  of  authority  or  of  interest  in  them  thereafter,  such  as 
are  implied  in  a  gift  causd  mortis.  These  are  the  qualities  of  a  deed 
rather  than  of  a  will,  and  no  attempt  is  made  to  put  the  instrument 
in  the  form  required  for  the  latter.  'It  does  not  follow,'  wo 
quote  from  the  opinion  delivered  in  Thompson  v.  McDowell,^ '  be- 
cause an  instrument  is  to  produce  important  results  after  death, 
that  therefore  it  must  be  testamentary.  To  render  it  testamentary 
it  is  essentially  necessary  that  it  should  be  made  to  depend  on  the 
event  of  death  as  necessary  to  its  own  consummation.' " 


1  2  Dcv.  &  B.  Eq.  463. 


PART   II.] 

GIFTS  DrSTmouiSHED. 

^'ofwitlistiindino-  Hm  ,  ^* 

*■""/  --onto.  Ttn  J";i*  ■■'?'^'  "^"""'"l  '.»    0  "^o'    ':  >«■•     I'ho 
s'»'«l,.a  .-ourt  of  ?'■,"'.'"'''  "hording  toZ,-  '""""^y,  ami 

lienor  iiovoi- „.„...     ■.'""■"'=''  coujisoi  fo?  m         .    ""'"Ko.    It 

;« » -.0  ■■!;«  ;?;./x''°"-  o,-  li^,-o^o;:;t ,'"»'  "■» 

^'"s  seems  to  us  n„?L      ^      ^"^  ''^"""J  or  rcvoU  h    7i"'^P0'tK, 
am-  ,|,>.,.,,.  '  «."  VV,     *''^  ^'"^^t'O"  of  a  vl-?j  f     ^^^^^at'on  is  nor- 


one 
i-ing 


J'-'l.  f<;tJ.  ,.,!  V    .,,.    '.'^'''1  I  Load.  Cas.  in 


.Jr. 


Mass.   loO;    Love   „    /'  ^''"'''  '"^t-   1''8 

f  /  iKSlt  %!-4  -'■A.ei);> 


■lU 


Si 


>      ! 


<n 


I'  i 


i 


M 


m^' 


1  li 


74 


COMMENTARIES  ON  SALES. 


[book  I. 


withstanding  the  existence  of  a  right  to  revoke  it.  If  this  right 
is  never  exercised  according  to  the  terms  in  which  it  is  reserved, 
na  in  the  case  at  'ar,  until  after  the  death  of  tlie  donor,  it  can 
have  no  effect  on  tlio  validity  of  the  trusts  or  the  right  of  the 
trustee  to  hold  the  property.  Nor  are  we  able  to  see  any  force  in 
the  suggestion  that  the  trust  which  the  donor  created  in  some  of 
its  features  looked  to  a  disposition  of  the  property  which  was  the 
subject  of  the  gift  after  his  death.  We  know  of  no  principle  of  law 
which  renders  such  a  transfer  of  property,  inter  vivos,  invalid." 

And,  as  we  have  seen,  there  being  an  "  absolute  "  transfer  of 
the  subject  of  the  gift,  and  not  a  mere  inchoate  gift  remaining 
in  fieri,  the  property  in  the  gift  vested  in  the  donee  in  trust,  sub- 
ject to  modiiication  or  revocation  in  accordance  with  the  terms  of 
the  gift;  and  not  being  revoked  or  modified  during  the  donor's 
life,  took  effect  unconditionallv  at  the  death  of  the  donor. 

Contrary  to  the  dictum  in  J3asket  v.  ilasst'll,^  and,  following 
that,  to  the  holding  of  the  Virginia  Supreme  Court  in  Sterling  v. 
Wilkinson,''^  the  rule  is,  that  where  tliere  is  a  gift  m  pra'seitti, 
inter  vivos,  cither  of  real  or  personal  property;  and  where  the 
gift  is  of  personal  property  and  by  parol ;  a  delivery,  cx[)ress  or 
implied,  of  the  subject  of  the  gift  to  the  donee,  direct,  or  to  a 
third  party  in  trust  for  him ;  and  the  gift  is  to  become  absolute 
and  unconditional  in  futuro  only  on  the  performance  of  a  condi- 
tion, —  there  is  there  a  good  gift  inter  vivos,  though  "  the  contin- 
gency contemplated  is  the  donor's  death." 

This  is  unquestionably  the  law  ;  and  the  dietum  of  the  Supreme 
Court  of  the  United  States,  Matthews,  J.,  delivering  the  unani- 
mous opinion  of  the  court,  in  Basket  v.  Ilassell,^  expressly  to 
the  contrary  of  this,  is  entirely  unsound  and  absurd,  and  is  un- 
sustainable both  on  i)rinciple  and  by  authority.* 

Where,  in  Wyble  v.  McPhetcrs,^  reversing  the  judgment  of  the 
Circuit  Court,  a  donor,  some  eight  months  before  his  death,  deliv- 
ered to  the  defendant,  McPheters,  United  States  bonds  as  an  abi^o- 
lute  gift,  to  be  held  by  the  latter  until  the  donor's  death,  and  tlicn 
to  be  handed  over  to  the  beneficiaries  named ;  and,  after  the  doiitli, 
the  donee  in  trust  delivered  the  bonds  to  the  donor's  adminis- 
trator ;  it  was  held,  in  an  action  against  the  donee  in  trust,  aiul 
the  administrator,  that  the  gift  was  a  good  gift  inter  vivos.  The 
court  said  :  — 

"  There  was  a  sufficient  delivery  to  constitute  a  valid  gift  inter 
vivos.     The  delivery  to  McPheters  was  absolute,  unconditional. 


P     !  !  it 


»  107  U,  S.  nt  p.  616. 

2  83  Vii.  7'Jl. 

«  107  U.  S.  nt  p.  616, 

*  See  Joliiison  v.  Smith,  1  Ves.  Sen. 


314,  316,  per  Lord  Cbaiicellor  Hanlwicke; 
stated  stipra  p.  66,  et  acq, ;  and  other  cases 
cited  supra, 
6  52  Ind.  393. 


PART  ir.] 


GIFTS  DISTINGUISHED. 


75 


The  sul.ject  of  tlio  gift  wna  tn  u. 

'"".V^'  t'.e  plaintifTs,  upon  t 'e  lZZ'\'rf'  ^^^^'^^^^  by 
^^•Ji'oh  must  at  some  time  lia  f.  l  ,  ^  ^^'''  ^^^"O''?  ""  event 
--  ;o/i^'l-.d  upon  nTetnt  .''"tf'T  'J''-' '"tter  deli  x^;' 
;""'7^'!'»:  'i'''e  transaction  re  ol'o"  *','"'  *''^'''^'^^  ""'^^  ^aa 
'Oiie  inanes  between  MePJ.etc'.-  ■  ,,  f  '"''  "  "^"  ^^  ^.-ustee  and 
,t<^  ^^  ••"«t<-  ^r  the  use  of  the  ,t;"^  f  /  "';1''''-  ^  ^'"''^«0' 
-^ '^  J^;lnvry  to  the  party  Un.^^rl'  ^"  ''•-'  '^•^"^''ted  is  as  eileetual 

lu  coiisiiii.ic  a  valid  u-m  :  ,    "  .''~ 

»f "-  tim..  give,  oi.i:o^ae  uT:;:::,,""?-  ""■'* '« «  ooI'-v-t 

'■•"■y  fliat  it  l,„  delivered  to  tLen  ™',""™'^'"e.  It  i„  „ot  „oce/ 
«■•  «...l  m  all  case.,  8„cl,  a  di  1°^ '°  ?  ''■"»''■■'••  '"■■  """  pu.^ 
1I'"S  a  gift  is  so  far  tt"  '  ,     '''«  <l»"oi-  to  recall."  ' 

"  ;»  ,V  parol,  so  that    1 1  „o  1   '     '"•'™'"''  ^^  "'''i™"'.  wh  re 
.  I"-'!  V  the  donor,  wi  h  then.f' '. '"  ■*<■"'  "  '''"•  on'b'  b    re 
;?'n»Jo  suhjcet  to  a  eo  ii  ™,  „"';   °'  "'"  ''°™'=!  ""J.  »^.c.V  t' 
"""  it  vests  al,.,olutelv  h    M  '  ?   ''°  I^'-'o'-'naneo  of  the  eoL 
"-.  aitor  the  Rift,  w^n  h v    afoTT'  ",''""""  ""^  "»"-  i"  "^o" 
™,y  to  revoke  it  either  hofo-e  or  aft    ".?'  '^""^-n^ated  by  de 

to  -ho  do„or.»   "  °'  "'"  ™"J'""".  tl.0  property  in  the  gift  reverts 

;   '"1"^  """'e.  and  subse™  ,  K  ^';  i:  '"V""  "  "^■"''■^•■'  l'ool<  for 

'i'»t  I.C  intended  it  as  a  gift  we    .  '"'"  °'  ""^  '^''-''i'.  a>°d 

;  « »n,h.  ,81.  ,»„  °    '    '""''  "^^  """"P'^'  does  this  ves   the 


(/ 


'•■      (- 


I  '' 


:;i 


76 


COMMENTALIES  ON  SALES. 


[book  I. 


title  in  him,  and  devest  A.  of  all  title  and  possession  of  it,  if  he 
retains  the  deposit  book?  In  Blasdel  i'.  Locke,*  a  bill  inequity 
by  the  aihuinistrator  of  the  donor  against  the  bank  and  the  donee 
to  recover  a  deposit,  on  similar  facts,  though  less  favorable  to  the 
defendant,  it  was  held  '  that  the  deposit  created  a  trust  in  the 
bank  in  favor  of  !>.,  and  that,  npon  information  of  what  had 
been  done  being  conveyed  by  A.  to  B.,  and  accepted  by  B.,  ht  r 
title  to  the  money  became  absolute,  although  there  was  no  deliv- 
ery of  tlio  deposit  book,'  The  failure  to  deliver  the  deposit  book 
did  not  make  the  transaction  an  executory  instead  of  an  executed 
trust  and  perfected  gift. 

"  In  the  cose  at  bar  the  father  deposited  in  the  bank,  in  his 
daughter's  name,  b(*fore  her  marriage,  the  money  in  controversy. 
He  made  no  declaration  to  the  bank  other  than  to  direct  the  de- 
posit in  his  daughter's  name,  and  receive  the  deposit  book.  He 
intended,  however,  the  deposit  as  a  gift  to  her,  subject  to  his  tak- 
ing the  income  while  he  lived,  and  his  wife's  taking  it  for  her  life 
if  she  survived  him.  He  afterwards  showed  the  deposit-book  to 
his  daughter,  she  saw  the  entry,  and  he  informed  her  of  the  gift, 
and  she  accepted  it ;  he  retaining  the  book  during  his  life  to  ena- 
ble him  to  draw  the  income.  We  mulerstand  the  case  to  find  that 
the  father  intended,  at  the  time  of  making  the  deposit,  to  make  a 
presi'ut  gift  to  his  daughter  subject  to  ihc  taking  of  the  income, 
nnless  the  evidence  of  the  imperfectedly  executed  will  was  in  law 
conehisive.  [The  donor,  after  having  made  the  ^\it  in pntxttiti, 
in  1^74,  to  take  etl'ect  in  J'uturo,  the  "contingency  contemplated 
being  the  donor's  death,"  '^  made  an  abortive  will  in  1878,  and 
died  in  1884.]  The  will  was  not  conclusive  evidence,  even  if 
competent,  on  the  question,  and  the  case  stands  on  the  finding  of 
the  court  on  all  the  evidence,  including  the  will.  The  admini.s- 
tratrix  of  the  father  claims  that  the  transaction  was  in  the  natme 
of  a  testairientary  disposition  of  the  |)roperty  not  in  accordani'c 
with  the  statute  of  wills.  Bartlett  v.  Remington.'^  In  that  case 
the  deposit  was  made  in  the  name  of  the  jierson  making  it,  for 
Sarah  Storroe,  on  the  trust  that  the  depositor  was  to  hold  the 
title  and  tin;  power  to  dispose  of  the  property  so  long  as  slic 
lived,  and  then  wli.it  was  left  was  to  go  to  Sarah.  This  was  InM 
to  bo  an  executory  trust,  not  an  executed  one.  In  this  easi*  tlio 
money  was  deposited  in  the  name  of  a  third  party,  the  depositor 
inteniling  to  make  a  present  gift  of  it,  subject  to  the  taking  of 
the  income.     To  establish  a  valid  gift,  a  delivery  of  the  subject- 


616, 


»  .V2  \.  H.  2ns. 

•J  Biisket  V.   Has-sell,   107  U.  S.  at  p. 


»  59  N.  H.  266. 


PART  II.] 


GIFTS  DISTINGUISHED. 


77 


matter  to  the  donee,  or  some  person  for  liim,  so  as  to  devest  the 
titl(!  and  possession  of  the  donor,  nuist  bo  shown  ;  and  the  in- 
tjuiry  is  whether  a  valid  gift  in  prccscnti  can  bo  made  of  money, 
subject  to  the  right  of  tii'j  donor  to  take  the  income.  Such  a 
gift,  we  think,  may  be  nnide  by  a  j)roper  transfer  to  a  trustee ; 
aiul  the  (piostion  is  whotlior  the  facts  of  this  case  j>rosont  such  a 
transfer.  If  A.  deposits  money  in  U.'s  name,  without  )iis  knowl- 
cdiTc,  iutendin}.;  it  as  a  gift,  it  is  not  jierfectod,  as  tiie  assent  of 
liot'.i  pjirtics  is  necessary.  Pierce  v.  Burroughs.^  JJut  when  J],  is 
notifu'd  of  the  gift,  and  accepts  it.  Ins  legal  title  to  the  money  is 
perfected  ;  and  if  not  paid  on  demand,  iie  may  maintain  an  ac- 
tion at  law  to  recover  ii.  A.  could  have  no  action  for  the  money, 
oitlier  at  law  or  in  equity,  as  all  title  and  right  of  |)ossession  have 
jiasscd  from  him.  Again,  if  A.  deposits  money  in  K's  name,  to 
lii.>,  credit,  intending  it  r.s  a  present  gift,  but  to  remain  in  the 
bank  during  the  lives  of  A.  and  his  wife,  and  that  of  the  sur- 
vi\«rr,  subject  to  the  income  being  taken  by  them  [which  was  the 
exact  ca.se  of  Smith  v.  Savings  IJank],^  the  bank  takes  the  money 
on  tlie  trust  to  hold  it  for  the  term,  and  at  the  close  pay  the  prin- 
cijial  sum  to  J>. ;  and  when  J>.  is  notified  of  the  gift,  and  «<-  »ts 
it  with  it)<  hnrtlenH  ami  comJitions,  a  title  to  the  j»>Iiicipal  is  per- 
fected in  him,  subject  to  the  equitable  right  of  A.  and  wife  to 
take  the  income.  A.'s  title  and  jmssession,  and  all  right  to  a  title 
or  tile  jtnssession  of  the  principal,  are  as  entirely  devested  at  the 
nionient  of  the  acceptance  as  if  it  were  to  be  j)aid  l>y  the  bajik  to 
1).  on  dounv  d.  It  is  an  executed  perfect  gift  as  to  A.  lie  has 
delivered  the  money  to  the  bank.  His  dominion  and  jiower  to 
tcvokc  are  gone.  His  situation  is  not  dissimilar  to  what  t  ."ould 
have  boon  had  he  given  the  money  accompanied  by  an  uiM,iialilied 
drliviTv  to  ]>.,  vesting  the  title  and  poijsession  in  him,  on  l>.'s  un- 
dertal\ing  to  account  to  A.  for  the  income  he  might  receive  from 
it  (luring  the  term;  the  important  dilTerenee  being  that  the  pay- 
ment of  the  income  to  Smith  and  wife  is  secured  and  nuido 
tlirouL'li  a  trustee,  —  practically,  at  least,  the  sater  wa y."  ^ 
In  the  leading  English  case  of  Drury  v.  Smilii,''  Lord  llardwicko 


'  r.8\.  H.  302. 

-  Ill  N.  II.  2-lA;  0  All.  Uop.  7'.>2. 

'  Siv  I'mtlifr,  lUiisdfl  r.  I.oiki",  52 
N.  II.  -JliS  ;  S,.,tt  1'.  Hank,  140  .Mass.  ir.7, 
I'i.'i;  Havis  1).  Ncy,  \'>r>  Mass.  .Mmi;  i'.v:- 
lish  r.  Iiistiiutioii,'  12S  Mass.  I.IO;  Tnnic- 
I'.  I'.stiitii„,,k,  l-J'.t  Mass.  42:.;  lilc  v.  Piciris 
l:!4  Mas.s.  -jiiit;  Ka.stiimn  v.  Bank,  lati 
.Mass.  2oS;  Shcniiaii  v.  Itiiiik,  l'\S  Mass. 
M\:  Null  r.  Morse,  142  Miws.  1;  Curtis 
I'  Hiiik.  77  .Me.  l.'il;  Miirston  :•.  Marstoi', 
•>4  N.  11.  140;  Uobinaon  v.  Ring,  72  Mo. 


140;  Martin  v.  Kunk,  7.'i  N.  Y.  VM  ; 
VoiiM^' f.  Voiiii^.',  .So  N.  Y.  422;  Willis  i'. 
Siiiylli,  iU  N.  V.  2'."7;  Maliic  c.  I'.ailcy,  i'5 
N.  V.  20(i;  lllirtiili  I".  I  lank,  ;i2  Colin  .'StS; 
Mi;ior  r.  Itoi^vrs,  lo  Coiin.  .TrJ;  ('aiii|''«i 
Ai>iH'al,  ;{()  (.'onn.  SS;  .Millspau;;!'  r.  I'ut- 
naiu,  Iti.Mil-.  !'i.  ".Si!,  Cmidcr  •.  .\'"rrilt, 
32  Mil.  78'  liny  r.  .Sinoiions.  11  )J.  I.  2f.fi  ; 
Taylor  f.  Henry,  4S  M<1.  .^.■|0;  lliwanlf. 
Hank,  M  Vt.  284  ;  Many  v.  Aniaj;  mii,  01 
N.  Il.llU. 

«  1  P.  Wins,  at  p.  405. 


!  '^   ■    J 


nil  i 


w 


;'i 


! 


m 


78 


COMMENTARIES  ON  SALES. 


[book  I. 


says  :  "  This  is  a  gift  in  the  testator's  lifetime,  donatio  causd 
mortis,  and  the  possession  transmuted,  and  certainly,  notwith- 
standing tlie  will,  the  testator  had  a  power  to  give  away  any  i>art 
of  his  estate  in  his  lifetime ;  he  might  in  his  lifetime,  after  the 
making  of  his  will,  (/ive  mcay  ani/  part  of  his  estate  ahsolulely,  and 
by  the  same  reason  might,  notwithstanding  the  will,  <jive  atvuy 
anif  part  thereof  couilitionalli/,^^ 

We  have  now  shown  (1)  that  there  may  be  a  conditional  gift, 
in  opposition  to  the  cases  which  expressly  hold,  and  to  the  text- 
writers  who  are  construed  to  allirm,  that  there  cannot ;  (2)  that 
to  make  such  a  conditional  gift,  as  to  make  an  "  absolute  "  uncon- 
ditional gift,  it  nmst  not  be  an  executory,  an  inchoate,  a  mere 
promissory,  gift ;  but  that  there  must  be  an  actual  gift  in  prcesenti, 
though   it   may  only  vest   as   such,  unconditionally,  in  futuro; 
(3)  that  there  must  be  an  actual  or  constructive  delivery  of  tiic 
subject  of  the  gift  either  to  the  donee  direct,  or  to  a  third  person 
in  trust  for  him  ;  and  an  acceptance  of  the  gift  by  the  donee,  ex- 
press or  implied  ;  so  that  the  dominion  over  the  gift,  where  the 
express  condition  of  it  is  not  that  the  vendor  may  revoke  it,  is  in 
the  donee,  irrevocably  ;  and  (4),  contrary  to  the  express  holding 
in  the  badly-decided  case  of  Sterling  v.  Wilkinson,*  and  to  the  un- 
sound ilietum  which  led  to  it,  in  JJasket  v.  Ilassell,^  though  "  the 
contingency  contemplated   is  the  donor's  death,"   as  it  was  in 
Sterling  t'. Wilkinson  ;3  yet,  if  there  have  been,  as  there  was  in 
that  case,  a  gilt  in  pnvsenti  to  take  effect  in  futuro,  though  "  the 
contingency  contemplated  be  the  donor's  death,"  the  gift  is  irrcv- 
ocaI)le,  and,  on  the  contingency  arising,  by  the  death  taking  place, 
the  absolute  title  will  then  vest  in  the  donee  unconditionally  ;  un- 
less, indeed,  the  gift  be  made  only  then  still  further  to  take  cnVet, 
conditionally;  when  the  gift  will  then  only  vest  sul)ject  to  siicli 
condition.     That,  to  repeat,  the  dietum  and  holding  that,  wliero 
there  is  a  gift  on  condition,  and  the  contingency  contemplateij  is 
the  donor's  death,  the  gift,  as  a  gift  inter  vivos,  is  invalid,  arc  un- 
sound ;  and  that,  as  we  have  seen,  where  there  is  a  present  L'ift 
(and  not  a  mere  promise  to  give),  though  it  be  on  condition,  and 
though  the  contingency  contemplated  be  the  donor's  death,  the 
gift  is  a  good  gilt  inter  vieox;  the  point  being  whether  there  he  a 
present  gilt, as  in  the  lute  Knglish  case  of  Jn  re  Richards,  Sjuii- 
stone  I'.  Brock,*  though  to  take  elTcct  absolutely  only  on  the  per- 
formance of  the  condition,  in  which  ease  the  gift  is  a  good  Lnft 
inter  vivos;  or  a  mere  testamentary  disposition  to  have  no  eflcct 


»  83  Vh.  701. 

■^  107  V.  S.  at  p.  616. 


»  83  Va.  791. 

*  36  Ch.  Dir.  641. 


PAl 

at 
Bov 

niei 

soni 

T 

Smj)i 

e/l'ec 

that 

para 

latoi 


(I 


I 


le 
■ti 


on  th 

in  ifr 

ho  tJio 

donee, 

resents 

ion  ovc, 

Ijut  npo 

morfin  c 

donee  th 

foreinflr 


t 


deliveiT 
^'»e  fund 
itself  it  it 
good  as  a 
Of  the 
stated,  110 
-^s  fiir  ; 
0'"  iniph'es 
of  a  p(>rsoi 
^y  the  (|„n 
"x'aiitiiiio, 
"K'oiiio  re.si 
"•■'e  of  the  c 
•"xhaiistivel 

^^'e  hiive 
\  '^' ''.  s.  f 

,  fi'i''!  ill  2  J 
,,     '"  '''fisw. 

^••■IJ  iiivuli,!,  on  ( 


PART  II.J 


OlfTB  DrSTINGDrsHBD. 


79 


fit  all  in  prcesenti        • 

''"■■J1.10  ,.,,;,,•        '  <-'"ntin!r..rici-  arises     "7  •-""'  'I'"""-  in  tl„. 
;-.r:...,  •f»i"«i.n„., .„,.„., 

<-  I   I'll    in   >)   Ij      1      ._  .„  " 


^'"".  r  Taunt.  22^.  '  '^"''"  '•  ^ork. 


•f 


l.iH 


/J 


:f 


80 


COMMENTARIES  ON   SALES. 


[book  I. 


11^  i 


part  of  the  paragraph.  This,  as  the  point  is  made  to  rest  on  tlie 
distinction  between  a  gift  inter  vivos  and  a  donatio  mortis  caimi, 
which  distinction  is  as  applicable  to  the  gift  of  a  personal  chattel 
ac  "^o  a  chose  in  action,  is,  in  effect,  that  there  can  be  no  valid  inter 
vivos  gift,  unless  it  be  ^'■absolute  and  irrevocable.''^  We  have 
already  shown  that  if  there  be  a  gift  in  prcBsenti,  with  a  delivery 
and  acceptance,  it  is  a  good  gift  even  though  it  be  on  a  condition.' 
Hence,  as  far  as  the  term  "absolutely"  exi)ressly  or  impliedly 
states  that  a  gift  cannot  be  made  "  conditionally,"  the  proposition 
is  unsound. 

Equally  so,  we  think  it  is,  where  the  allegation  is  that  unless 
the  gift  be  made  "  irrevocably,"  it  cannot  be  a  g(wd  gift.  If  it  can 
be  made  conditionally,  it  is  clear  that  .  t  can  be  made  revocably ; 
for  the  very  condition  upon  which  it  is  made,  delivered,  accepted, 
may  then  be  a  condition  that  it  may  be  revoked. 

A  gift  is  so  far  a  contract,  clearly,  as,  among  other  essentials  of 
a  contract,  to  involve  the  consensus  ad  idem.  Hence,  to  constitute 
a  gift,  there  must  be  the  meeting  of  minds  of  the  donor  and  donee 
as  to  the  subject  of  the  gift ;  and  equally  so,  clearly,  as  to  the 
terms  of  tbo  gift,  if  any  are  im})osed.  The  essential  distinction 
between  a  gift  as  a  contract  and  any  other  contract  is,  that  b;  iiig 
voluntary,  and  having  no  consideration  to  support  it,  it  genoiaiiy 
(as  there  is  the  locns  poenitent ice  until  it  is  executed)  cannot  be 
enforced  so  long  as  it  remains  in  fieri ;  —  a  mere  nmlnm  pucfinn. 
But  once  executed,  the  distinction  between  a  gift  and  other  con- 
tracts disappears.  Hence,  it  is  clear,  that  vrhen  a  gift  is  made, 
delivered,  and  accepted,  and  the  minds  of  the  parties  have  met  on 
the  condition  that,  on  certain  terms  or  conditions,  it  may  be  re- 
voked, the  gitt  is  subject  to  such  conditions,  and  may  as  well  he 
subject  to  revocation  as  to  any  other  condition ;  precisely,  fur 
instance,  as  the  contract  of  bailment  may  bo. 

Tiic  gift  in  Stone  v.  Hackett,^  fully  stated  by  us  supra,  besides 
being  on  condition  that  the  donor  was  to  have  the  income  of  llic 
subject  of  the  gift  —  in  this  case,  too,  chof,es  in  action  —  duriii'.' 
his  life,  was  expressly  made  subject  to  tlie  donor's  rights  to  modify 
the  uses  or  to  revoke  the  gift ;  and  he  having  died,  without  liaviiiir 
modilied  the  u'-.os  or  revoked  vhc  gift,  the  beneliciaries  were  IkM 
entitled  to  tlio  property  as  a  completely  executed  "  absolute  "  Lnti 
inter  ri'-os.  The  court  correctly  held,  as  we  think  is  true  Iteyoml 
a  pci adventure,  that  a  power  to  revoke  does  not  affect  its  validity  in 
default  of  the  execution  of  the  power.  So,  clearly,  there  may  be  a 
good  gift,  though  an  express  i)ower  to  revoke  it  is  reserved.  A  irift 
mortis  causd  is  a  gift  inter  vivos.^    H  then  there  can  bo  a  gift 


>  See  tlie  iiiimeroug  cases  that  wo  bavo 
dtcd  to  this  effect  supra. 


»  12  Gray  (78  Mass. ),  2-27. 

■  Gass  t>.  Simpson,  4  Culdw,  (Teun.)  2!)4. 


PART   II.] 


GIFTS   DISTINGUISHED. 


81 


inter  vivos  when  it  is  technically  a  gift  mortis  causa,  carrying  with 
it  the  implied  condition  of  the  right  of  revocation,  there  wonld 
soein  to  be  on  that  ground  also,  in  jirinciple,  no  reason  why  any 
(ithcr  gift  inter  vivos  may  not  be  made  subject  to  the  express  con- 
dition of  revocation. 

And  it  is  perfectly  clear  that  it  can  be.  Such  gifts,  both  of  real 
and  personal  property,  are  made  every  day.  Such  a  provision  — 
a  power  of  revocation  —  is  often  contained  in  testamentary  gifts  ; 
in  trust-deeds;  in  marriage  settlements,  and  in  other  instruments 
ot  ,i,nft. 

See  Gaither  v.  Williams,!  where  there  was  a  gift  to  become  oper- 
ative in  the  bcneliciai  •< .»  oidy  after  the  death  of  the  grantors,  wlio 
reserved  to  themselves  "  full  i)ower  of  revocation,"  ''  even  to  the 
entire  I'cvocation "  of  the  gifts  which  they  had  made  under  the 
instrument;  and  which  gifts,  had  the  grantors  not  revoked  them, 
wliieh  they  did,  would  have  become  "  absolutely"  operative  when 
tlio  contingency  arose.  Subsequently,  however,  they  made  another 
cnnvcyanee  of  the  property,  and  the  court  held  that,  possessing 
tlie  iiower  to  revoke  the  siifts,  the  second  convevance  worked  such 
a  revocation ;  although,  on  its  face,  it  did  not  purport  to  be  an 
exorcise  of  the  power  of  revocation. 

So  in  Aylsworth  v.  "NVhitcoinb.-  where  an  instrument  was  exe- 
eiited  making  a  voluntary  disposition  (a  gift )  of  the  grantor's  real 
and  persoual  j)roperty,  which  contained  no  express  power  of  i-evo- 
cation;  but  it  was  executed  by  the  grantor  under  the  impression 
that  he  couM  revoke  it,  the  other  party  to  the  iustrmueut  admit- 
tinir  that  it  was  executed  on  the  belii-f  and  undi'i'standing  ity  both 
parties  that  it  was  revocable;  the  court  decreed,  in  elVeel,  on  the 
L'rnnnd  of  mistake,  that  tln^  gi-antor  had  the  power  to  revoke  the 
ijeod. 

And  in  K(Minell  /'.  Altbott,^  when*  a  legacy  was  given  by  a  woman 
to  a  man  in  the  chai-aeter  of  her  husband,  wlnnu  she  supp(»sed  was 
and  described  him  as  sueh.  hut  wlio  at  the  time  of  tin'  niarriauv 
(eremony  with  her  had  a  wife  li\  inur ;  tiie  court,  after  the  donor's 
'leatli,  on  the  gnjund  that  where  a  legacy  is  given  to  a  person  under 
a  |iartieidar  character  which  be  lind  falsely  assumed,  and  which 
alone  could  be  supposed  the  motive  of  tlie  bounty,  the  law  would 
not  ]>erniit  hiiu  to  avail  himself  of  it.  annulled  the  legacy. 

l>nt  as  a  ride,  where  a  power  of  revocation  is  not  expressly  re- 
s'Mved  and  the  gift  has  been  made  absolutely  and  unconditionally, 
:niil  so  vests  in  tlie  donee,  it  then  becomes  irrevocable;  where  it 


1     !l 


m\^} 


\ 


W  ■If- 


'  .'■.7  Mil.  •'.2.1. 
-    l>  U.   1.  US*!*. 


vol.    I . 


*  i  Vcs.  802. 


I'  I 


82 


COMMENTARIES  ON   SALES. 


[book  I. 


has  been  made  without  fraud  or  mistake,  and  where  the  donors  do 
not  occupy  a  fiduciary  relation  towards  each  other.* 

And,  generally,  the  very  essence  of  a  gift  infer  vivos  is,  where  it 
is  not  expressly  made  subject  to  the  exercise  of  the  right  of  revo- 
cation, and  wliether  it  is  made  either  unconditionally,  or  if  niaiif 
on  a  condition,  the  condition  has  been  performed,  that  it  th*  ii 
becomes  absolute  and  iire vocable.'^ 

Under  the  correct  decision  in  Aylsworth  v.  Whitcomb,^  st.ittd 
ante,  as  well  as  on  the  principle  that  a  gift  possesses  generally  tin' 
qualities  of  un  agreement  or  contract,  it  is  clear  that  where  tlioro 
is  no  connensus  ad  idem,  —  no  agreement  between  the  donor  iiiid 
donee,  say  as  to  the  subject  of  the  gift,  or  any  mistake  between 
them  which  goes  to  the  essence  of  the  gift,  —  the  gift  can  be  revoked 
for  mistake,  without  any  express  reservation  of  a  power  of  revoca- 
tion. And  not  only  may  the  grantor  or  donor  of  a  gifc  reserve,  in 
the  instrument  making  the  gift,  a  jiower  of  revocation,  but  j>o\v- 
ers  of  revocation  are  by  deeds  of  gift  frequeufly  vested  in  third 
parties.* 

So,  when  a  gift  is  made  on  condition,  it  is  thereby  necessarily 
imjdied  that  the  gift,  whether  it  be  of  real  or  personal  property, 
may  be  defeated  fo»'  non-performance  of  the  condition ;  or,  in  other 
words,  revoked.  Thus  it  \ms  held  in  Eskridge  v.  Farrar/'  llmt 
where  the  condition  on  whicli  a  gift  had  been  made  had  not  Ikm  ii 
complied  with,  the  gift  could  be  revoked,  even  though  the  property 
were  in  the  hands  of  a  third  party.** 

The  same  doctrine  too,  wfth  reference  to  gifts  to  a  charity,  w;is 
sustained  in  the  United  States  Supreme  Court,  in  Printing  lloiisf 
V.  IJoard  of  Trustees,'  wheie  ^  they  say  :  — 

"  Where  certain  contributions  to  a  charity  arc  proposed  to  !••; 
made  upon  certain  express  conditions,  the  rights  of  the  donors 


>  Fellow's  Appeal,  93  Pii.  470;  Storrs 
V.  Barber,  6  Johns.  Ch.  16(5;  t'tiiipiri  i\ 
Laytin,  18  Wend.  412;  Hunt  «.  Knisiiiiin- 
ler,  8  Wht'at.  174;  Slifer  v.  H.-utes.  «  Scr. 
&  K.  166  ;  Spra^'ue  v.  Wootls,  4  W.  «:  S. 
192;  Dtnnison  »'.  Ga-hrinj,',  7  IIuit,  17;"); 
K.M-(i  V.  Uol)ins()n,  6  VV.  &  S.  a2'.»;  Dclii- 
I'li'tci'.s  Kst.,  1  VVhart.  ati2;  Uft'sc  v. 
Kiilh,  13  S.  &  R.  434  ;  (:r.rnlu'l.rs  Kst., 
2  Iliirris,  489;  Stone  f.  llaikett,  12  Cray, 
:»27;  Kllison  I'.  Kllison,  6  V.s  6ri6;  Kcke- 
wich  V.  M;innin;T,  i  |),.  (!,  M.  ^  (!.  176  ; 
Kgcrton  c.  Carr,  94  N.  ("ar.  648. 

^  See  Knott's  Ailnir.  v.  Ho>»an,  4  Mctr. 
(Ky. )  99:  Minor  t^  UojjcrH,  4(t  Conn.  T>\'2; 
Si;,'gors  v.  Evan.s,  5  Kl.  &  !'•.  366;  Slerlinf? 
V  Wilkinson,  83  Va.  791.  Tlie  qncry 
was  raised  in  Fn  rr  Ricluii'ds,  .Slicnstone 
I..  Hroik,  36  Ch.  Div.  S41,  ;;44;  and  see 
Blasdel  v.  Locke,   52  N.  H.  238,  243,  as 


toil  revocation  of  a  k'I"*  inter  viros,  on  ((Hi- 
dition,  be  re  the  condition  had  tii'cii  |"i- 
tbrnji'd;  but  we  tiiink  tlie  law  is  iIcmi  lli;it 
where  a  f,'it't  is  duly  nii'.de,  sulijrct  t"  .i 
ronditii.n,  and  then;  is  no  reserviitinn  "I  .i 
power  to  revoke,  tiic  jiower  of  the  f,'r;iiit"i 
to  revoke  is  fjoiie,  unlesis  ihore  be  u  bnMrh 
of  the  condition. 
8  12  K.  1.  298. 

*  See  Smith  V.  Adkiiis,  L.  K.   1 1  K': 
402;  Huckell  i-.  IJlenkhorn,  5  llan-.  lil 

*  30  i,a.  Ann.  718. 

«  IJerry  r.  iJerrv,  31  Town,  41.';.  Mi-- 
ston  V.  Marston.  .1  Atl.  Rep.  713;  64  N.  H 
146;  Dnelaud  i'.  Ronsseiiu,  2  I*i.  Ai"- 
168,  and  Hart's  Kx'ors  v.  Boni,  6  la  K 
(().  s  )  97,  are  to  the  same  ellect. 

'  104  n.  S.  711. 

»  At  p.  717. 


TART   11.] 


GIFTS   DISTINGUISHED. 


88 


stand  upon  contract,  and  if  the  conditions  arc  not  performed,  their 
(ililijrntion  to  contribute  is  discharged  ;"  that  is,  in  elTect,  that  the 
•rift  can  ho  revoked. 

And  airain,  where  fiduciary  ndations  exist  between  the  i)arties 
fo  !i  irift,  it  may  be  revolved  on  the  groinid  of  its  havini;  been  made 
under  unduo  influence.'  IJut  where  the  jrift  has  been  made  be- 
tween jiarlies  bearint?  a  fiduciary  relation,  so  that  the  frift  is  revo- 
oalile  at  the  option  of  the  donor,  and,  after  the  liduciary  relation 
has  terminated,  the  donor  elects  not  to  revoke  the  gift,  as  it  is 
voidable  only  ami  not  void,  it  then  becomes  nbsolute,  and  cannot 
1)0  revukeil  by  the  donor's  executors  after  his  death.^ 

The  incorrect  test  of  a  gift  infer  vivos,  given  in  Jiaskct  v.  Ilas- 
sell,''  that  it  can  only  exist  where  the  donor  has  been  devested  of 
control  and  dominion  over  it  "  absolutely  and  irrevocably,"  was 
praetieally,  and  we  think  wrongly  acted  on,  in  effect,  by  the  New 
Yolk  (,'uurt  of  Appeals  in  the  very  recent  ease  (November,  18S*.t) 
of  Williams  r.  (Juile,'*  although  the  case  itself  was  evidently  cor- 
rectly decided  in  favor  of  the  donee.  A  gift  by  deed  was  made  by 
tln'  plaint itf's  intesta'e  of  a  policy  of  life  insurance,  with  its  accu- 
mulations, some  six  or  seven  weeks  prior  to  his  death.  'I'he  deed 
purported  to  have  been  made  for  a  valuable  consideration,  and 
contained  a  clause  to  the  efTect  that  the  assignment  was  subject 
to  the  express  condition  and  reservation  that  the  donor  had  power 
to  revoke  it  at  any  time  during  Ins  life.  The  deeil  was  delivered 
to  a  third  party  for  the  donee,  wlio,  snltse(|nent  to  the  donor's 
death,  collected  the  amount,  in  an  action  by  the  donor's  admin- 
istrator against  the  donee,  the  Ni'W  York  Supreme  Court  held  ^ 
that  the  gift  was  good  iutvr  vivos,  and  that  the  fact  that  the 
Lnantor  reserved  the  right  of  revocation  showed  that  he  intended 
tlie  deed  to  Operate  then,  sidijeet  to  the  condition  or  reservation  of 
tlie  right  to  revoke;  otherwise  that  thiit  condition  would  have 
licen  insensible  ;  as,  if  the  gift  were  iu»t  intended  to  take  elTect  in 
}o-(iK>'iifi,  the  reservation  of  a  p(»wer  to  revoke  wouhl  have  been 
unnecessary,  as  there  would  have  been  nothinii-  to  revoke.  We 
think  they  were  entirely  right.  It  was  also  claimed  that  the  gift 
was  good  mortix  causd,  but  the  court  found  it  unnecessary  to  con- 
sider that  point. 

On  appeal,  the  New  Y''ork  Court  of  Appeals  held  that  the 
LMft  was  a  good  donatio  mortis  vansd,  but  not  a  good  gift  inter 

'  HiHwii  r.   Ki'iincdy,  4  Dc  O.  J,  &  S.  T>9>1.     And   se<'   «!ic;;nry  ?•.    Gregory,   O. 

217;  llaiiiii'iiin  r.   Ii,isi"li'y,   14  Vcs.  '273;  (.'(lopiT,    'JOl;    \Vii;;|it  v.  Viin<lci|iliiiik,  8 

l^|^'•  V.   Mviiott,   7  ViTj?.   'M\;   Itcnicii  I'.  Di- G.  M.  &  U.  133;  //i  re  lloliius  Katiitf, 

>lil.:iii.',    1    Hoir.    Cti.    4-21;    Fiunaiii   r.  3  Gill.  337. 
l)io„ks,   0   Pick.    218;    Starr  v.  Vaiuior-  «  104  V.  i>>.  nt  )-.  614. 

lioyd.n.  It.Ioliiis.  '253.  *  117  N.  Y,  343. 

•  Mitchdl  V.    lliiiifrny,  8  Q.  B.  Div.  »  Williams  v.  Guiio,  4C  Hun,  645. 


\  . ' 


!    .'■« 


M 


■\^n 


<  t  i 


f 


84 


COMMENTARIES  ON  SALES. 


fBOOK  I. 


vivos.  Wc  think  their  reasons  for  so  liolding  are  not  satisfactory. 
They  admitted  that  the  facts  were  undisputed  and  not  conflictiii!;, 
and  that  they  evidenced  an  unmistakable  and  clear  intent  that  tlie 
donee  should  have  the  benefit  of  the  policy  unless  the  gift  was  re- 
voked during  the  donor's  life.  The  delivery  of  the  deed  havin,' 
been  eiiually  as  effectual  to  jmss  tlu;  property  infer  vii<i>.s,  as  tnortin 
rauKtt,  we  think  the  better  decision  is  that  of  the  Supreme  Court; 
that  the  gift  of  the  policy  was  an  existing  gift  in  /ira-sfnli,  passing' 
the  i)roperty  then  therein,  subject  only  to  its  being  devested  on  the 
express  condition  named  in  the  deed,  viz.,  its  revocation  durin;' 
the  donor's  life.  And  we  think,  \mder  the  facts,  that  had  the 
donor,  after  the  due  execution  and  delivery  of  the  deed,  lived  a 
dozen  years,  so  that  it  could  not  reasoual)ly  have  been  contemlcj 
that  the  gift  was  valid  morfin  (-(Vis<t,  and  had  not  revoked  the  (K-id, 
the  donee  would  then  have  been  entitled  to  the  proceeds  of  tlie 
policy  inider  th(^  couditional  gift  of  a  dozen  years  before. 

The  Court  of  Ajjpeals  seemed  to  have  labored  und(M'  the  mist.iko 
as  to  the  vesting  of  conditional  gifts  infer  vivo»  so  largtdy  prevail- 
ing in  this  country. ' 

In  Woi'th  V.  Case ,2  where  the  donor's  promissory  note  for 
'flO.OOO  was  given  to  the  plaintiff  by  her  brother,  in  a  sealed  en- 
velope, on  which  the  donee's  name  was  endorsed,  and  on  wliiih 
he  had  written  and  signed,  "This  is  not  to  be  unsealed  while  I 
live,  and  returned  to  nie  auy  time  I  wi.sh  it."  Over  three  years 
after  the  gift  he  made  his  will,  and  died  in  the  following  lUDiitli, 
not  having  revoked  the  conditional  gift.  In  an  action  l»y  tlie 
donee  for  the  amount  of  the  note,  the  New  York  Coiu't  of  Appeal.^ 
in  holding  that  the  gift  was  a  good  gift  infer  vien^,  bi'iiigs  the 
case  of  Williams  v.  Guile^  directly  within  its  purview,  thus:  — 

"A  deed  executed  and  delivered  Ijy  a  grantor,  which  is  to  take 
effect  so  as  to  jiass  the  title  at  his  death,  is  not  in  any  sense  a 
testamentary  disposition  of  the  property  described  in  it ;  iiur  is 
a  note,  executed  and  delivered,  and  accepted,  in  the  lifetiiue  of 
the  maker,  but  made  jiayable  at,  or  after  his  death,  such  ii  ilispo- 
sition  of  it;  but,  in  both  cases,  the  instrument  is  absolute  ami 
passes  the  right  to  the  land,  in  the  one  case,  and  to  the  ni'iiey 
in  the  other,  to  vest  in  jiossession  or  action  at  the  death  of  the 
grantor  or  maker.  And  if  the;  note  in  question  was  delivereil 
and  accepted,  the  transaction  is  no  more  testamentary  than  in 
the  cases  of  the  deed  and  note  vderred  to;  and  the  only  tlilTor- 
ence  is,  that  in  those  the  delivery  passed  the  right  without  power 


1  But  sen  Worth  i:  Case,  42  N.  Y.  362; 
Ru}5<{li's  V.  Liiwsoii,  13  .lull lis.  2S5 ; 
■\Vhi'i'hvri<'ht  v.  Whtehvriglit,  2  Mass.  447; 
Hatch  V.  Hatch,  9  Muss.  307. 


2  42  N.  Y.  362. 

»  46  Hun.  645;  117  N.  Y.  343. 


PART  II.J 


CIPTS  DISTJNGWSHED. 


»l';";l.l  r„„mi„  i„  ,„„,„  ,""""  »'■'■'•■  i'o.-l„rmc.,l,  ti,o  title  tu  hV  n  „' 
llio  intim.itioiii.i  l{.„i,„,      „ 

:^'.;^n"t•:r"-rf"'"-•-- 
«'rc  to  a  condition,  ori   ,;,,."  "'  '    '";'>•  I-"  c.v, „...,»,,.  „  ;  ^^^ 

iliiviiv,    t„  |(       '    ■'"''J"-       Jlie    Clerk  u-K        f  '   '    '•"   "ot  sec   linu   >l         :"''t"i 


'''■'''■'■"•'1  to  Ii  ui.r       ^'"''  '•''"■'•'<  w.is 

,viv..,l  ,|„.     ,;;''-  P'-'-scnt,,,  it,  an.l  r.- 

"";'/,';^ '•""■svf,  sui.l:-!  ""*  "  ''""'"'o 

7'"''     tli«    ^^■hV  T  '    '""'"'•'  ^  '""-^t 
*''';""■'•  tl.o    ,    „  ,p       '"sucfon.    to    see 

■  ■•    th  vo';''^,""'^-<^otoA 

"•  -"'O     li|||ll>t         4.1..      .. 


""/•■^'""torsln-,,  /mmTi  :.  ,  '^''""",""-'ya.s 
I"7"'-"t  to  I!.  1  i  '•  y  """;•  H.an  th. 
for  A."  '■'""-"  "■"■^t-«  or4.-:.oo  ui  ,t 

Mamott,  2  iii,,.'.   N    r  "i,.^  ^  ,',^"'""  '■•■ 
V-    Balhirni.     2  Ar    ;.  vi>  t^„"^/    i  lioiinell 


in 


•  1} 


iwmi 


86 


COMMENTARIES  ON  SALES. 


[book  I. 


I'l  ^-i 


: 


;  i 


M' 


f^ift  partakes  so  much  of  tho  character  of  a  legacy  or  nuncupa- 
tive will,  that  it  is  implied,  even  tliou<rh  it  be  not  expressed,  tliut 
the  donor  reserves  the  right  of  revocation  during  his  life  ;  while 
generally,  in  a  gilt  inter  rivon,  unless  the  right  of  revocation  lie 
expressly  reserved,  it  can  only,  as  a  rule,  be  exercised  on  the  I'ail- 
ure  of  the  condition,  where  the  gilt  has  boon  made  conditionally; 
and  not  at  all,  when  the  gilt  has  been  made  "  absolutely  iiikI 
irrevocal)ly  ;"  and  (2),  a  gift  infct'  firox,  generally,  when  ('(jii- 
summated  by  delivery,  where  no  condition  is  expressly  made,  as 
a  ride  becomes  absolute  and  irrevocaiile  (subject  to  the  exc(.'|)- 
tions  above  named,  as  to  fraud,  mistake,  undue  inlluenco,  etc.) ; 
while  with  a  gift  mortis  c(iuii<f,  as  it  is  a  gift  made  in  conlenipla- 
tion  of  death,  the  condition  is  always  implied,  even  though  not 
expressed,  that  if  the  donor  do  not  die  from  the  contemplated 
peril,  the  implied  contingency  not  having  arisen,  the  gift  fails.' 

In  the  great  amount  of  litigation  there  has  arisen  in  connertiou 
with  gifts  mortis  cititm  the  questions  mainly  involved  are,  (1),  as 
to  what  is  the  3ul)ject  of  such  a  gift,  and  (2),  what  is  a  sullicicut 
delivery  thereof. 

As  to  what  arc  tho  subjects  of  such  a  gift,  although  there  has 
been  much  lluctuation  in  the  law,  and  in  some  of  the  early  deci- 
sions the  rule  was  more  stringent  than  now,  it  may  now  bo  said 
that  all  personal  property  and  choses  in  action  arc  such  siil)- 
jects,  exce}»t  where  the  chose  in  action  amounts  to  an  ineliuato 
gift,  as  tho  donor's  check,  dr-ift,  or  promissory  note,  unless  per- 
fected by  payment.^ 


»  See  Wiiid  v.  Turner,  2  Ves.  Son.  433; 
Bunn  u.  Markliani,  230,  i:/  .svy.,  ;>c/- t!ilil).s, 
C.  J.:  Tato  V.  lliU.ert,  2  Ves.  .Ir.  Ill; 
Blount  r.  IJunow,  1  Ves.  Jr.  54tJ.  TIm' 
best  expositions  in  this  country  of  the 
law  {;;('M(;nilly,  as  to  thmationes  mortia 
caufiil,  will  be  fouml  in  Nicholas  f.  Aiianis, 
2  Whart.  17,  22,  H  s,'q.,  bv  (iibson,  C.  J.  ; 
in  Mrnhant  v.  Merchant, 2  BnuU".  (N.  Y.) 
432,  liv  Hradlord,  Surroj;ate  ;  and  in  (Jass 
V.  Simpson.  4  Coldw.  (Tenn.)  2S8,  292, 
ct  scq.,  per  Hawkins,  ,1.  ;  criticised  by  tho 
Supreme  (.'ourt  of  the  United  States  in 
Basket  V.  Hassell,  107  U.  S.  at  j).  608,  et 
seq.  See  further,  Thompson  v.  Thompson, 
12  Tex.  at  p.  331;  (Jourley  v.  Linsenbigler, 
.")!  I'iu  St.  345  ;  Miuhener  v.  Dale,  22  Pa. 
St.  5it. 

'^  For  eases  as  to  the  subjent  of  tho 
gift  morHs  cin(.«i?,  see  Wanl  t>.  Turner,  2 
Ves.  Sen.  431;  Walter  y.  Uodj;e,  2  Swanst. 
»2;  Miller  v.  Miller,  3  P.  Wins.  3.56  ; 
Lawson  v.  Lawson,  1  P.  Wms.  411  ;  Jones 
V.  Selby,  Piee.  in  Ch.  300;  Bailey  r.  Snel- 
Urove,  3  Atk.  214;  Richard  v.  Syms,  2 
Atk.  319;  Hill  v.  Chapman,  2  lire.  C. 
C.  612;   Tate  i-.  Hilbert,  2  Ves.  Jr.  Ill; 


Veal  V.  Veal,  27  Beav.  303;  DufficM  r. 
Elwes,  1  Sim.  Jt  St.  24.');  1  Bli.  n.  s.  M; 
Mitchell  V.  Smith,  4  De  ti.  J.  &  S.  i'li ; 
Moore  v.  Denton,  4  De  (1.  &  Sni.  Tiir; 
Bouts  f.  Ellis,  17  IJeav.  121;  (lanliiLi' i'. 
Pmhloek,  3  Madd.  184  ;  Hurst  v.  li.a.li, 
5  Madd.  3.')1;  Barton  i'.  (iarner,  3  II.  &  N. 
287;  IJeak  v.  15eak,  L.  U.  13  Iv|.  JS'.t; 
Witt  V.  Amis.  1  P.  &  .S.  10!>;  Amis  c.  Witt, 
33  Beav.  tUit;  Hulliday  v,  Atkinson,  5 
B.  &  C.  501;  Parish  r.  Stone,  U  I'iik. 
204;  Hill  1-.  Ikickniinster,  5  Pick.  3W: 
Mills  V.  Wvnian,  3  Pick.  208:  llowcrs  v. 
Hurd,  10  Mass.  427;  Kilf  u.  W.avn,  'A 
N.  Car.  274;  Fairly  v.  McLean,  11  inl 
158;  IJrickhouse  v.  Brickhouse,  11  in'l. 
404;  Gourley  i*.  Fjinsenbif^ler,  .11  I'^i.  otJ; 
Sessions  i;.  Moselv,  4  t'usli.  87;  llmi-*''. 
Clark,  3  Comst.  "(N.  Y.)  114;  Wii-iitr. 
.McMillan,  1  I'ow.  598  ;  French  r.  liny- 
niond,  39  Vt.  623;  Smith  !'.  Kittriils,"',  21 
Vt.  238;  Coutant  v.  Sdiuvler.  1  I'.iiu'f. 
316;  Grover  v.  Orovcr.  24  Pick.  'J'n  ; 
Holley  r.  Adams.  16  Vt.  206;  Crii,'  i'. 
Craiff,  3  Barb.  76;  Harris  v.  Claik,  '2 
Barb.  94;  Cobb  i-.  Sawyer,  6  N.  11.  ^^''>- 
Wells  V.  Tucker,  3  Binn.  366;  Bornciuau 


PART  II.] 


GIFTS  DISTINGUISHED. 


87 


The  rule  as  to  the  delivery  is,  that  it  may  be  made  to  the  donoo 
(iiiect,  Of  to  any  third  party  for  him  ;  ^  althou^'h,  in  several  badly 
iliciticd  cases,  it  has  been  held  that  a  delivery  to  a  third  party, 
with  the  express  condition  that  the  subject  of  the  <ril't  is  to  bo 
(ri\(  11  to  the  donee,  in  event  of  the  donur's  death,  is  not  a  sufli- 
ciiiit  (k'livi-ry.  The  rule,  however,  is  otherwise.  The  bailee, 
as  in  Tate  '•.  Leitheii  ,2  will,  in  such  case,  be  iiold  to  be  a  trustee 
lor  the  (1(11,  ■e.'*  And  tlu'  p()stp(jninj^  of  the  pit  to  take  cfTect 
iricvooaltly  until  the  donor's  death,  is  exactly  wluit  is  implied  by 
a  (loiutti'i  mortis  causa. 

There  must  be  an  absolute  delivery  of  the  subject  of  the  gift 
duriiiL^  the  donor's  life,  but  whether  such  a  dclivci .  by  the  donor 
Ite  to  the  donee  direct,  or  to  a  third  party  for  him,  is  (juite  imma- 
terial, if  the  donee  elect  to  accept  the  gift.  Of  course,  if  the 
(ioiK'C  simply  directs  a  third  party  to  deliver  the  subject  of  the 
gift  at  the  donor's  death,  and  do  not  deli\er  the  gilt  to  the  third 
jjurty  for  the  doneo,  one  of  the  essentials  of  the  gift,  a  delivery, 
is  wanting,  and  the  gift  remains  inchoate,  amounting  to  no  more 
than  a  mere  promise  to  give.  But  when  the  delivery  is  actually 
made  by  the  donee  to  a  third  party  lor  the  donee,  unless  the 
dunce  siil)se(iuently  repudiate  it,  as  it  is  generally  lor  his  benefit, 
his  acceptance  of  it  will  be  presumed.  It  is  not  necessary  that 
he  shuuld  have  constituted  the  third  party  his  agent  to  ■  "ceive  the 
gift;  such  third  party  is,  by  the  donor,  constituted  a  trustee  for 
the  donee.  The  question  in  connection  with  a  gift  mortis  causd  is 
much  siin[)ler  than  with  a  gift  inter  vivos,  as  to  the  right  of  revo- 
cation before  or  after  acceptance;  because  in  the  former  the  right 
of  revoking  is  always  implied,  but  not  so  in  a  gift  inter  vivos.^ 


r.  Siilliiiijcr,  15  Me.  429;  Bradlov  v. 
Hunt.  ;')  Hill  &  .1.  208;  Appeal  of  Wiilsh, 
122  I'ii.  177;  SaviiiLfs  Bank  v.  C'iii>]>.s,  91 
I'ii.  iU.'i;  Striliii;;  v.  Wilkinson,  b3  Va. 
in:  Apjual  of  Kline,  117  Pa.  13i>;  Weitz 
V.  Miiritt,  74  Iowa,  083;  Seott  i-.  Laiiinaii, 
Ml  I'a.  5'J3;  Daniel  v.  Smith,  75  Cal. 
518. 

'  See  Tate  i-.  LeithcaJ,  Kay,  658. 

"-  Il>,d. 

»  Sic  Love  r.  Franeis,  63  Mich.  181, 190, 
statcil  ((,!/.',  p.  6(5;  ami  see  Kllis  c.  Seeor,  31 
Mi  ill.  LS.'i ;  (ii'een  v.  I.ang<lon,  28  Mich. 
221;  Wvlile  V.  Mi'l'heeter.s,  52  Iml.  393. 

■•  Till'  fiilldwiiifiare  some  of  the  numcr- 
(lus  eases  (in  till'  sulijeet  of  delivery,  some 
few  of  whii'ii  will  be  found  not  to  be  in 
liiiriiKiny  with  what  we  think  are  the 
sDiiml  ]iiini'iples  fjoverninj;  the  matter: 
Krurvr.  Smith,  1  1'.  Wms.  404;  Lawsou 
f.  Lawsiin.  1  l*.  Wms.  441;  Walter  v. 
H'>'i,i;i'.  2  .Swanst.  92;  Hedges ».  Hedj;es, 
Prec.  Ch.  269;  Jones  v.  Selby,  Prec.  Ch. 


300;  Ilas.sel  i\  Tyrett,  Ami).  318;  Blount 
V.  Hunow,  4  Bio'.  ('.  ('.  72;  Tate  v.  llil- 
bert,  4  Bm.  ('.  C.  286;  Miller  V.  Miller, 
3  1'.  Wins.  3.''.6;  IVwell  r.  llelliear,  26 
Beav.  261;  l-:.r /mrtr  I've,  IS  Ve.s.  140; 
li'jtitt.si".  Kllis,  17  lieav.  121;  Faiquharsou 
V.  Cave,  2  Coll.  \W>>\ ;  Ward  r.  Turner,  2 
Ves.  Sen.  4^1  ;  riiinn  v.  Markham,  7 
Taunt.  221;  2  Marsh.  M-1:  Hill  v.  t'hap- 
inaii,  2  Bid.  C.  V.  (ii:!;  Hawkins  v.  iilewitt, 
2  Ksp.  663  ;  Kdwards  v.  .tones,  7  Sim.  325; 
Gardner  v.  i'arker,  3  .Maiid.  181;  Moore  i>. 
D'.'nton,  4  De  tl.  &  Sm.  517;  Pi'iiniii^'ton 
I'.  (Jittings.  2  Gill  &  .1.  2(i8;  lieddell  v. 
Dobree,  Id  Sim.  244;  Mooie  v.  Dalton,  20 
20  L.  J.  C"h.  626  ;  Hills  v.  Hills,  8  M. 
&  W.  401  ;  Itiivmond  v.  Selliek,  10 
Conn.  480  ;  Michener  v.  Dale,  23  Pa.  St. 
59;  Sessions  i\  .Moseley,  4  Cush.  87;  Jones 
V.  Dever,  16  Ala.  221  ;  Bornemaii  v. 
Sidlinjier.  15  Me.  429;  21  Me.  18.';  Peters 
V.  Fort  Madison  Co., 72  Iowa.  405:  Lowther 
V.  Lowther,  30  W.  Va.    103;    Clough   v. 


^'^;i 


I'r 


88 


COMMENTARIES  ON  SALES. 


[book  I. 


In  the  Now  Rrunswick  cnso  of  Earlo  v.  Botsford,*  to  which  wc 
have  previouHly  rcfen'od,  where  it  was  wronjrly  decided  that  "  a 
gift  made  in  conteniphition  of  death"  by  suicide,  was  not  "adrift 
made  in  eontcniphition  of  death"  (^donatio  mort'iH  cuum(i),  the  de- 
cision, on  another  ground,  is  still  worse.  In  this  case  the  ^ifts, 
duly  lal)elled,  were  (hdiverctl  by  the  donor  to  A.,  to  be  forwanled 
to  IJ.  "  ill  case  anytiiini^  should  happen  to  him "  (the  don(jr), 
wiiich,  it  was  conceded,  meant  in  case  of  the  donor's  death 
taking  place,  as  lie  contemplated,  by  suicide.  The  junior  throe 
judges  of  the  court  held  (neither  of  the  senior  three  judges  of  the 
court  sitting  in  the  case),  that  the  deliveiy  was  not  suHieicnt. 
The  case  on  this  point  is  wrongly  decided  on  two  grounds: 
(1)  The  case  was  taken  from  the  jury  by  King,  J.  (wli.j  deliv- 
ered the  judgment  of  the  court  in  bank,  the  others  simply  asseut- 
ing  to  it),  with  the  frank  admission  of  his  ignorance  of  the  law 
of  gifts  morfia  causa,  solely  on  the  grouud  that  a  gift  mortis  <-aum 
must  be  made  in  a  "  last  sickness  ;"  and,  therefore,  the  <|uestioii 
as  to  the  delivery  was  not  properly  before  the  cc-urt;  and  (2)  A 
delivery  of  a  gift  by  A.  to  B.  for  C,  in  contem|  lation  of  death, 
is  a  good  delivery  of  the  gift  mortis  causa. 

In  fact,  in  a  very  large  proportion  of  the  gifts  mortis  causa,  as 
generally  the  act  is  sudilen,  the  delivery  by  the  donor  is  to  a  third 
party,  for  the  donee.  The  decision  otherwise  in  Karle  <■.  IJots- 
ford,'-^  was  the  result  of  the  ground  of  the  decision  by  Sir  John 
Romilly,  M.  U.,  in  Powell  v.  llellicar,'^  having  not  been  understood 
by  King,  J. 

In  this  latter  case  there  was  no  delivery  of  the  subject  of  the 
intended  gift  by  the  donor  at  all,  either  to  the  donee  or  to  any 
other  person  for  her.  Tlu^  sul)jects  of  the  'Mtended  gift,  a  watch 
and  trinkets,  were  not  present,  but  a  third  party  was  directed  to 
take  the  keys  of  the  dressing-case  and  box,  and  after  the  doUMi's 
death  to  deliver,  not  even  the  dressing-case  and  Imx,  but  the  watch 
and  trinkets,  part  of  which  were  with  oiii<-:  articles  in  the  dres- 
sing-case. All  tliat  the  Master  of  the  Rolls  held  was  that  lure 
there  was  no  delivery  by  the  donor  at  all.  To  have  held  other- 
wise would  have  l»een  enlarging  the  doctrine  of  symbolical  delivery 
much  beyond  its  legitimate  scope. 


Cloii;,'li,  117  Mass.  83;  Prcsscry.  Drt'sscr, 
46  Mf.  81;  Hciis.licl  r.  Miuiivi,  <it»  Wis. 
676;  WnltiT  v.  Ford,  74  Mo.  I!i7;  Daiii.'l 
V.  Smith,  64  Cal.  346  ;  s.  c.  7.1  Cat.  .')48  ; 
Hatch  V.  Atkinson,  .''.6  Me.  li'JJ  ;  Bhm- 
chard  v.  Sheldon,  43  Vt.  .M-J;  Caldwell  v. 
Renfrew,  33  Vt.  213  ;  Trow  v.  Shannon, 
78  N.  Y.  446,  and  anthoritii's  tlieie  cited; 
Grynies  ».  Hone,  4!)  N.  Y.  17;  Hunter  w. 
Hunter,  19  Barb.  631;  Fulton  i-.  Fulton, 


48  Barb.  582;  Bed.ll  v.  Carll,  33  N.  Y. 
f)H4  ;  Wells  v.  Tiirker,  3  I'.iiiii.  'W>; 
Hathaway  I'.  Payne.  31  N.  Y.  !>2;  Jlitrlic. 
Atkinson,  56  Me.  32J ;  Kgerton  v.  Ki;i'iI'>m. 
17  N.. I.  Kq.  41!);  .Millir  c.  .I.tlVies,  4  (u  itt. 
472  ;  Savings  Bank  v.  Fojj;j,',  82  Me.  M.v 

1  23  N.  li.  Kep.  407. 

3  Ihi,/. 

8  26  Beav.  261. 


PART   II.] 


GIFTS  DISTINGUISHED. 


89 


A  very  larpro  number  of  tlio  cases  cited  on  the  subject  of  delivery 
in  notes  :5  luid  4  to  p.  87,  ante,  are  cases  where  the  delivery  of  the 
siilijcct  of  tlif  jjift  was  made  by  the  donor  to  a  third  party  for  the 
uDiK.'c,  and  such  delivery  was  held  sullicient.  The  very  late  Eng- 
lish case  of  Jn  re  Richards,  Shcnstone  c.  IJroek,'  fnlly  slated 
Hiipra,  is  of  that  nature.  So  is  Tato  v.  Leithead,'-  and  numerous 
otlxM'  cases,  Kniilish  iind  American. 

In  Moore  r.  Denton,^  the  donor  delivered  to  her  own  maid  the 
donee's  receipt  for  £.")00,  which  he  had  borrowed  from  the  donor, 
tile  donor  directing;  the  maid  not  to  let  tlie  receipt  f^o  out  <tf  her 
piisst.'ssion  until  after  her  death,  and  then,  immediately  on  her 
death,  to  delivor  the  receipt  to  the  donee.  This  was  held  a  jrogd 
gitt  mortis  I'll II m  of  tlie  amount  of  the  debt.  From  the  eases  eited 
in  that  case,  not  even  a  (|ue8tion  seems  to  have  been  raised  as  to 
the  .siitllcieney  of  the  delivery  ;  the  doul)t  i»ein,!^  as  to  whetlier  the 
(ieliveiy  of  tlie  rrcri'/if  to  the  third  party  was  a  gift  to  the  donee 
o(  the  amount  of  ids  indel)tedness. 

So  in  th(!  leadinu;  Kimlish  case  of  Drury  v.  Smith,'*  where  the 
<ril't  was  of  a  bill  of  JCIOO  <;iven  to  a  third  party  to  be  delivered 
over,  in  event  of  the  donor  dying  of  that  sickness,  to  the  donor's 
n('|ilie\v;  the  gift  was  held  to  be  a  good  gift  mortis  causa;  the 
siillieieney  of  the  delivery  not  l>eing  there,  either,  even  (luestioned. 

In  Sessions  v.  Moseley,''  Shaw,  C.  J.,  referring  to  a  gift  delivered 
to  ii  third  party  for  the  donee,  said  :  — 

"The  (|iiestion  is  whether,  under  the  circumstances,  the  trans- 
action as  stilted  by  the  sister  constituted  a  valid  gift  of  Moseley's 
note  by  the  intestate,  either  as  a  gift  inter  vivos,  or  as  a  good 
iluii'itio  causa  mortis.  The  judge  instructed  the  jury  that  if  the 
donor,  being  sick  and  apprehensive  of  death,  gave  into  the  hands 
of  L.  the  note  in  suit,  with  directioii^  to  give  it  after  his  death  to 
W.  for  his  own,  and  L.  kept  the  note  till  after  the  death  of  the 
donor,  and  tluMi  give  it  to  W.  and  he  accepted  it,  the'  plaintiff  was 
entitled  to  recover.  This  we  think  was  correct,  ilerc!  are  all  the 
roi|iii.sites  for  a  good  ilonatio  mortix  causa,  A  note  of  hand  of  a 
tliird  person  ;  a  security  for  money,  or  a  chose  in  action,  however 
it  may  have  been  formerly  eonsiilered,  is  now  held  to  be  a  jiroper 
subject  of  sii  jh  a  gift.  Inhere  was  an  actual  delirerif  to  a  person 
for  the  use  of  the  donee ;  an  expectation  of  death  ;  the  death  of  the 
donor  ensuing :  a  subsequent  delivery  to  the  donee ;  and  an  aecejit- 
anec  of  the  gilt  by  him."" 

So  in  (Jrymes  v.  Hone,'  where  the  delivery  of  bank  stock  was 


'  3ii  (li.  Div.  f)41. 

"  K:iv,  f!:)S. 

^  4  I»,-  (!.  &  Sm.  517. 

*  1  1'.  Wilis.  4U4. 


6  4  Cash.  87. 

•>  Palish  V.  Stone,  14  Tick.  198. 

T  40  N.  Y.  17. 


i 


I  ItllliBIIU 


1 

% 

■1 

i 

Wi  i 

I,  I 


* 


!  •■! 


iiili 


90 


COMMENTARIES  ON   SALES. 


[book  I. 


to  the  donor's  wife  for  the  donee,  intended  as  a  gift  mortia  cattm, 
the  court  in  sustaining  the  gift  said  :  — 

"  The  dechiration  of  tlie  donor  that  his  wife  slionUl  keep  the 
assiirnnient  and  not  hand  it  over  till  after  liis  death,  as  lie  did  not 
know  what  ini,u;iit  happen,  nor  but  that  they  niiuiit  need  it,  wiis 
simply  a  statement  of  the  law  as  to  siu-h  a  uil't,  whether  tin  h'chi- 
ration  was  or  was  not  made.  Clearly  he  eould  not  ti'll  wlieiuer  he 
should  die  or  recover  from  that  ailment.  If  he  did  recover,  tlio 
law  holds  {he  gift  void.  The  transaction  as  to  such  a  gift  is  :  The 
donor  says.'  1  am  ill,  and  fear  I  shall  die  of  this  illness;  whcn'- 
fore  1  wish  you  to  take  these  things  and  hand  them  to  my  graml- 
daughter  after  my  death,  hut  do  not  hand  them  to  her  now  as  1 
may  recover  and  need  them.'  A  good  donatio  mortin  ouhxu  always 
implies  all  this.  Jf  delivered  al)si)lutely  to  the  donee  in  |tersuii, 
the  law  holds  it  void  in  case  the  donor  recovers,  and  he  may  tlnii 
reclaim  it.'  'I'o  make  a  valid  gift  morfis  aaiixa,  it  is  not  neccssnrv 
that  there  shoidd  he  any  expres.Hipialilicatiou  in  the  transferor  tljo 
delivery.  It  may  Ijc  found  to  he  such  a  gift  from  the  attending  cir- 
cumstances, though  the  written  transfer  and  the  delivery  mr.y  lie 
absolute.  .  .  .  Was  there  a  delivery  ?  The  assignment  was  dcliv- 
eretl  to  his  wife  for  the  donee.  She  thus  Itecanje  the  agent  <•!'  tiio 
doner.     So  far  as  the  mere  delivery  is  concerned,  this  is  sulliciciit." 

In  Wells  ('.  TuckcM',*'^  the  delivery  of  the  gift  for  the  donees  was 
made  \ty  the  donor  to  his  wife.  It  was  claimed  that  the  delivery 
to  the  wife  was  in  /act  no  change  of  possession,  because  ilie  pos- 
session  of  the  wife  is  the  possession  of  the  husband.  Hut  iIks 
court  held  that  the  delivery  was  siillieient.  Tilgliman,  V.  .1,,  in 
so  holding,  Uuis  correctly  laiil  down  the  law:  — 

•*  In  the  first  place,  the  delivery  was  not  to  the  douee,  but,  fntlie 
donor's  wife,  to  be  I)y  lier  delivered  over.  There  is  jio  objeetieii 
to  this  mode  of  delivery.  Whether  made  to  the  douee  iunnedi- 
ateb  ,  or  to  another  for  his  use,  is  inunaterial.  It  was  so  tleciijed 
in  ('li'.ry  r.  Smith."'' 

So  in  Miehener  c.  Hale,*  the  donor,  iieing  on  a  voyage  froiuS;))'. 
Frane  SCO  to  I'anama,  and  lieing  attacked  with  cholera  of  wliiili  Ik' 
8p"edly  died,  delivered  gold  dust  and  coin  to  the  purser  <il  ilif 
ship,  saying  tliat  he  wished  it  to  go  to  his  brother  and  sister. 
The  court  held  that  the  gift  was  good  mortin  ran  mi  ;  that  delivery 
wa^•  indis](eusable  ;  but  whither  made  io  the  douee  innnediately  or 
to  another  for  him,  was  inunaterial.'' 

*  Staiiihiiiil  I'.  Williit,  3  Macu.  &  (ior,  ^  Aiiioii);  tlic  iiiiiiiv  I'lisrs  wliidi  lull 

(5(54.  tills  Wclli-.lMlilisli.ll    .Itiitrillr,    s.r  CI  iil::ll 

2  3  ninn.  (I'll.)  SCO.  c    clnic'li,    117    M;iss.    H;t;    ILiiin  imii 

«  1  !'.  Wmis.   I'll. 


♦  -Si  I'ii.  .St.  Ol». 


Si.UillHrr.     ti    Shrill.     (Mr.)     'J2.".  ;     Wli.r,- 

ii},'lit(;.  WlvLlii-lil,  'J  Ma.ss.   W,  ;  llat.b 


PART  II.J 


GIFTS  DISTINGUISHEO. 


01 


Wo  consi.ier  tlio  general  subject  of  H  r 
of  tli.s  uork.  "^J^^t  of  Delnery  in  a  later  volume 


r  .    ( 


i 


Itll 


w 


92 


COMMENTARIES  ON  SALES. 


[bode  I. 


BOOK   I. 


PART  III. 


'P 


III 


BATLMKXTS  DISTINGUISHED. 

WnnnR  tluM-<>  is  a  (lolivcrv  of  pci'sonnl  property  jimi  a  transfer  of 
a  spiTiul  Imt  not  the  ,L^<'iicral  property  in  ilie  tliiiiL:  transt\"':e(i,  tlic 
transfer  is  a  Itailnieiit  and  not  a  sale;'  the  licnoral  property  re- 
niaininj^  in  the  triinsferor  of  the  Mpecial  jtroperty. 

'  Cci.i;;.'s  c.  HiiiKiiil.  •-'   l.'l.  lliiyiii,  '.M";  jjnoil  Kmiliiinn  hn  lic;,'()t  it.      Affi'i'KiMliii;; 

Jotii'H  on   l!;iiliiii'iit.  1;    1   Sill.  l.'Mil.  (^ls.  it,  tlic   Iikim'   raii  awiiv  ami  was  iiiiMrtd, 

19!',  ami  iintr^  tiicii-  to  t'";;;,'s  r.  lii'rii;iii|.  aii'l   wais    not    irtiniiccl.     Tin-  court    ImM 

\n<[    siirli    \A   till-    |;iii){uav'i'    ^'cnriiijly  tih' tianMU'tion  to  lie  a  hailnii'iit  iin<l  imi  i 

(•Ill|i|iiyiMl     in    (listili;,'lli.sllili;,'    a     Ipailnirlit  salr.       .So,  wliiTC  },'ooils   Wrii'   ilrjivuri'l   lu 

from    that    tvaii>iiii-.Nioii    of    iliattrls    in  .\.  to  \»'  sold  for  tlir  |ilaintiir,  it  w.i^  In  M 

wliich    the    alisoliiti'    jTopi'ity    is    |ia.SM'i|,  tliat  tlu' conirai't  ainoiiiiti'il  to  a  liiilm.-iit 

and  wliirli,  tiioii;,'!!  in  miiIi  lasivs  tin' ion-  and  not  a  .•■alf.     Mor.vs  r.  Stoni',  .'>  Il.iih. 


Mdi-ralMii     js 


'Tiii'iallv    not    niomv. 


nsn:illv  ili^itjiiiilrd   a  sail' 
Htl 


T\ 


IS 

Ills  in  Siory 


iUi. 


Tiio  d(  ri-ii.l:int  orally  aiiii'-d  to  ( \. 


on   HiiliMi'iiis  (iitli  im|.  ),  |i.    4,  not. 


rt<'iiviiiij 


ids     f 


to   till'   |iiaintili   a   lot  of   land   vali 


ii-'i   .It 


roiii    aiioili.r,    ii|ion    an     Slim,  and  to  takr,  in   cxrli^'.nj,'!-   or  pay- 


I'liuiit  to  Sill  and  a'loiiiit  for  tlicin  to     nnnt  tlirri'lor,   i  nioiiiiiniiit,  csiiniat. 


Id 


tli< 


(Winr,  or   to  ii'tiirn  tlnni   as  ;,'o(id  as     lie  of  the  value  of  .'*'J(io,  w 


h.'ii 


wlii'ii  tiik 
to  I 


I'll.     \VI 


ill    illtrii".!,  lias   Ik'iIi  lii'ld      an  I    tin-    lialalici'    in    liiourv. 


oni|i|iti-i 
Alli'r  tl 


>('  a   liaiiiiiciit,   and    not    a 


sail 


Hailiiii'iil  li.i>  I'  ii  Ti'iii'i' to  till'  trratnii'iit  of     tri 


ni'iiiiiiiiriit      was    fiiiislii'd,     till'    |>l.iiiiliir 


I    it    to    till-   (li'li'tidaiit,    to!"iiiir 


II  c.crlain  rlialt'l  or  iliallils,  wliosr  jdiii-      willi  t'l'  imlaiiri'  in  tnoiiry,  m'l'oi.jni;;  'n 
titv    is    to    li'iiMin    lllnliaiii^rd    vliih'    tin-      tin'  loiitlatt.      Tlir   di'I'i'lidalit    li'lilsul   li 


SI-. 


il 


if   the  d.'livi'rv  is 


I'l'onipli^liid.     It  is  till'  iili  iitii'al  tliiii 


i'|>t   till'   nionuiiii'iil   (if   iiioiii-y,   or  tii 


•iw;- 


til 


'I'll- 


lint     hi'ld     tli.it 


nitt  an  ii/itiri''  III,  wlii'li  slioiild  Iw  finally  wlnllnr  tliis  was  a  sale  or  an  i'\ili:iii),'i' 
retiiriH'd  or  lU'livi'ii'd  over,  '/'/iisran/iiiiil  of  |iro|ii'rt\  was  ininiati'rial.  .\ssiiiiiiii;; 
priiifi/ili  iiiiifi iiiil  iiiiiistiiiijiiishiiiij lidu'irii      tiiat   it   was   an  fXclian;;!'  of  the  laud  li'f 


kill  I 


iiti/  uni 


I   Sil/f 


the  liioniiimiit,  with  a   liala 


in   iiiiiiiiV 


lljllriiii^  Iroiii  a  haitnieiit,  to  eoiistitiite      to  lie  |iaid  liy  the  |ilaintilf,  it   was  to  In 
i  sale  tliiie  inii-.t  lie  an  iiiti'iition  to  |>as>the     fioveiiied   liy  the  same  rules  as  a|i|>lv  to  ;! 


]iro|i.ii\ 


Vi 


"iiiK 


.Mat  1 1 


I..    H.  'i     sail  when  the  whole  I'oiisiiler.iiion  i'-  to  In 


('.  I'.  1'.'7.     Ill  I.im'i;,'iii  ('.  .S'rw.iii,  ,''i.''i  111.      |iaid   in    money;    eitin^;    Aifm.,    W   .Sulk. 
44, -H',  the  eoiiit  held  that  win  11  r^  ■  idi'ii-      l.'i";  <  oniiiionwi'ilih  r.   Claik,   It  liray, 

lieallhlllu'deliveli'd  islii  lie lestoreil.tllolljjll       'Ml,  Ii72  ;    Howard  I'.  Harris,  S  Allen,  'Ji'T 


in  an  aliiii 


d  f 


orni,  the 


iiitr 


■t  is  one  of     Th' 


illlraet     Was     tlli'lelole     held    to    li' 


liaillih  lit,  al|i|    the    title    to  the  |iro|ii'l'ty  is      within    the    ]i|'olijliition    III     the   statute  "f 
not  rliaiit.'1'il ;  hut  when  there  is  noolili^^i-      frauds,    as    i-elatiiii;    to    the  sale  of  l.iii'l 


tlon  to  le-,tiife   the    >|ie;|||e  at 


tirle 


d  tl 


Dnwlinu'   V.    MeKeiinv,    f.'l    .Mas-,.    \:*. 


reeeiver    is   at    liheity   to    reliirii  aiiotlier      Wheiv  |iiii|ierl\  has  li.en  lei 


t  in 


liloke 


tllili;;  of  i'i|llal  value,   he  lieioliies  a  ilil.lor      hands  for  sale,  and  he    has  ell'eeled  all  i  A- 

■liali;;e    to    whieh    tl wiier    assent^,    tin' 


to  III. ike  the  return,  and  the  title  to  tli< 


iiroiierlv    IS 


liair. 


d.       It 


de 


in       liloker  is    held    to    lie   entitled    to   his 


Hunt  r.  Wyiiian,  Km  Mass.    I'.is,  the  de-     mission,     i.'i'dlield  w  'W'i'^,  :!S  N.  Y,  •-'t'.'. 


fetiilant   a'_'iee.l  with   the  jilainlilf  to  take 


In  Smith  v.  Clark    '1\  Wend.  s:i.  wlinv 


the  iilainlilf's  horse,  and  try  it,  and  if  he     a  lontraet  was  made  Intwien  m  miller  iiid 
dill  not  like  it  he  would  ret'irn  it  in  as     other   ik'I'hoiin,    for    the    niiniitaetuii'   "I 


PAIIT  IH.] 


BAILMKNTS   DISTINGUISH KD. 


98 


It  is  often  a  nice  question  to  docidc,  umlcr  the  facts  of  tlic  case, 
wliitlii'i"  a  transaction  anutunts  to  a  sale  uv  is  only  a  bailnicut. 

wliiiit  into  tlnur,  ]w  rngn,i;iiisr  u'l  liis  iniit  of  Miinh  3,  187fl,  it  wns  fimctcil,  "Tliat 

for  I'Vi'iv  four  l)U'>li>'l>  iiiol  fi't   |miuiii|s  of  wliciu'Vcr  any  j,'r;iiii  shiill   ]»•  ili  /ivi ml  I'nr 

ttliiat   ircc'ivrij,  to  ihlivcr  oiii-    liaiicl   of  nfiirmji'  to  any  (u  r>on,  etc.,  suili  lidivi'iy 

siipi'iliii''  lloiii,  aihl  tlnii'  was  no  .sti|mla-  sliall   in  all  thing's  hr  iIccmumI  ami  tira'i'il 

ti.iii  or  iiii'l'istainlili;!  tiial  the  wliiat  ili'liv.  as   a    liailini'Ml,   ami    iiiit  as   a  salr  of   tii<' 

iiv.l  slioiiiil  !><•  ki'Pt  M]iaiati'   (loin   ntln'i'  iiro|i(rty    .so    iji'livi  n  .1,     nni  witli-lanilin;^ 

i^'i.iiii,  or  thai  tlii'iiiiiitii  m1  win, it  slmuM  Itc  .sinli  ;^raiii  may  lie  niin^^lcil  liy  >\u\\  liailrc 

ii'l\irniil  ill  the  I'lPini  of  llour  ;  it  was  licld,  with  thr  yiain  of  ollii-r  pcisoiis,  ami  not- 

ill  ti'i'iii--.  to  111',  ill  iU'rct,  iiiii'  of  s'l/c  ,•  not  withstaiiilinj;  siirli  ),'rain   may  U-  shi|i|H'il 

.if  Iviilint'iit.      The  I'oiirt  Inld,   that  as  tlm  or  iiinoviMl  from  tin' wairiioiisc,  elevator, 

miller  was  only  to  ihliver  ii  siwiilie  kiml  or  .ithi'f  |ilaie  white  the  same  was  stoieil. 

,it    lliiiir,    vii'.,     "slllierlille,     wairanteil    to  All'l  in  no  ease   shall    the   ;ilaiu   so  stole  1, 

iH'ar  in^lxetioii   in  Alhaiiy  or  New  York,"  aii<l  whieh  siieli    liaijee   may  hereafter   iw 

II    was   ulinlly    iiniin)">it  lilt,    umler    the  re<|iiireil    to   keep   on    haml,    lie    liaMe   to 

I'liitriict,    wlietliir    the    lloiii    was    iiianii-  sei/iiii'  n|ion  any  ]iri>. ess  of  any  eoiiit   ii> 

fiitiMe.l  from  the  (,'iaiii  le.'eived.  or  from  an  aeiion  aLraiiisi  sii.  h  hailee."    An  aetion 

iiiiv  other  :;rain.      The    iiici|ierty  in    the  was  liroii),'ht   in   MeCahe  r.  MeKiiistry,  5 

wheat    pa'Seil    liy  tlio  sale   to   the   miller  |)illnii,   rio'.i,   by  the  ]ilaintill',   as  a--si^'iieu 

wlii'll  it    V  as  ilelivePeil  at    till    mill,  and  lie  in    lialikril|itey  of  the    \V.   Co.,    to    recover 

h'l'aiiie  a  ilelitor,   ami  was   Imii-.ihI  to  pay  ii.'i7t!.iiri  alle;;eil,  to  have  heeii  paiil  hy  tlio 

'ir  the  strain   in   lloiir  of  the  spei  itieil  cle.  eonipany  to  the  tlefeiidant  as  a  fiamliileiit 

-i  riptioii   and    pro|K'ity.      I'a^es   in   eieal  preference  nmler  the  liankriipt  Acl.      I'li- 

iiniiiher^  ill  this  iciiintrv  hold  siilistaiilially  liei    a    conti.ot    eiiteiecl  imo    I.etween    the 

tie-  same  doeiiii'i'.      See,    amom,'   "thirs,  defendant  and  the   \V.  d.   alter  the  pas- 

I'.vv  ler  Co.    r.    Iliirkh.il dt,  '.'7    r.  •'^.    111',  saL;e  of  the  alioVe    Act,  t!:e   iinestiuli    aioso 

li'i    (stated    iiiti;i)  ;    I'iilc.'    v.   .Scheie  k,  W  ill    tlli'   ease  whether,  liotwithstiliililit;   tilt! 

Ilill,    Js  ;   Norton   r.    Woodriill',  'J   N.    V.  Act,   the  eontrait,    under  which    the    W. 

1,'.:{ ,    Malhav    f.    Willis,    4    N.    V.    7'!;  <'o.  received  a  c|iiaiitily  ..I  whc.it   l^i   the 

F.i^ti'r  r  I'etiihone,  7  N.  Y.  |:'3 ;  li.ihilly  defend. mt,   was  one  of  sah'  or  luilnient. 

".   Wilson,  :!   hill.   4'JO  ;  Chase  v.  Wash-  The  Ciivnit  Court,  in  allirmiun  the  jiid;;- 

I'lirn,    1    Ohio    St.    '214  ;     LoiieiHin    v.  ment  nf  the  court  Iwlow,  that,  under  tho 

Stew.irt,  .''i.'i  III.  4J;  .lohnstoii  r.  llrowne,  f.i.ts   in   the  ease,   the   traiisaition   was  ii 

:t7  Iowa,   -Jon  :    ,Sli'ariis    r.    Uayinoinl,  '2i(  .sale,   and   not    a   hailini'iit,    said:    "(iiain 

Wis,  74  ;  drier  v.  Stout,  'J  111.  .\pp.  •!"-';  niav   he   disposed  of   hy  the  owner  to  a 

llii'liardsoii    V.    Dimstead,    74    111.    •_'!•'!;  warelioiiseiiian,  or  to  an  elevator  or  mill 

11  i-tivss  r.  Chickeriii;;,  is   111.  .\pp.  lies;  piopiictur,  either  hy  .sale  or  liailment.     In 

ItiiiMs  I'.    Mil  rea,  7;">   low.i,   •Jii7  ;    liiiid  the  fumier  the  title  passes;   in  the  latter 

'■.  Wc.|,    7  Ciiw.   7."i2  :    locd    r.   .\Mmv,  it   i-inains  with  the  owier.     It    is  some- 

•JN.  Y.  Sup.  Ct.  HSU;  Carpiiitcr  r.  Ciillin,  times   dillicult    to    ditermiiii'    wleth.r    n 

'.'    I'aiue.  :!l(l  ;    Mdiiie    V.   Ilnll.illd,  :!'.•  .Me.  Ii.ii  1  iciilar  ll.ili^act iou  is  a  s.ile  (ir  iMilmelit. 

;io7  ;    C.iili^le   I'.    Wallace,    I'J   In  1.   'J.'.J.      Ifas| illc  aniniini  of  ^'i.iiii  is  ihimsitcil 

Sic   ti    .\ni.    I.aw    |{ep.    4.'i(t,    (I   S"j.  ;    '1  hy  the  owner,  which  is  md  to  he  eii.inned 
Kent's  ( 'mil.,  I'Jth  ed   .litit.  hy    the   hailei",    hut    retained   until    lalhil 
In  li'alntly  e.  Wilson,    3    I>illot|.   4'Jt>,  for,  when  the  idciitiial  niain  is  to  iie  re- 
it  WIS  held,  where  there  was    in   cxpiis-,  stond,  this  is,   nf  c<iiir-e,  a   plain  case  of 

oiitMct,   iir  an   au'iieiiii'iil    implii'<l    tioin  hailnent.      I'mhr  the   Miniiesot.i  statute, 

the  kiinwn  and  invariald iiisc  of  Kiisl-  Iiow.mi-   it    mij;lit    he   in    ihe    aliseiee   of 

Mess,  that  the  w areliouseiii.iii   or  elex.itor  Huch  an  eiiaitiiieiit,   a  specilic  amount   of 

pl'iprietor     liii','lit     iniligle    spe^itie    whe.it  Ulaill  depi>siti'd    for   Htoia;,'e  d'les  not    <ciise 

leei'iveil,   with   oihi'r  wheat   of   like    kind      to  he  a  haillie'lit.  and  docs  not  I" me  a 

iiid  !,'lade.  aihl  ship  or  sell  at  his  pleasure,  sale,    ln'cause  it   is  niili;^led    hy  the  \>are- 

Willi  till' further  a^i iiieiit  or  undcistaiid-  lioiisi'inati,  or  elevator  of  mill  proprietor, 

iiii;  that,   oil  dem.iml,   he  would  jiay  the  with  the  ;,'iiiii  of  other  persons,  .since  the 

p'Tsoli    fi'iiui  wlmni  the  ^rain  was    Icceivecl  statute  autlioli/es  the  intermixture  of  1,'iaill 

till'  llivlle^|  iii.nket    price,  or  deliver  the     of  the  same  kind  and  urade,  and  I cidzes 


'  amount  of  yia'n  of  a  like  i|Uality,  hut     the  eiuitinued 


'iship  of   the  ileposilors 


not  the  identical  '.'lain  deposited,  nor  ^'faiii      to  a  iiiiaiitity  of  ^'lain  i'.|Ual  in  amount  to 


frmii 


ly  sp,,  iiic  mass,  that  such  a  tians- 


iietimi  was  a  sah-  at   the  time  of  the  de 


livrr<,  and  not  ,i  hailmeiit.    This 


)hat 
Tie 


tl 


nin  respect ivi 


■IV  ill 


an   inlieii'iit   diirei'i 


posit' 


ictWeell 


ilcii'lc'l  ill  the  Ciii  lit  t'oiirt   for  the  d 


was      liailment  s    and    sales.        If    1    deposit    my 


IS- 


llUt 


iheat     to    Ik'    stilled    aiid    safclv    kept     for 


Iiiini'sm,!.     Suh.swiut'iitly,  by  act     me,  my  piopeity  niiiaiiis, 


iin 


il   I  c.\tuud 


'''."'■W- 


'  t 


1  ;■  i 


1     ! 


It1< 


% 


>i 


n 


94 


COMMENTARIES   ON  SALES. 


[book  1. 


Thus  tho  question  was  raised  in  Powder  Company  v.  Burkliardt,' 
whether  tho  transaction  in  that  case  was  u  bailment  or  a  salt;. 


no  cicilit  til  till'  liailci'.  lint  if  I  Ifiive 
my  wlii'ut  vviili  liini,  with  mitliority  to 
sell  it  I'lir  his  own  liriiclit,  ami  not  iis  luy 
iij^i'iit,  mid  M|ioii  Ills  |iioiiiisi'  to  |iiiy  me 
tin!  valili'  of  I  hi'  wju'al,  or  to  ^'ivc  uh?  il 
jiki;  i|ii;iMtily  of  wlicat  wlii'ii  I  sliall  tlo- 
iriainl  it,  tlif  tiaiisartioli  is  in  its  essence  il 
sale  of  my  wlieat,  iiinl  th<!  exti'mlin}^  Ijy 
Tiic  of  a  |MTsiiii,il  I'lvilit  for  its  value.  I 
see  no  satislarti/iy  evicleiiee  liiat  tiie  Min- 
nesiita  Alt  iiii'iiit  to  aliio;,'aie  essential 
(listinetiniis  iietwei'ii  haiiiiicMts  ami  sahs, 
so  f.ir,  at  iiiist,  as  to  pla^M'  tlie  Kiaiii  owner 
who  antlioii/eil  the  warehcnisemaii  to  sell, 
ami  the  i,'iMiii  ouinr  wiio  only  authoii/.eil 
him  to  store  ainl  safeiy  keeji,  niiuii  the 
same  footiiij^.  Lit  me  illustrate.  Hu[)- 
))ose  I  deliver  lOIIO  hilshels  of  wheat  to 
a  warelioiisemaii  or  eKvator  )iro]iriitor, 
with  aiuliDiity  to  sell,  and  it  is  sold  ;  and 
the  next  day  you  deliver  to  him  loofJ 
Imsliels  to  stole,  and  he  does  so  ;  the  next 
day  he  fails,  with  your  fnoo  bushels  on 
liand  and  no  more.  Was  it  intended  hy 
the  MiniieNola  lef,'i>lature  that  1  might 
lake  the  1(100  liushi  Is  by  re|>leviii,  or 
even  share  it  pni  ruin  with  you.  It  seems 
to  iiii"  not.  The  Aet,  allhoni.;li  not  <Mie- 
fidly  di'.iun,  and  in  iirniy  of  its  (irovisioiis 
hll  llnm  il.'.'lV,  siellis  thi'oii,i,diout  to  enn- 
line  its  lemedi  il  |iiovi>ious  to  jiersuiis  who 
dl•|lll^it  ;^iain  lor  'stora^je'  or  safe  keejiinif, 
and  not  to  those  who  d' 
The  Aet  is  eolieeded  to 
in  e<)nsei|Uc  IM"  of  the  de 
i;.  Wilson.  :i  ilillnli,  ('.JO; 
in  viiW  ol  the  farts  of  that  ease,  eoiisider- 
alili!  «Muliarni>-.ii,'iit  in  aseeitaiiiin;?  the 
jueejse  seo|ie  i)f  the  A 't,  althou;^h  its  eili- 
era!  iHir|io-e  is  manifest.  WliiK'  it  nnist 
lie  admin,  d  to  iiav-  made  iiM|iiirtant  luo- 
visiims  to  ]iroteet  pei-,i)n.-(  who  ileliver 
fiiinn  for  storaj^e,  1  am  ineliiied  to  think 
that  it  was  not  intendeil  to  e'ljluaee  the 
case  i){  piTMins  who  didiver  jrraiii  to  the 
warehouiemau  with  express  aiitliority  to 
•sell  the  snue  on  his  iiwn  aeeoiint,  iiinl 
iilioii  an  understaiidinj,'  that  he  is  to  pay 
the  value  of  a  like  i|uaiility  ol'  ^^'raiii,  nr 
to  deliver  a  lik.'  amount  n|iou  demand  ; 
nor  to  emhriiee  the  ease  of  luie  who  leaves 
wheat  wi'h  a  miller,  with  authoiijy,  as  in 
liandell's  ("a-.e,  L.  II.  .'1  V.  t\  lol',  to  u.se 
it  IS  |iart  of  his  eurii  nt  eonsuinal.li'  ..toek, 
and  upin  an  ai^reeiueiit  to  tiav  the  farmer 
or  owner  the  value,  or  tn  deliver  a  like 
i|i'alltity  wnen  ilemaiided."  See  II  imil- 
ton  I  National  IViiik.  H  I>illoii.  o;!o,  as 
to  (|Ucstions  tietweell  the  assignee  and 
bailieii. 

il!  the  V    y  late  case  of  Lyon  v.  Leiion, 

»  »7  V 


jM!^it  it  for  sale. 
iiave  been  |MS-.ed 

•isioii  in  li'ahiliy 
and  I  have  felt, 


(A.  1).  ISSt!),  10(5  Iml.  507,  the  defeinlaiit, 
L.,  reeeived  a  ijuaiilily  id"  wheat  froiu  the 
plaintilf,  Hi^'"?:?  '''"'  "  i'i'<'''i|'t  theierm. 
In  re|ilevin  ajjain-^t  the  defendants  for  tlic 
reeoveiy  of  the  wieat,  ihe  verdiei  iUiil 
jud;,'ineiit  bein;^  for  the  di'feiidaiits,  ilic 
court,  held  th.it,  fruin  the  evidenee,  tli" 
jury  mi;i;ht  have  found  that  L.'s  hu^ini-,, 
was  not  that  of  a  waniious)  man  ;  thai  lie 
was  engaged  ill  puieliasiiig  and  slii]i|iiiip' 
griuii;  that  the  whi'at  in  (|uestion  u  •-  li- 
liveied  u)i'iu  the  undi-rstaiidiiig,  iiiij'lii(l 
from  the  known  i.'ourse  of  L.'s  busini-s, 
that  il  was  in  uo  event  to  he  kept  fur  tlii 
plainlilf,  or  that  either  tin'  wlu-.it  deliv- 
ered, or  other  wlieat  "f  like  uiiality,  vv.is 
to  be  returmd  on  demiiml;  imt  thai  it 
v\niilil  be  sliip[M'd  and  sold  .it  L.'s  pleasure 
on  Ills  own  account,  and  ticit  the  plaiiiti!! 
was  entitled,  ll]ion  plesentatioll  ol  his  re- 
ceipts, to  diUiiaml  the  market  jnii  e  i.| 
wheat  at  the  date  of  .such  i/ieselit.itinii, 
and  iinthing  more.  Tho  court  said: 
'■  Wheat  didivered  under  sueh  a  state  m 
facLs  as  we  liave  assumed,  the  jury  mav 
have  found  woiiM  Imi  a  d(divery  in  ]ie,i 
siianee  of  a  sale.  In  .sU'di  a  traiisai  ;ji.u 
there  would  !«'  no  elelllelit  of  a  baihilelil. 
A  eontrai  t  of  Uiilmelit  contemplates  llie 
let  urn  of  the  goods  bailed,  or,  glowill;,' 
out  of  the  nei'essities  of  ciillinieree,  wlielv 
grain  is  delivi  red  in  store,  uther  gi:iiii  nf 
like  (piabty  and  grade  may  be  leturin'l  in 
its  ^Iead,  We  rcogidze  the  doiliine,  lli.ii 
if  wheat  is  delivelid  iu  p:irsuailie  (it  ;i 
fontr.K  t  of  bailiuelit,  the  mere  fact  tliat  it 
is  mixed  with  a  mass  cil'  like  ipialiiy,  wiili 

the   knowledge  of  the  depiisilur  or  ball'il, 

does  not  convert  that,  into  a  sale  wiu.li 
was    originally   a    bailment.      Nel-nni   r. 
Brown,   41   Inwa,  4.'..");    Nilson  c.  Hifwii, 
,'>:$  Iowa,  55.'>  ;  Sexton  r.  AMx'tt,  .'ei  Wis. 
ISL      rpon  tile  facts  in  this  I'asi',  tlieiv 
was   nn   bailment   to   bei/jii    with.       Wliele 
grain  is  received  by  a   lealer  under  a  cnii- 
tract,  cither  express   or  implied,   to  [oy 
the  person  d(  livering  it  the  iiiark>'t  I'li'i' 
whenever  he   idioiwes  to  I'.eniand   il,  ml 
.lucli  |,'iain    is  mixed  with  otiei   of  lik 
ipiality  in  bins  from  whicli  shipments  in 
being  made  d.iily,  there  being  no  innln 
standing  that   th     owner  shall   liive  tli 
right  to  demand  i:;her  his  own  m  a  h'^ 
(piai'lity  of  other  in  retuii),  the  di-.der  I" 
■  lines  tlio  o\\  ff-r  of  the  grain,  and  is  linl'. 
Ill  pay  for  it  ivhoiii'Ver  called  iijion.    As  r 
such  a  ease  the  eoiitraet  fioiu  tie'  1«,'.'!' 
ning  furnishes  the  criterion  by  whi' li  •! 
price   is   to   Ik!   lixei!,    it   is   not    iiiv.ili'i 
SlcConnell    c.     Haghes,     2!»    Wi-'.    .'i:t7 
llii'hardsou   v.    Oltusteud,    74    III.   il''- 

s.  no. 


* 

m 


r.\aT  III.] 


BAILMKSTS    niSTlN(;UISHED. 


96 


T))*'  i<luintitTs  jxgrped  with  one  ]>it<mnr,  tlie  inventor  and  discov- 
u or  of  an  explosive  oonj|found  called  "  dtialin,' tor  its  nianuidC- 


TIk'  i'l'v  ^^i"''"'  i»'*'"ut<'<{  tliiit  if  L.  WW 
rt\'^:Hi''<i  *»  liiiyinj;  and  sciliry;  {.Tiiiii,  :iiiii 
jurivi-.l  the  iilmiitifrs  v.li.'iit,  ii:i<l  witii 
hi-,  niiisi'iit  iiiivoil  it  wills  iith.'i-  wlicut  in 
j,i^  w;ii''li'>ii!"',  .iiul  t>:i\<'  rfiTi|.(n  Im  it 
sl!,,»iii;;  till'  iiiiinlx'i  (>{'  ln.^'lici"  rtifivoii, 
ami  with  li!-!  ii'iisrnt  iliij'i-il  urnl  soM 
(lis  •.vluut  vitloiit  any  .i;'""''""''"  '-"  's^''"' 
;i  liki'  t|Miiiilitv  111  Hltivi'  til  I"'  iiclivi'r<-<i  u> 
'lit  |.l:iiiititr  (  !i  (Itniimil,  tln-n  tin-  tnin-,i,'. 
:ii.ii  «  i«  a  siilr.  T!i''  court,  -ii  susiiuniiij; 
ti»M'  iiiHtTtutions,  Mill :  "Tiiis  wilk  a  siib- 
Miiiiii.iily  iwriTi-t  sl.itcni.'nt  of  tin-  h\\. 
]i  tidMi  the  eir<'>niis»ur!i'i's  an  ajiu'i-ini  ii; 
.•.iiiM  liat-e  UiU  inlcn-i'*!  ti«at  tin"  jiliiin- 
!ii!\  will  at  niijrhl  ^<'  sold  withoMt  kvcini^j,' 
I'ilinT  that  or  any  mliiT  ti>  riji^icf  it  mi 
iliiiFaiul.  wi-  ait'  iiiialik'  to  fon/iH"  liow 
i;  .(inltl  have  bi'cii  Ikmhi'C]  .i  bailim'iit. 
Wlic'iv  wheat  is  n'rcivi-ii  uihIii-  \)u-  rii- 
I  niii>(a!u'i's  .suji(his(mI,  it  tin-  tk-alrr  has 
thf  ri^;ht  at  liis  [I'lasiirc  cifliffMo  siiiji 
and  sell  till-  saiMi'  nil  his  own  .iriouiit,  and 
|iay  llic  inalkct  (^lic*'  nil  dcnian  ).  <)V  retain 
.iiiil  nililiver  the  wliciU,  or  otlni  niii  at  in 
rill-  iihuf  of  it,  the  traiisH  tioii  is  a  s:i'.c-. 
It  is  (piily  wIk'I.'  till'  iiailirt'  retains  the 
iiLiliI  !Vcini  the  tH';,''.nnin^  t<v  L'lert  wlnllni 
li'  ttill  ill  liialid  the  i<delieeiy  of  hi^  |i|i>ii- 
titv,  nr  iiiher  of  like  (|iuility  arid  ^rade, 
that  till  ,  (intiiiet  will  hi-  (-onstined  to  he 
..'a-  (d'  iiiilnient.  If  he  MiMenders  to  l!ie 
nilier  ihe  ii;,'lit  of  i  lection,  it  will  lie  e.m- 
^idered  a  --ali',  with  an  O|nion  on  th"  part 
iif  tile  iiMn-haser  to  jtay  cither  in  ii!(;ii<y  or 
|.ri)j«-rly  as  stipulated.  The  distni-iioi' 
;-,  iini  the  depositor  hy  !iis  contrait  coin- 
jiel  a  delivi-ry  of  wheat,  whether  the  ileiile', 
is  williii},'  or  not  >  If  he  eaii,  tho  iriiisa-  - 
tioti  1^  a  liailiiienf.  If  the  dealer  lias  the 
option  to  pay  for  it  in  money  «i  oihei 
wheat,  it  is  a  sale.  .I(dins|<)iie  r.  I'lniw-iii'. 
17  Iowa,  -JIXI;  Ch.isi  r.  Washhuni,  1  <>|n,, 
*»;  •J-X."  Anstrie  v.  S'-lif;iniiii,  I*  Ke.l. 
iep.  .Ml';  liii;;hes  r.  Staiih  y,  «'«  low  1, 
'!2."i ;  Wilson  v.  Coiiper,  'iC  low-.  .')»!•">; 
Seyiitiiill  1:  Wyekotf,  10  N.  Y.  "ilti;  Kwiii;; 
Cl'ivudi,  1  "niaeKJ.  "M;  |hitl"r!i<  !•)  •• 
hathnip,  71  Pa.  St.  'J-J'!  ;  Harn.-s  r.  V- 
Ciea  (\  I,  -iiH).  ::,  lowif,  ;i»>7;  .\>l'l>y 
'■.  \V.-«-.  ■.  ii  t7o;  I'rildile  1:  Kent,  !'• 
iud.  ::■:.:■  :  Ki^himek  I'.  V.ui  Diiwii.  ;t:i 
MiiiM.  '.  Ii,  Vj:t,  hold  the  <unie  dix  trine. 

Till'  loiitraet  in  Ciilis'.r  1  Walh  •',  I'i 
hid  iJ.'i'J,  was  that  wheat  wllieh  was  pi  i<  ed 
:!i  '»i'.  def.  iidant'.s  mill  w»s  delivered  and 
rceiivcl  upon  the  terms  tl^tt  the  deferd,- 
•>nt  w.is  at  lilu  rt\  to  mix  il  with  kis  own, 
'I'livfif  it  into  floiii-  wheii  he  pleased,  .-^ell 
'lie  floii"-,  and  a|iprojiriate  the  proceeds  to 
lii*  own  use  ;  and  *•;  -w  rrr  the  jdainfiff 
'-^iw  lit,  he  had  a  richt  to  *-«wt  from  '.Iw 


defendant,  the  same  rjimntity  111  kind  of 
".  h"nt,  or  the  ainoMiil  id'  Hour  .so  iiiiieh 
n  iieat  wii-iM  make,  or  the  tln'ii  pric-  of 
wheat  jK-r  !nis|,el  in  iniiiiey.  'I'lie  wli,'»l 
w-ius  eonsiiined,  with  the  mill  111  whitdi  il 
was,  tiy  iiiu.  Ill  an  artiop,  li,i  the  priee, 
the  delelldal.t  r<-litd  Upon  an  alle;,'ed  Clis- 
toMi  ('f  the  hi.-,ilii\  tl:it  when  niiliers  re- 
eeive'l  wheat  oil  t!ie  telllis  nalili'd,  it  was 
at  the  risk  id'  the  seller  until  he  1  ailed  for 
his  pay,  '111"  eonrt  held  that  no  sm  h 
(-ii^toiir,  a-sniiiiiiji;  even  that  it  was  valid, 
was  (-stalili.-heil  ;  and,  further,  that  as 
neither  the  idelitieal  W  hi-llt  liol  the  tlolir 
made  IVoiii  it  was  to  l>e  returned  to  tli»> 
jilaintitf,  and  the  wheat  was  not  to  lie 
kept  sepaiati-,  luit  to  he  mixed  with  that 
<d'  the  delVndant,  and  tiseii  by  him  wlit-n 
he  ph-nsed,  the  eontraet  of  delivery  nmst 
lie  lef^.irdi'd,  U]ioii  its  terms,  as  one  of  '■nh' 
atid  not  of  tiailme'it. 

In  .lours  i>.  Keiop,  ■!!»  Mieh.  !»,  in  '•  • 
toiler,  1^7,'),  plaiiitilV  deliveiid  wliiat  to 
di-leiiil.iiil,  niider  .111  arraiij,'.  :ni  nl  that  the 
wheat  wa^  ti>  ln'  ]iaid  for  on  delivery,  or  at 
an;-  Mihsi-.nieiit  time  when  tiie  ]i!aintilf 
ili-niaiid 'd.  payment,  at  the  ((liee  thill  eiir- 
lelif.  Till-  del'riidalit  had  the  lif^ht  to  lldv 
the  wheat  with  ollie.  wheat,  and  to  use  it. 
li\  .hint,  lS7ti,  the  pl.'il.tid  ealled  for  his 
jiayiia  Mt,  and  v:;y>-  imh  eed  hy  the  defeud- 
lillt  to  take  till-  del'elidalit  s  ehei  k  for  the 
aiiuniiil.  The  deleiithii  t  was  tlhli  insol- 
Vent,  and  the  cheek  was  no!  paid.  The 
ai-tioii  was  (Ml  the  easi-  for  li.iiid  in  the 
)i!lli-liiise.  The  eonrt  bi-low  held  thai  the 
deposit  was  a  hailmeni,  and  the  M-nii.sa(-- 
tion  of  .hine  the  onlv  sale,  and  f^avt;  jndn- 
iiieiit  !or  the  plaiiitill.  T!ie  .'Supreme  four' 
0/  Mil  hij^ali  held,  level.-iiii;  the  jud;;ine|i«, 
tliat  a«  till-  pliintilf  reserved  no  rij/ht  to 
reeiill  the  will  at,  or  any  wheat  m  Hour  lu 
its  pl.ii-e,  iil;d  the  deteiidalil  le.servid  110 
li'.dit  ti.  M-liirn  it  ai  tu.diy  or  in  kind,  he 
was  InmiiiiiI  at  all  e\i  lit--  to  ke"p  il,  and  to 
p.iv  t<»  it  on  deni.uid  ;  the  money  l.ein^ 
payiiliie  w-ithout  <  ontineeiny,  and  ih'' 
transai-tiini  "f  Oeloher  hi-iiii.'  a  sale  and 
ih-livery  and  not  a  liailnnnt,  the  plain- 
titf's  only  remedy  wa^  tm  tl  e  price  of  lin- 
wheiit.  Ives  r."  ilaitley,  .M  111.  .OJIt,  is 
another  ra.se,  where,  undi-r  facts  .somew hat 
similar  to  those  in  .lones  r.  Ki'inp,  4it 
Mieh.  !»,  till- def.-nd.iiit  was  held  liahie  for 
wheat  whli  h  he  1  lailin  d  wai.  n-ceived  foi 
stora<;e  only,  and  whi.h  wan  hiiriit, — 1\\^ 
eontraet  Uiidi-i  whiidi  tin-  wheat  was  re- 
et-ivid,  and  JMrl  ol  Mhieh  was  paid  lor  in 
Hour,  U-iu^t  held  to  have  lieeii  a  sale  and 
not  H  Kidment. 

Ill  Sl.iiigliii'i  r.  I'IrerM,  !<  Hand.  (Va.) 
3.  it  wap  held,    will  if»  wlo-at  is  delivered 


•* 


i  1^  I 


^l.:! 


ii .  I 


I    I 


96 


tOMMENT.VUIKS   ON   S.\LKS. 


[«00_K    I. 


(lu'p  ;    wiiiclj  the  plaintilTs  wen;  to   have  the  exclusive  riijlit  of 
selling  to  otljers.     The  phiint ill's   were  to  advuncu    to    Diltmai 


lit  fi  mill  to  lu'  i»routi(l,  u]k)1i  an  .•i;^ifi'iii(  iit 
that  till!  iiiilliT  slial!  li'tillli  a  fjivcii  .m  .11- 
lily  of  tloilf  for  so  IllilJiy  liuslicls  ot  wll.at, 
tlir  iiiillcr  is  II  Imilfc  n>!<l  mil  a  piiri  iiasri- ; 
.iiiil,  thi'ii'tnic,  it'  tin-  wlicat  1m'  loiisuiui'il 
liy  ai'i'iilciital  liri*,  the  iiiiiliT  will  not  In' 
ri's|)oiisilil<'  for  it  ;  ami  that,  altiii>ii;;h  thi- 
luiilfi'stnliiliii;^  was  that  the  liiilji'l'  was  imt 
lioiiiiil  to  return  th>'  lloiir  iiiaih'  from  that 
I'li'iitical  uiiiMt,  liul  mi^;lit  iituiii  Hour 
of  a  ci'rtiiiii  quality  liiailc  fioiii  any  win  at 
in  tlm  mill.  Sim-  Ko.slcr  1.  I'lililioni',  7 
N.  V.  4:{:{ ;  MraiJowiiMft  v.  (ii'rman  Na- 
tional Hank,  <),''>  III.  l'2i  :  I'anailian  Hank 
I.  MrCriM,  ini)  111.  2S1,  .So.  in  .Nation  il 
r..ink  of  I'lintiar  V.  LaiiKiin  (a.  i>.  1"*'s.s), 
2S  111.  .\|i|>.  41)1,  it  was  hrhl,  that  in  a 
ilrpDsit  .if  jtt.iin  in  a  |inlilir  wai'lioUM',  to 
111-  inivi'd  «  illi  otlii'r  ^rain,  sii.h  (Ifpo^iinr 
lirciimi's  till  ottiiiT  of  an  I'lpial  i|iiantit; 
iif  i^'iain  of  till!  same  kiml  ami  ijii.ility  as 
tlial  ili'positiil,  ami  that  tin'  titli'  to  mk  li 
ili'|io>iti'il  1,'raiii  ilocs  nut  pass  to  tin-  wair- 
liouM'inan  ;  it  liciii);  a  liailinriit  ami  not  a 
sdi'.  Bri-tz  r.  Dirlil  ( \.  ti.  1H88),  117 
I'll.  "18!!,  is  to  till'  sani  ■  .'H'lrt.  ."^I'l',  alM,, 
the  Canadiin  I  ascs  (if  .SiiphiMison  r.  Kan- 
ni'y,  *2  V.  C.  ('.  I'.  llMi  ;  Isaac  1:  .\mliiw>, 
2S  V.  i\  ('.  I'.  JO  ,  //(  ,/■  Willi.iiiis,  ai 
r.(\  (}.  W.  U:!,  in  a.conl. 

In    till'    vriy    r lit    rase    of   Iti'liciil's 

Ailiiiiiistr.  i:  (■li'iii  (\i>v.  II,  lS8'.i),  Si! 
Va.  :i7l,  .1  rri-ripi  \\t\  wli'it  ivn.jv,,!  |,y 
till-  ili'l'i'iidant  w.is  j^ivi'ii  K.,  rontainiii}; 
till'  I'laiisi'  "  for  wliii  li  «!•  iiic  to  pay 
inarki't  piii'i-  suim'  ipiality  of  wlii'at  irlmi- 
fri-r  Mr.  Ji.  irni/i  fn  srl/  sitiin."  Tlii' 
vhi'at  was  iisrd  liy  tin-  ihli'mlants,  siiIim'- 
ipii'iit  to  whii'h  llirir  mill,  rontainin;^'  a 
l.ii;,'!'  'piantity  of  wlnMl,  was  liiiint.  .All 
of  till'  wliiMl  savccl  was  solil  liy  tlii'  dc 
fi'ndants.  Tlii>  drl'mdants  ilainii'd  that 
thov  weir  not  p'lii'liaM'rs  of  tin-  wlirat, 
bill  iiailiTs  tlnrtiif,  and  ilainifd  that   the 

wheat  I ivi'd  Ironi  i{.,  Iiiiii','  in   >torai,'f 

"Illy,  hlionid  hiMir  its  p!o|i<irtion  ot  ihi- 
lossof  wln'at  irsidtiiiL;  li.iin  tin)  lil'i'.  The 
Circuit  Court  jii-.c  on  the  trial,  in  cll'''i, 
siistaiiii'd  "lii«.  ciititciition,  and  icfiiscd  to 
diiTi't  till'  jury  that  if  tin-  contniit  wnc 
tliut  til"  d'f'-iid.int..  \\f\f  to  |iay  fur  (he 
wlit'at  lit  th"'  tiiarkct  priii-  wlicm  vcr  li. 
.should  iiaiiic  til),  time  III  thcniaikci  niicc 
thiMi'for,  and  that  the  defendants  hail  the 
lii,dit  to  iiM'  till'  wlii'at  a-  llicy  thoULrht 
proper,  then  siieli  contract  was  a  sah-  of 
the  wheat  and  not  a  iMilimnt.  'I'lie Jury,  liy 
tlieitr  limliiij^,  siist. lined  the  defendants' con- 
tention, iimier  the  iiistrnetiiiii  of  the  iMunt 

I  hit  the  law  of  tl»>- 1  as niiiielli  d  a  limliii;; 

c|  a  liiiilnieiit  rtt*  :1lii*  wheat  iinti  not  a  siile. 
TlK'.''>ii]treni  •(  uuin  .if  Viririnia  lielii(IjH\\  I,, 


I'.,  dissenting,'),  that  tin-  instnii'tion  ask.'i 

lor    was    iniplo|ierly    refllsi'il,   iind     till    III 

striietiiiii  ;;iveii  NVa->  wroni; ;  tliiit  the  r i|.I, 

ciinsti  iii'.l  in  the  li;^lit  of  the  suriiiniiilin^ 
lact>,  aiel  aecol'lili^  to  the  a.'cuiille  e.\p.>.,|. 
tion  of  the  law  .IS  lai.l  down  in  I'nu.l.r 
Coini-imy  c.  lliirkhardt,  !•?  r..S.  lln^ti!..! 
•''■"/"■").  sliiiwed  a  sale  .Hid  mn  a  liailneiil  ; 
and  they  set  asi.le  the  verdict,  reversed  tli.' 
jiiilijiiieiit,  and  ordered  a  new  trial.  Iii;i 
Vcceiit  Illinois  case(.lnm'  i;5,  18«7),  Haul- 
werk  V.  f>-.\Mioil,  'Si  III.  App.  2ii"J,  \.iv 
niiicli  us  in  Hidierd's  .Adinstr,  r.  ('Icin, 
Mi  Va.  :J7I,  •ivilU  was  delivered  to  .\|., 
the  plaintill's  a>sij;noi,  liy  the  lh'lelll|.lllt^ 
nmh  r  an  ac;recnicnt  th.it  they  shuiiM  Ik' 
•diiiwed  to  ciuiie  in  at  suine  future  day  mil 
select  a  market  price  at  which  the  ;;rini 
slnuild  lie  Mtlleil  fur.  'I'lie  court  liiil 
that  the  tiaiis.iciion  was  a  sale  and  nut  1 
liieiv  liailnnnl,  and  that  the  title  tn  il.. 
pKiperty  Voted  in  .M.,  and  all  that  i.- 
inaitied  to   lie   done  was  for  the  .h'teli'liilit- 

to  lix    the   price  iif  the  j,'rain  iin.l.i   iji.' 
iijition    yiven    them,    by    dc..,i;;n;itiii^    <n\ 

s.ilile  fntllle.lav  the  nialkel  pllceiiftll.il 
.la\  l>  their  selection  (l.oiiei^all  C.  .'sti'M- 
.irt',  ."..'•  111.  It  ;  hes  V.  Ilirtlcv,  Til  III. 
.'i'Jii  ;  .M.  I'lwcn  r.  .Murey,  tin  III.  ;i'J)  ;  .ml 
that  this  iipti.in  must  Ih' excriivd  withiii 
a  reasiinalili'  lime  ;  and  if,  on  deiiiiiii'l,  11 
was  nut  Ml  cxcii  is.'.l,  the  other  p.irv  I'. 
the  a^'ieeiiicnt  i-ollld  hilii-elf  lix  lie  .in, 
and  miiify  the  other  parties  accm  liii_'U. 
.Sie  lliilil.ell  r.  Villi  .>>.  h.i  niiii!.  lit  .N'  \ 
:i"Jii  ;  Ha|i','oiii|  r.  .'shiw,  lii.'i  M.i>s.  1:711. 
r.ink  '■.  II  1,^^11.1.  I  I'elers,  ).").'i,  |i;.'i ;  N.I- 
son  r.  I'liiii|i|.in,  iScc.  Co.,  ;"(.')  N.  V.  ts" ; 
'rnimi  c.  .\Iclli.  r,  'i!'  Mo.  Ci'l<\  :  l.v.ni  '■■ 
C11II11  itson,  s:!  111.  ;.!:i  ;  |)ii;,'j,'elt  c  l!r.i»:i. 
2S  111.   I'.U. 

In  I'liciictt  >'.  riiok,  »VJ  I'a,  l!i:^  tli- 
plaintill's  deliveri'd  ('.  a  iinaniiiy  of  hii'^ 
under  a  contract  tli.it  he  was  to  have  iliciii 
at  the  remilar  cash  prices;  to  laii  llntu, 
and  L'tiiin  the  lealliii  to  the  pl.iiiitlll-, 
who.  allel  deduitilij,'  the  price  ul  liliii\ 
ciiiiimissiiiii,  intei'.'si,  .ind  other  curi.  at  '■\ 
pilises,  Wi'l.'  tocieilit  C.  with  the  hiiilic'. 
I'illcicnt  loN  ..f  hi.liM  were  filllii-lii-i 
(J.  liy  Ihe  iilaiiitilf>,  lotheiiill  11  ui-'ii'i' 
of  each  iiit  ( ',  si..,'niii!,'  a  iie'iiiiriiidiiiii 
to  Ihe  .llecl  that  the  riyhl  of  o\Mi.'lsiil|i 
in  III"  hides  was  to  lie  and  leinain  in  tli.' 
pliintilfs;  C.  a;.'rceinj;  to  I'tiiin  thciiitii' 
amiiiiiit     of    leather     produced     iVelii    tl"' 

hill.'..        ,'^..11 1    thi'    hnles   li.iviii:.'  '"•'f 

taken  in  e.xeciition  a;piilisl  V.  :  illelcr  I'l 
ini.'rpli'adi'i.  it  was  contend. '1.  .111  l"' 
air  hic  iiv  I'l  .III  I'Npii'MHion  in  Wiiliaiii"'" 
I.  IWrn-,  H  II..W  .^44.  that  "11  s,ile  i^  1 
.ontf*t  to  pass  the  rii(ht  to  propiit.v  I'" 


t 
cr. 


P.\RT 

fuiul.s 
luakT 

llUlllt'i/, 
M'll.T,   "  I 

Jl.lS.Mll 

ail  e^sl■li 
Ha>  a  -11 
"TlM.l.i 

tllc      will 

cliar;;c.| 
tli.y   w 
ami   ,1   .,, 
'Die   |.|.iii 
ili.>cl...>..| 
sire  I,,  hi 

III/    OMIiiT, 

III  liav.'  it 

IhtII  IK.tliil 
ll.lVe  III  sjl,. 
tile  tl  llisa.l 
'■'"■IWd,  the 
"lid  Wlirii  Ic 
'»'  liiil'i  hv 
Illivsiiins    {,,!■ 

I'''ii--cs,  and  I 
||'-fcii.lai/t\  ,1 
f"  laar  oi  a  i 

Ili.S  Uttll   t'OlMl> 

t'l'iiiiiiis^iiiii.s 

Sides  1,1    t|„.,„_ 

'"•iliaci  Was  I 

'"'iliiicni.      ,Jt 

**'•'»>■  l:'l,  111 

"','n  is  to  111, 

'''ii'  llliimi.s  ( 

miteiiM.  ((.,.,, 

'-'"'«' rill;,',  IS 

I'lllai).!..    Ul 

l..iiiir;,'aii  V.  Sie 

s*'"  '••  01, „,,,.,„ 

CUScs  He  ii,,v,.  Ill 

■:«f"l'd  Lnv  nf  t 
j'li'iticiil  iliiiij^,  , 
'"  ''"■  same  or 

tr.i.t  is  on,.  „(•  I 
tic  pr„,i,.,.,y  i, 
'fw''  is  no  ii|,|i„ 
'"''■  article,  „,|,|'' 
'"  "t  ini  aiM„!„.| 
';■  '"■'■'"lies  n  ,|,.|,| 
"'««"lMo   ll„.    ,, 

yf;    Im    this' 

;•'"'"' tl'.tthev  I 

L ''"".'  *'"  •  '"''I 

"•"f''  •'^'dn„.,it,  „ 

'^'•■""••'f    h-lwe,., 
'*7'  •"  sell  t;,i.  ,,ii, 

f''.'    ""■'-.     thev    I 

£".""!"li"invoi. 
5;'"-^'.^''>ren.nir 
""L    I. 


of 


BAILMENTS   DlSTIKomSHED. 


97 


PART  in.J 

funds  for  exDcnsoQ  nt  ^       ,  ^^ 

Hits  a  .sa  ..  of  th..  ),i,l  "      •.;      ^"""«Ktion      ",.,„    i      \     "■  '""  «a.s  Hritf,^,  ,'  '''• 

'"■111  iii,|)i,„,,,,|- this  ;„    '      '"•      "'"I  <li,n,     .;,,,.'.  .'  ;;'"'  /"  ••'Hvr  „,,  ,,       ,     '  "]  rcil 


,,.. 


til''  t''ii>a.(i„n'-i"4iJ,.       '11.  ■  ,  •" 

'":  ■•*"'''  I'-v  111.'  i.i,-.i.,ti  I .  ,  '  ^  "■"■•*  '" 

""-M-'ii.t  (or  s,il..'  '•'"•'■^'11),^  ,,„„. 


''is  uu„  ,-„  ,1         • '''"^''iW  iii(..n..st  Hifaint       ♦      ''"'""-  i-^  f'cm.lMlr,,/     n  *-'''""•■■*  'xul 


f'""'''"  '■"■''  'l'nv'L'v''n'.  "•""'" 
''''''''■^^■|"t^S|^HH•t\-  11  .'•■'''''"'''■''  ''V 
-''^^0,n..s,.a,|^'    ••;;'•,,■';  K-'.-lunl. 

«'-^'««vJ,.v,.„l,.v,.,.v    ■•   ''•  "'"'    "t'l-r 
T'''''''''Vof  ,/s  •''';','■'•■■'■•'!'''■".  li- 

""•"'  '^  "111'  ..r  I   I        '  '"'"'  «''-•  '■..M. 

'"■'■'■  '^  ""  "Mi-,,  ,„        "      '■   '"'•  "'-I' 

'"'  '"''•"""'s  1.  ,|.|,t,„   t,  I      '■''"■■''    *•'''"'. 

"""-•oil,-.  .M,.:.";''^"'.'"-"""  ami 


^''n>     i,:,,], ,.  '""      I'll'     <ll!lM.r,.,„„,,.  ,.    ,  '    " 


"."'•'■  till'  il.liv,,vV  '^7'l-^"'"o 

'^'""  "'.>■  "tl..',  ,1,  vi, "  "''•"•"'•••  "*  ""  i'Htur 
I"  .J.nlvM,.s  t-    Ki,.i„.„,p      . 

'•'■^''"^ '"  tiios.  .;i  „.;.,' '""'I"""- I'i.s 


!'•  .Hviicr,  'kj. 


•li-m  o.,„.    ,  .'  '^^''  «"  tli,.y  .,,,,1,1    '    "'^         ••"'::>■*'•  'f.  I.  f.'w;o.    &  ll  .  "  .   '87  i 


|''"'""l!s  ih..  i„;:..i    ''*.  ^'^    ••'•"'it  to    (hi, 
'''''''«asi./,r      '''''-'■'*  "fill.- ;.i,wi, 

'"''"fi"v.iic<.o      .."'""■"" \     ll'  th. 


^,  H'-".'.ii.'t,  r  ■>    V   .■,.f-TJ-'^=  '''^'' 

"iintsman,    i,o    j"    ";  ""  !  '*<t"'lli.l.|  <•. 


•.   'AH 


»i 


98 


COMMENTARIES  ON   SALES. 


[book  I. 


',,  '«! 


wore  to  be  charged  to  Dittmnr  apainst  the  manufactured  goods  to 
be  consigucd  to  the  plaintiffs.    The  question  arose  between  tlie 


tlin  article  ami  rftiiin  a  lien  on  it  sovorcil 
Iroiii  till!  possi'sHiuii,  the  transiictinii  will 
lie  lii'M  tu  1h!  II  siilt)  un<l|n(>tik  luiiliin'iit. 
Jciikiiis  V.  Kiilii'lliergor,  4  W'litts,  I'Jl. 
WliLTc,  howcviT,  till'  coiisi^iiiiieiit  is  fouiiil 
to  1)0  hunti  Jiili;  luiil  the  |)io|MTtv  in  tlii" 
ffnoiln  iviiiaiiis  in  the  (iDU.sigiinr,  the  tniiis- 
iit'tiuii  will  not  Im!  (leenieil  a  wile  merely 
liceituso  the  consignee  is  allowed  all  tlio 
nilvanee  on  fjootls  lie  may  olitain  over  their 
invoiee  priie,  the  loss  by  sale  or  hy  tire 
iM'iiig  in  the  eonsijjnor.  MiCiilloiif^h  v. 
Porter,  4  \V.  &  S.  177.  Ami  in  Wheleer  & 
Wilson  Maiiut.  Co.  v.  Ileil,  ll."!  I'a.  487, 
where  thei|uestion  arose  lii-tween  the  par- 
ties to  the  contract,  where  there  was  a  letting; 
by  the  ]ilaintiirs  of  a  sewing-machine,  to 
the  (lernilaiits,  lor  SKi  paiil,  ami  a  monthly 
rental  to  lie  paici  lor  luiirteeii  moiitlis,iiii  the 
IMiyment  of  which  rental  ami  $1  purchase- 
miiney  the  plaiiititrs  were  to  si'll  ami  deliver 
the  mai'hiiie  hy  a  good  and  slltli'.'ieiit  hill  of 
Hale  to  the  delendaiits  ;  the  property  until 
the  il  was  p.iid  to  remain  in  the  iilaiiitills  ; 
the  court  hi'lil,  that,  as  Ix'twi'cn  the  parties 
to  til?!  agieeiiient,  the  transaction  was  to 
nil  intents  and  iiur|ioses  a  hailmi-nt  and 
mil  a  sale.  See  Kdwards'  Appeal,  105  I'a. 
l(i:{  ;  Dando  c.  iMiiilds,  105  I'a.  H  ; 
Forrest  V.  Nelson,  108  I'li.  4S1  ;  Kiilow  v. 
Klein,  7'.t  Pa.  488  :  ]{owe  i-.  Sharp,  51 
I'a.  ;J0;  .Sladtfcid  V.  lluntsiiian,  1)2  I'a. 
5:S;  llaak  v.  IJnd.rman,  (J4  i'a.  41)7. 
But  ill  Will!  Hook-Si'wiiig  Mach.  Co.  r. 
Ciowell  (17  .laniiary,  13S7,  in  the  Supreme 
Court  ol  Pennsylvania),  8  Atl.  I!ep.  22, 
where  the  ipiestion  was  hctweeii  the  plaill- 
till's  and  an  execution  creditor  of  N., 
where  the  ]ilaiiitill's  di-livcred  N.  a  ma- 
chine, takiiin  his  promissory  notes  for  the 
tail  pric)!  of  the  m;ic)iiiii-,  with  a  pro- 
vision that  when  the  notes  Were  paid,  a 
lull  of  sale  Would  ho  given  N.  tor  the 
iiiiichine  ;  the  propi^rty  meantime  remain- 
in,'  in  N.  ;  if  was  held,  that  it  was  a  clear 
ease  of  cnipiitioiial  s.ile  on  credit,  followed 
liy  a  delivery  of  possession,  with  a  provision 
to  convert  the  sale  into  a  hailinciit  if  the 
piii'e  of  the  machine  should  not  Ik-  paid, 
and  that  the  ell'ei't  of  this  provision  was 
not  sullicieiit  to  convert  the  contract  into 
.1  hailmeiil  (til  iiiiHii.  We  consider  the 
ipiestion  of  apparent  possession  fully  in  a 
later  volume  of  this  work.  See  further 
on  conditional  sales,  Carleton  v.  Sumner, 
4  Pick.  5I«;  Smith  v.  Deniiie,  6  Pii  k. 
662 ;  Leveii  r.  Smith,  1  Denio,  571  ; 
Dresser  Maiiiif.  Co.  v.  Waterston,  3 
Met.  it  ;  Fallow  V.  Ellis,  15  C.rav,  22!)  ; 
Ooodwin  V.  Boston,  &c.  Uy.  Co.,  Ill 
Wiuss.  487  ;  Sciiilder  v.  Hradhury,  lot! 
Maiis.    422;    Haiikiiis    v.    Warren,    115 


Ma.«s.  514  ;  Frroman  r,  Nichols,  llfi 
Mass.  301);  Boweii  i'.  Biirk,  13  Pa.  St 
140  ;   Mixer  I'.  Cook,  31  .Me.  340. 

In  an  tlntario  case,  Moore  v.  SihtiiiM, 
2!)  V.  C.  (l  B.  487,  the  defendant  uivc 
S20  for  a  colt  in  his  possession,  to  the 
plaint iir,  under  an  agreement  tli;it  In. 
woiilil  give  the  colt  hack  to  the  plaiiitiir 
on  luiymetit  of  ^20  ami  twehe  ;)<■/■  ciiit,  i.n 
or  l«-lore  a  named  date,  with  a  ]l|Mvi^illIl 
that  if  the  saiiii!  were  not  paid,  tie-  iji'. 
feiidant  could  do  as  he  pleased  wil!i  tiio 
colt.  Plaiiitiir  jiaid  .?I5,  hut,  piyiii); 
nothing  more,  tlie  defciulaiit,  altir  tin- 
dati'  named,  sold  the  colt.  The  court 
held  that  the  transaction  was  a  silc  with 
a  right  of  rc-]iiircliase,  and  as  it  wa^  nut 
exercised  liy  the  named  date,  tie'  ii;;lit 
was  gone,  and  trover  woiiM  not  lli',  lint 
that  the  plaintill'  was  entitled  to  i  H" 
payment   of  the   .$15  as  iikiiicv  ImiI  ;in<i 

received.  See  Milgatu  C.  Kelilij.,  I!  M.  ,V 
(!.  Km  ,  Williams  r.  Owen,  5  .M\  I.  i<.  <'|. 
3o;i  ;  Barrell  v.  Sihine,  1  Vein  '.'ilS ; 
Mcllor  V.  I,ees,  2  Atk  4!<4  ;  .S.vi.r  t\ 
Creenw.iy,  11)  Ves.  413  ;  Perry  r.  Mc.eln\i. 
croft,  4  lieav.  li»7;  Davis  i'.  Tliniu.is,  1 
Hiiss.  &  .Myl.  50ti.  So,  in  I'mn  v  v- 
Caiiiois,  3(i"l,a.  Ann.  401  (a.  n.  bS<), 
where  securities  were  transleried  liy  tlit 
jil.iiiititf  to  tho  ilefemlaiits  as  ah-iliite 
owners,  to  meet  an  imlclptedniss,  wlili  ,i 
sulise(|Uent  agreement  to  allow  lie'  pliiii- 
till  to  redeem  them  within  a  iiiiiiici  :iiii>  ; 
the  court  held  that  the  coiitnut  \»  is  one 
of  sale  and  giving  in  payment,  niuiiirh  >l  by 
an  agreement  of  the  right  of  ic.|iiii|iiinii 
in  favor  of  plaintitf,  to  he  exerci-c!  hiiImii 
a  siiecilleil  time  ;  and  not  a  li;iiliii<'iil  <ii 
jitedge  ;  and  that,  as  the  right  nl  i.  .iiiii|i- 
tioii  was  not  cxerciNi'il  within  ilir  pn'- 
scrilx'd  time,  the  defendants  tlnn  I.cimiui' 
the  alisoliite  owners  of  the  seem  ii  !■  s.  But 
in  Kniow  v.  Klein,  7lt  Pa.  4S8,  llic  'l">:- 
trine  was  laid  down  tli.il  where  hv  .Hull- 
tract  the  vendee  leceives  a  chattij  wiiiih 
he  is  to  keep  for  a  certain  perinij,  aii'lif 
ill  that  time  he  jmys  for  it  tie-  siipii- 
lated  lirice,  he  is  to  hecome  the  owil'i,  lillt 
if  he  does  not  pay  the  price,  he  i->  li>  I'^'V 
for  its  use,  the  transaction  is  ,i  jpiilinint 
ami  not  a  sale,  the  right  of  pinpc  iiv  nut 
being  changed  until  the  nriee  is  pai'l.  I" 
this  case  a  team  was  let  by  tl.  pi  iintilfl" 
M.,  at  J5  weekly,  until  two  hiiielivii  smli 
jiayments  to  be  m.lde,  the  piopeltv  ill  tl'' 
mean  lime  to  belong  to  and  to  \f  in.inaii-'i 
by  the  plaintill',  who,  on  the  last  p;iymi'i)t, 
was  to  relin<|uish  his  title  in  tlie  piip|«'r;'' 
to  .M.  The  court  held  that  tie-  I'mi'TtV 
would  only  vest  in  M.  when  lln-  li'  fJ' 
meat  was  made.     Clark  v.  .lai  k,  "  W.i 


:liii 


PART  III.] 


BAILMENTS  DISTINGUISH KD. 


99 


|iliiiiitilT.s  and  the  purchaser,  uudcr  an  execution  against  Dittinar, 
uf  iiKitL'riuLs  furnished  to  Dittmur,  or  purchased  by  funds  received 

Ills  stock  of  li(|UorH  from  the  ilrfi'iidiiiitM, 
loi'  which  he  ^'avr  tlit'in  liis  note  ;  aiitl 
i'X|K'ii(|i'cl  ii)H)tit  ;$lloi)(if  Ills  own  iiioiiny 
ill  titling' ujitht'  biiililiii)<.  Tlicilt  ti'iidiiiitH, 
liaviii^  olitiiiiiol  a  juil;;iiu'iit  a^'aiiist  It., 
levied  on  the  stock,  tixttireH,  etc.  Thd 
|i|,iiiitill'>  chiiiiicd  the  owiiei-Hhip  therein. 
Oil  tile  trial  of  a  feigned  issue  in  tiie  Cotii- 
iiiuii  riea^,  the  court  instructed  tlie  jury 
tliat  if  they  found  that  the  |iro|ierty  <l<i* 
liveied  liy  the  iijainfilfs  to  H.  was  at  ii  fu- 
ture time  to  lie  sold  and  trilisferii'd  to 
liiiii,  if  lie  should  repay  to  thi'in  nn 
anioiint  ei|iial  to  the  value  of  the  property, 
that  was  a  liailineiit  ami  not  a  coiiditiiuial 
hale;  or  if  they  nlioiild  lilld  i).  received  tllti 
J^oods  Irolll  the  plailitllfs,  to  retain  them 
lor  a  dclinile  period,  to  lieconie  the  owner 
(it  them  il  he  paid  lor  them  during  that 
Jieiiod,  othiMWiM'  to  pay  for  tlii'ir  list', 
Jlieii  the  transai'tion  was  a  hailment,  and 
the  tith*  remained  in  the  plaiiitill's.  Tho 
jury  having'  found  lor  the  plaiiitill's,  tin; 
."Supreme  Court,  on  error,  sustained  tlu- 
instructions  and  the  liiidiii^',  and  also  held 
that  till'  wiitti'ii  contract  coiilil  not  Im; 
re;,'arded  as  a  sale  in  any  view  that  could 
be  taken  of  It.  Alter  a  reference  to  its 
oonti'nis,  they  said:  "  In  ail  this  there  is 
not  a  provision,  not  a  word,  lookini;  to  tliii 

rtcipli.sition    of  title    liy   Ii.  to  tile  propeity 

in  (|ue>ti(in  at  any  time  or  in  any  manner. 
'I'lie  title  which  is  already  in  the  plaintilFs 
remains  in  them,  and  cannot  lie  d.  vested 
by  the  execution  of  any  of  tlie  terms  of 
the  contract.  Itntli  in  furiii  and  iii  siili- 
.staiiee  the  contract  is  nothiii;;  Imt  a  bail- 
ment. The  cases  cited  for  the  defendants 
liave  no  analogy  to  this  because  thi'y  all 
contained  piovisioiis  by  which  a  passa;,'e 
of  the  title  was  provided  for,  but  here 
there  is  notliin;,' ol  the  kind.  We  cannot 
iios.-,ibly  say  that  this  instriiiiieiit  shall 
liave  tile  character  and  ell'ec  t  of  a  >ale, 
when  tbiie  is  no  piiit  of  it  whicli  c^ni  m 
any  evi'iit  fjiv''  a  ri^ht  of  punhaM',  oi  im- 
pose an  olili'jathm  of  .sale."  Iloii^ei  r. 
Kemp,  :i  I'a.  .St.  '2ii8,  l.esi,>r  r.  M.  Dow-dl, 
l.H  I'a.  St.  '.Il,  .Sneatbeii  r.tiriibbs,  SS  I'a. 
U7;  Chirk   r    .lack,  7  Watts,  :;7.''.;   Ib'iiry 

r     r.iltcrs (17     I'a.     ;i4l'>,      Wlieie    the 

property  passiMl,  see  .Stadtl'cld  r.  Ilunts- 
iiiaii,  '.ej  r.i.  .'i:t  ;  Hiiinswick,  &c.  Co,  r. 
Hoover,  ii'i  I'.i.  .Ins.  lioyiilon  f.  Isaacs,  10 
Weekly  Nol.  Cis.   1!HI. " 

In    Kant    r.    Kessler,    114    I'a.    tin:?,  no 

(|llestioii  .seems  to  have  been  raised  on  till! 
point  as  to  the  eU'ect  of  the  execution  otl 
the  "wines"  and  "lii|iiors,"  purchased  by 
It.  himself  from  the  defendants,  and  wliieh 
wi'ie  no  part  id'  the  stock  eonveyeil  by  thi! 
|ilaintiir»  to  It.     The  p(uiit  which  we  here 


S.  37.1  ;  l.chinli  Co.  V.  Fiel.l,  8  W.  &  .S. 
•j:','.;;  Ileiirv  '•.  Patterson,  (>7  I'.i.  Itftt  ; 
[t.,k(r  I'.  .Smith,  .IK  I'a.  4tilt.  Kiilow  r. 
Klnii,  7".'  I'a.  4s,s,  wasdistiii>{ui>lied  Ironi 
.\billiii  V.  .Malhiot,  H  .S.  &  I!.  'Jl  I.  on  the 
(Jleiil.d  tli.it  there  |Mj.s.sessioll  was  delivered 
to  the  Veleiie  ill  plirsualic)  of  a  s.i'ii- 
actually  made,  with  tiie  condition  addeil 
liiat  tlie  lilli-  to  the  chattels  soM  should 
rciiiain  iii  the  vendor  until  the  (mrcliase- 
iiKiiiiy  .>lii>iild  be  paid,  and  it  wa-  'aid,  as 
til  till'  credltols  of  the  vendee,  tll.lt  the 
|ire|«rty  li.id  ]ia>>ed.  In  the  one  ca-e  it 
wa^  lii'ld  ill. it  there  Was  a  .sale,  under 
wlilcli  the  title  to  the  chattel  pa>M'd  ;  ill 
the  (itlicr,  that  tlu'i'i!  was  no  tiaiisiiii.v-iion 
of  the  property  in  the  chattel.  Thus,  in 
Cliaiiilierl.oii  r.  Smith,  44  I'a.  4;J1,  where 
M.  reci'ivcd  liom  the  plaintil!  .in  ox-team, 
"to  kiepaiid  woik  ill  a  rea.ionable  farmer- 
like  iii.innei  "  fir  one  year,  the  te.im  to  1m^ 
thill  letimic'il  ;  lint  M.  haying  the  privi- 
li'^'c,  liy  paying' ■* III,  and  lej;al  interest,  at 
tlie  eX|iil.illiill  ol  the  year,  of  keeping  thu 
rattle  111  lore  the  expnalion  ol  the  ycai, 
aikI  witliiiul  payini,'  the  §lli,  M.  sold  the 
catllc.  The  Supreme  Court  of  I'eiinsyl- 
Vailia  held,   leVelMlltJ  the  jud^'inent  of  the 

Ciriiiit  Court,  that  the  property  in  the 
cultle  had  imt  passed  to  .St.,  and  that  the 
sail-  was  invalid.  They  said  :  "  Here  was 
ihi  I  initial  t  of  Side,  which  is  an  ai,'ieeinent 
(if  liiitli  p.irties  that  the  pio|M>ity  shall 
|a>^  Ihilli  one  III  the  othel  bir  a  coiisidera- 

tiiiii  ^ivcn  or  |ironiised  lo  tie  ;;iveii.     At 

most,  lllele  wa.^   an   .l^^reeinellt  to  sell  at    a 

futiiie  lime,  01  r.itlier  an  oiler  to  sell,  with 
tiiiii'  -liven  lor  its  acceptance.  The  trans- 
li-riil  piissession  also  was  not  in  juirsuance 
lit  a  sale.  M.'s  n^ht  to  tlie  possession 
(!!.»■  nut  of  the  letting,  therefore  no  false 
triiiil  was  jjiveii.  The  delivery  is  ae- 
ciiiiiitnl  liir  without  the  necessity  of 
iiltriliiitiii;,'  fraiiil,  ami  the  possession  of 
M.  Wa .  coiisisleiit  with  ownership  in  the 
lilaiiitlll." 

Sii  111  the  yer\  late  Pennsylvania  case 
(a.  II.  issti)  ,i|  k;i„t  I'.  Kessier,  114  I'a. 
•in:!,  «liiie  the  plaiiitill's  boiij^hl  stock, 
fixliires,  etc.,  for  a  house  of  entertainniiiit 
Mitiil  liy  It.,  lor  thi'  rental  of  which  the 
jiliinlills  were  sureties  ;  It.  contributing,' 
niiiliiii;;  til  the  business,  and  a^ieeiii)^  to 
i.ary  it  mi  in  the  name  id'  "  It.,  n^i'iit ,  " 
tl.i'  still  k,  lixtllies,  &c.,"tobe  the  sole 
|ir'iiKrtvaiiil  beloimiiin"  of  the  iilaintill's; 
II.  Ill  |i.iv  the  relit,  taxes,  and  "jas  bills, 
iilul  III  liiiy  finiii  the  plailltilfs  all  the  beer 
II"  ri'.|iiirid  at  $\n  per  barrel,  $'2  [M-r  barrel 
'if  wliiih,  beiii),'  ill  1'xees.s  of  the  liiarki't 
luii'i',  wiLi  to  be  credited  on  a  .iiidj{iiieiit 
givi'ii  by  B.  to  the  plaiiitilf.     it.  bought 


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COMMENTARIES  ON  SALES. 


[book  I. 


by  him  from  tho  plaintiffs.  It  was  contended  for  the  plaiiititT.s 
and  cunccded  by  tlio  cuurt  that  the  question  of  bailment  or  not  is 
deterniini'd  l)y  the  fact  whether  the  identical  article  delivered  tu 
the  numufacturer  is  to  bo  returned  to  the  party  making  tli*;  ud- 
vanee.*  Thus  where  logs  are  delivoi'ed  to  be  sawed  into  Ijounl.s 
or  leather  to  be  made  into  shoes,  rags  into  paper,  olives  into  (»il, 
grapes  into  wine,  wheat  into  flour,  if  the  product  of  the  identical 
articles  delivered  is  to  be  returned  to  the  original  owner  in  u  new 
fornj,  it  is  said  to  be  a  bailment,  and  tho  title  never  vests  in  tliu 
manufacturer.  If,  on  the  other  hand,  the  manufacturer  is  imt 
bound  to  return  the  same  wheat,  or  flour,  or  paper,  but  may  dc. 
liver  any  other  of  e(iual  value,  it  is  said  to  be  a  sale  or  a  loan,  and 
the  title  to  the  thing  delivered  vests  in  the  manufacturer.'^  The 
court  held  that  the  materials  delivered  Dittmar  were  in  his  actiuil 


iiiiikf,  was  iniiilo  by  tho  court  in  Morss  v. 
Stum-,  5  lliiil).  r>\ii,  bVJ.  Ill  tliis  c.isu, 
the  main  jioiiit  di'iudi'il  wa.s,  wlu.-ru  a  puiilar 
rcccivnl  Kooils  IVdiii  tho  |ilaiiitiir  lo  sull 
ami  ai.'i'omit  for  to  him,  or  ictiini  thu  .samu 
as  ^'ood  as  wlicii  taken,  with  intcii'st, 
thattliis  waa  a  bailiiiiMit  and  nut  a  salu  ; 
and  that  tlie  floods  weio  not  siilyct-'t  to 
an  t'xocutiiin  a^raiiist  tliu  |H.'illar  at  thu 
suit  of  a  third  ]>arty.  But,  as  tlic  |)c(llar 
had  rei'eived  a  hill  of  ^oods  from  thu 
plaintiir,  for  which  he  hail  {{ivm  his 
nuti-,  thu  court  Indd  that  thu  i|ncstioii 
should  liavo  l«'un  left  to  the  jury  whcthur 
any  of  thcsi!  wcro  anion;;  the  ^oods  [>ci/ud 
under  the  excnition;  ami,  if  so,  they  were 
properly  seizeil  as  thu  floods  of  the  pedlar, 
riiis  case,  on  thu  main  point,  was  distin- 
finished  from  Marsh  t;.  Wickhani,  H.lohns. 
187,  when!  then!  was  a  sale  of  tho  ;;oods, 
with  .1  privilef;u  of  return.  In  this  caso 
thu  dufuiidants  (the  vendues)  expressly 
agn'od  to  pay  a  iiameil  piicu  for  the  ^'oods, 
wliii'h  slioweil  a  sale,  lint,  in  Crosby  v, 
Thu  Delaware,  &c.  Canal  Co.,  11!>  N."  V. 
3;i4   (a.  U.    1»',K)),  wheie  parties  receivod 

foods,  aecomp.micd  with  an  account  or 
ill  of  panels,  in  thu  usual  form,  specify- 
ing thu  ijuaiitilies,  jiricu.s,  anil  deseriptioini 
of  till!  ;;ooils  furnislied,  as  thu  facts  left  it 
doubtful  whotlier  tho  j^onds  wen!  received 
as  n.  bailment  or  a  sale,  the  court  held  that 
this  was  a  i|uestii)n  to  lie  sulmiittud  to  tho 
jury,  and  unleretl  a  new  trial  for  that  pur- 
pose. I  n  .Moses  V.  Taylor,  (5  Mark.  (1).  C. ), 
25,5,  '2T.\,  it  was  held  (a.  D.  1888)  that  a 
delivery  or  loan  of  chattels,  with  tho  rij;ht 
of  the  bailee  to  appropriate  them  to  his 
own  use  and  pay  tho  value,  is  a  bailment 
coiivurtibl'j  into  a  sale  at  the  election  of 
thu  bailee;  and  that  on  the  bniloe  electing 
to  appn)pi'iatu  the  goods  to  his  own  use, 
assumpsit  for  goods  sold  and  delivered 
would  lie,  as  from  tho  time  of  the  election. 


Bayley  i;.  (jonldsmith,  I'oaku,  50;  I!i:iiir|ii 
V.  Nash,  1  M.  &  W.  .145.  See  ihoinl.v  i'. 
Co.xw.dl,  -2  U.  &  1'.  438;  Caflin  r.  Hi!l,  4 
Canii)b.  183;  Hunter  v.  Welsh,  1  Stark. 
'224  ;  Lyons  v.  I5arn.s,  2  Stark.  liU;  Stiiij.ly 
V.  Sanders,  5  H.  &  C.  ti28.  I'.ut,  wlu'ie 
bonds  wuru  received  from  thu  idaiiitilf,  liy 
thu  defendant,  "  to  bu  returned  nil  I. ill," 
and,  as  collateral  security,  thu  di  riini.iiit 
gavt!  his  notes  with  interest,  fur  llw 
amount  of  tho  boiid.s,  this  was  lu'ld  to  im 
but  a  bailment  of  tho  bonds,  and  nut  to 
givo  thu  defendant  any  electimi  tu  tii:it  it 
as  a  sale.  Moses  «.  Taylor,  6  M.u  k.  (i).r.) 
255.  See  Coijuaml  v.  VVulusc,  Iml  Mo. 
137  (A.I).  1S8!»);  Ihilkluy  v.  Amlnws, 
3!)  Conn.  70.  Where  there  is  the  iij;lil  of 
election,  as  the  statute  of  liinitaliiiii>  uiily 
runs  from  the  time  the  right  nf  .uiiu'i  no- 
criiu.s,  it  Would  only  begin  to  run  at  the 
tiinu  the  right  of  election  was  exiiviseil; 
and  wheiu  there  is  no  right  of  ilr. timi, 
and  a  con  version,  tho  action  nt  troviT 
would  only  accrue  at  the  time  ul  tin'  i  hh- 
version.  .See  l,ovcll  v.  Martin,  I  Tiiiiit. 
7UU  ;  Hristol  r.  Burt,  7  .luhiis.  2.'. I;  M'w 
V.  Taylor,  ti  Mark.  255;  Cole  c,  lliWi, 
7<iiir&,J.  20;  Callis  r.  Tolson,  ti  <!ill  i'. 
80;  I'lantuis'  Bank  f.  Farmers'  ISnnk.  !< 
(iill  &  J.  449;  Abell  r.  Ilirri.s,  11  Cilli 
.1.  3(37  ;  Fell's  I'oiiit  Sav.  Inst.  e.  Wiriluu, 
18  Md.  320;  Boughton  v.  Flint,  74  N.  V. 
481;  Kano  v.  Cook,  8  Cat.  411';  liiii'ii 
Bank  v.  Phinters'  Bank.  !»  C.ill  i  ■'.  4-11: 
Farmers*  Bank  v.  IManters'  Bunk,  lo  t'lil 

6  J.  441.  And  see  iin/r  ]t.  14,  ii.  I.  Aiil 
see,  also,  ayitf  pi>.  24-27,  and  notes. 

'  See  ante,  p.  14,  n.  1. 

^  I'ien'o  V.  Schunck,  3  Hill  (X.  V.>,  -3; 
Norton  V.  Woodruli;  2  N.  Y.  15;i;  M  ill'^.v 
I'.  Willis,  4  N.  Y.  70;  Foster  r.  rittilii.m', 

7  N.  Y.  433;  South  Australian  liiMiiami' 
Co.  V.  Randall,  L.  H.  3  P.  C.  101;  RiikiT 
V.  Roberts,  8  Me.  101;  Smith  v.  .Ioiii;»,  i 


(hi   '"•.'. 


PART  III.] 


BAILMENTS  DIRTTNGUISHED. 


101 


posscBsion  ami  under  liis  absoluto  control ;  tliat  there  was  noth- 
inir  in  tlie  agreement  that  the  ideutical  materials  tlellvcred  to  him 
hIioiiM  I)c  used  in  the  manufacture  of  the  tlualin^  and  nothing?  to 
|HTViiit  an  exchange  by  Dittmar  for  other  materials,  if  he  found 
aiiv  of  the  articles  to  be  unsuitable,  or  if  he  found  that  he  had  too 
imich  of  one  kind  and  too  little  of  another,  acting  honestly  in  the 
iiittM est  of  both  parties  ;  the  case  being  rpiite  dilTerent  from  the 
siiiirlt'  mechanical  transaction  of  turning  a  specilic  set  of  h)gs  into 
boiirds,  or  a  specilic  lot  of  wheat  into  tlour,  where  there  is  no  room 
for  jiidirinont  or  discretion.  The  goods  in  Hpcrifi  and  the  money 
supplied  became  the  property  of  Dittmar,  for  which  he  was  lial)le 
to  iicctmnt  to  the  plaintiIVs  us  for  so  much  in  value  to  be  charged 
n?a'mst  Uio  manufacturetl  goods  which  were  to  be  consigned  to 
the  pliiiiitirt's.  The  goods,  therefore,  were  subject  to  an  execution 
against  Dittmar.' 

The  distinction  between  a  sale  and  a  bailment  is,  of  course,  im- 
portant. As  but  a  special  property  is  vested  in  the  bailee,  his  rights 
ami  thities  with  respect  to  the  property  bailed  with  him  are  neces- 
sarily esseiitially  ditl'erent  from  those  of  an  owner  of  the  property 
undor  a  saL'.  The  following  cases  sulliciently  illustrate  thig 
jioiiit :  — 

S.  A'  Co.  were  the  owners  of  the  corn-exchange  elevator  of  Os- 
wego, N.  Y.,  in  which  they  were  engaged  in  the  general  business 
of  elevating  and  storing  grain  for  the  jtublic,  and  were  also  large 
dealers  in  grain  on  their  own  account.  They  sent  orders  to  M.  & 
Co.,  oonnuission  merchants  in  Milwaukee,  to  purchase  for  them 
twoeargoes  of  wheat,  and  to  draw  on  them  for  the  purchase-money 
against  each  cargo.  M.  &  Co.  bought  and  shipped  the  cargoes, 
and  drew  for  the  purchase-money  on  S,  «fc  Co.,  part  in  sight-drafts, 
and  part  in  time-drafts,  selling  tliese  drafts  to  the  plaintiffs;  the 
bills  (»1  lading  being  made  in  favor  of  the  plaintiffs.  The  plain- 
titls  lorwarded  the  drafts  with  the  bills  of  lading  to  the  defendants, 
and  instructed  them  to  deliver  the  cargoes  to  S.  A'  Co.  if  the  drafts 
were  paid,  but  if  not  paid,  to  hold  the  cargoes  and  advise  by  tele- 
graph. S.  &  Co.  paid  the  sight-drafts  and  accepted  the  time- 
drafts.  On  the  arrival  of  the  cargoes  at  Oswego,  the  cashier  of 
the  defendants  indorsed  the  bill  of  lading,  making  the  cargoes 
deliverable  to  the  corn-exc'iange  elevator,  for  account  of  the  ])lain- 

Cnw.  32'*;  ITvile  r.  Cookson,  21  Bnrb.  92;  'See    also   Dittmar   v.    Norman,    118 

Kiiiy  c.  llmiipliroys,  10  Pa.  St.  217;  Ste-  Mass.  319,  where  the  (lucstioii  arose  uinlor 

veils  t'.  I{rii,'Ks.   5  Pick.    177;    Denny  v.  the  same  ogreement,  ami  where  the  .Su- 

Calidt,  ti  Met.   82;   Judson  v.  Adams,  8  preme  Court  of  Massachusetts  hehl,  as  in 

Ciisli.  ",,',(');  Sclienk  v.  Saunders,  13  Gray,  tliis  ca.se,  that  the  transaction  was  a  sale 

37;  Maiistield  v.  Converse,  8  Allen,  182;  and  not  a  bailment. 
Buttfini  V.  Merry,  3  Mason,  478. 


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COMMENTARIES  ON  SALES. 


[book  I. 


tiffs,  subject  to  the  order  of  the  defendants.  S.  &  Co.,  sold  and 
shipped  the  wheat  after  it  had  been  put  in  their  elevator,  and 
shortly  thereafter  failed.  The  time-drafts  not  having  been  paid, 
the  plaintiffs  sued  the  defendants  to  recover  the  loss  on  the  drafts, 
caused  by  the  delivery  of  the  wheat  to  S.  &  Co.  without  the  drafts 
having  been  paid.  The  jury,  by  direction  of  the  court,  having 
found  for  the  defendants,  the  United  States  Supreme  Court,  on 
error,  held^  that  the  defendants,  having  undertaken  the  busi- 
ness for  plaintiffs,  became  their  agents,  and  as  such  were  bound 
to  use  due  care  and  diligence  in  performing  the  task  which  tliey 
had  undertaken ;  that  whether  such  care  and  diligence  had  been 
used  was  a  question  for  the  jury,  and  if  the  jury  should  find  tliat 
the  delivery  to  the  corn-exchange  elevator,  of  which  S.  &  Co. 
were  the  proprietors,  when  the  wheat  might  have  been  delivered 
to  another  elevator  without  complicating  the  question  of  own- 
ership with  that  of  bailment,  and  which  would  have  prevented 
the  loss,  and  would  not  have  involved  a  departure  from  their 
instructions,  was  negligence,  then  the  defendants  would  be  re- 
sponsible to  the  plaintiffs  for  the  amount  of  the  unpaid  drafts, 
less  any  sum  actually  recovered  from  the  parties  who  bouglit 
or  received  the  wheat  from  S.  &  Co.  A  new  trial  was  ordered 
accordingly. 

Tobacco  was  in  the  hands  of  the  defendants,  commission  mer- 
chants, as  bailees  for  G.  The  tobacco  was  seized  for  breach  of 
the  revenue  laws.  As  it  deteriorated  by  keeping,  by  an  agreement 
between  the  collector  of  internal  revenue  and  the  bailees,  the  to- 
bacco was  sold  by  the  latter,  the  proceeds  thereof  to  be  retained 
by  them  until  a  suit  which  was  brought  to  have  the  tobacco  con- 
demned, had  been  decided.  The  suit  was  defended  by  C,  and 
was  dismissed  by  the  district  attorney  after  plea  filed.  Tlie  de- 
fendants retained  the  money  for  nearly  four  years,  when,  no  other 
proceedings  having  been  instituted,  and  no  demand  made  on  them, 
they  paid  over  the  money  to  G.  In  an  action  against  them  for  the 
money,  the  Circuit  Court  held  that  they  ,vere  liable.  But  the 
United  States  Supreme  Court  reversed  this  decision,  and  hchl  tliat 
as  they  held  the  money,  not  as  principals,  but  as  bailees,  thov  had 
but  performed  their  duty  in  paying  the  money  over,  after  having 
held  it  for  a  reasonable  time  without  further  proee'jdings  having 
been  taken  in  the  matter,  or  demand  made  upon  thcm.^ 

The  kind  of  bailment  known  as  a  pledge,  accompanied  as  it  very 
generally  is  by  an  express  or  implied  power  of  sale,  involves  in 
some  respects  the  rights,  powers,  and  duties  of  an  absolute  owner 


1  National  Bank  v.  City  Bank,   113 
U.  S.  668. 


386. 


a  Pettigrew  v.  United  States,  97  U.  S. 


Jit' 


PART  III.] 


BAILMENTS  DISTINGDI3HE'>. 


103 


mer- 

acli  o{ 

cmcnt 
ic  to- 
ained 
con- 
and 
le  de- 
other 
them, 
tor  the 
lit  the 
Id  that 
oy  had 
laving 
liavinj 

lit  very 
Ives  in 
[owner 

b  u.  s, 


of  the  property,  yet  there  are  still  very  marked  distinctions  exist- 
in'^  between  the  two.  The  question  will  be  found  to  be  consid- 
ered in  a  case,  under  the  Bills  of  Lading  Act.  On  appeal  to  the 
House  of  Lords,^  where  the  judgment  of  the  Court  of  Appeals  in 
the  case  was  reversed,  the  House  of  Lords  held  that  the  mere 
indorsement  and  delivery  of  a  bill  of  lading  by  way  of  pledge 
for  a  loan,  does  not  pass  "  the  property  in  the  goods  "  to  the  in- 
dorsee, so  as  to  transfer  to  him  all  liabilities  in  respect  of  the 
goods  within  the  meaning  of  the  Bills  of  Lading  Act,  so  as  to 
make  him  liable  in  an  action  by  the  shipowner  for  the  freight. 
After  a  most  elaborate  examination  of  the  authorities  by  Lord 
Selborne,  that  able  judge  reached  the  following  conclusion  : 
"  Upon  the  whole,  I  cannot  dissemble  that  this  case  appears  to  me 
attended  with  some  considerable  difficulties.  But  these  diflRculties 
are  mainly  technical,  arising  out  of  a  comparison  of  the  language 
of  the  statute  with  various  and  not  always  consistent  forms  of 
expression  found  in  authorities  not  decided  with  a  view  to  any 
such  consequences  as  those  which  the  statute  would  produce. 
They  deal  with  questions  between  unpaid  vendors  of  goods  com- 
prised in  bills  of  lading  and  bona  fide  indorsees  of  the  same  bills 
of  lading  for  value,  or  between  competing  and  adverse  claimants 
to  priority  as  bona  fide  holders  for  value  of  the  bills  of  lading 
themselves.  The  statute,  on  the  other  hand,  deals  with  questions 
between  shippers  and  indorsees  of  bills  of  lading  claiming  under 
them,  and  between  indorsees  and  shipowners.  The  preponder- 
ance of  principle  and  reason  appears  to  me  to  be  against  the  prop- 
osition that,  as  between  those  parties,  it  can  have  been  intended 
by,  or  can  be  the  effect  of  the  statute,  to  make  the  creditor  of  the 
shipper  liable  (in  effect)  as  his  surety  to  the  shipowner  (with 
whom  he  Avas  never  brought  in  contract)  by  reason  only  of  the 
deposit  with  him  by  way  of  security  of  a  bill  of  lading  indorsed 
in  blank ;  his  right  under  that  deposit  being  (whether  at  law  or 
in  equity)  special  and  not  general,  and  the  shipper  retaining 
(wlicthcr  at  law  or  in  equity)  the  real  and  substantial  property 
in  tlie  goods,  subject  to  the  security.  It  had  not,  until  the  pres- 
ent case,  been  directly  or  indirectly  determined  by  any  authority 
that  such  is  the  effect  of  the  statute."  ^ 


1  SpwcU  v.  Burdick,  10  Ap.  Cas.  74. 

2  Lord  Fitzgerald,  in  a  very  few 
words,  sums  up  the  whole  argument  in 
the  case  thus:  "Field,  J.,  in  the  court 
below,  caino  to  the  conclusion  that  the 
traiisiictinu  under  investigation  was  in- 
tcnlod  by  the  parties  to  operate  as  a 
pledge  only.  There  can  be  no  doubt  that 
the  inference  thus  drawn  by  the  learned 


judge  was  correct  in  fact.  It  seems  to 
follow  that  the  pledf^ees  acquired  a  special 
property  in  the  goods,  witli  a  right  to  take 
actual  possession,  should  it  be  necessary  to 
do  so  for  their  protection  or  for  the  reali- 
zation of  their  security.  They  ac(|uired 
no  more,  and  subject  thereto  the  general 
property  remained  in  the  pledgor.  I  am 
of  opinion  that  the  delivery  of  the  ia- 


•  I J ; 


r:i' 


H 


V  i   '  'I 


■!l 


I 


I  i  :it.  .1 


j'i  ■  ■; 


R'  ¥>r^ii 


104 


COMMENTARIES  ON  SALES. 


[book  I, 


The  following  are  also  instructive  cases  in  the  law  of  pledge,  a3 
distinguished  from  the  law  of  sale,  covering  all  the  points  neces- 
sary for  our  purposes.  For  a  fuller  consideration  of  the  law- 
relating  to  pledges,  the  student  is  referred  to  the  text-books  on 
bailments  and  contracts. 

A  holder  of  scrip  certificates  for  shares  borrowed  of  the  defend- 
ant a  sum  of  money  on  his  own  promissory  note,  payable  on  de- 
mand, and  on  the  security  of  the  shares,  and  deposited  with  the 
defendant  the  scrip  certificates.  He  afterwards  became  bank- 
rupt, and  the  defendant,  without  demand  and  without  notice,  sold 
ten  of  the  fifteen  shares  to  repay  himself  his  debt.  The  creditor's 
assignee,  without  making  any  tender  of  the  amount  of  the  debt, 
brought  an  action  of  trover  against  the  defendant  to  recover  the 
value  of  the  shares  The  Court  of  Excliequer  Chamber  held. 
affirming  the  decision  of  the  Court  of  Exchequer,  that,  even  as- 
suming the  sale  to  be  wrongful,  the  immediate  right  to  the  j)osses- 
sion  of  the  shares  was  not,  by  the  sale,  revested  in  the  plaintiff, 
and  that  he  could  not  maintain  trover,  either  for  the  whole  value 
of  the  shares  or  for  nominal  damages.^ 


doi'sed  bill  of  ladinjj  to  the  defendants, 
as  a  security  for  their  advance,  did  not, 
by  necessary  iini)lication,  transfer  l/ic  prop- 
erty in  tlie  goods  to  the  defendants.  Tiiey 
were  not,  therefore,  '  indorsees  of  a  bill  of 
lading  to  whom  the  proi)erty  in  the  goods 
passed  by  reason  of  the  indorsement,'  so  as 
to  make  them  without  more  'subject  to  the 
same  liabilities  in  respect  of  such  goods  as 
if  the  contract  contained  in  the  bill  of 
lading  had  been  made  with  them.'  "  Jbid., 
at  p.  105. 

1  In  following  the  decision  of  the 
Queen's  IJench  in  Donald  v.  Suckling, 
L.  R.  1  Q.  B.  58.5,  the  law  is  thus  suc- 
cinctly laid  down  by  the  court:  "There 
are  three  kinds  of  security  :  the  first, 
a  simple  lien ;  the  second,  n  mortgage, 
passing  the  i)roperty  out  and  out ;  the 
third,  a  security  intermediate  between  a 
lien  and  a  mortgage,  viz.,  a  pledge,  where, 
by  contract,  a  deposit  of  goods  is  made  a 
security  for  a  debt,  and  the  right  to  the 
property  vests  in  the  pledi.^ce  as  far  as  is 
necessary  to  secure  the  debt.  It  is  true 
the  pledgor  has  such  a  property  in  the 
article  pledged  as  he  can  convey  to  a  third 
person,  but  he  has  no  right  to  the  goods 
without  paying  olf  the  debt,  and  until  the 
debt  is  paid  otf  the  pleilgee  has  the  whole 
present  interest.  If  he  deals  with  it  in  a 
manner  other  than  is  allowed  by  law  for 
the  payment  of  his  debt,  then,  in  so  far  as 
by  disposing  of  the  reversionary  interest 
of  the  pledgor  he  causes  to  the  pledgor 
any  difficulty  in  obtaining  possession  of 


the  i)ledge  on  payment  o(  the  sum  due, 
and  thereby  does  him  any  real  daiiw^e, 
he  commits  a  legal  wrong  against  tlie 
pledgor.  But  it  is  a  contradiction  iu 
fact,  and  would  be  to  call  a  thing  lliat 
which  it  is  not,  to  say  that  the  pledf;ee 
consents  by  his  act  to  revest  in  the 
pledgor  the  immediate  interest  or  right  in 
the  pledge  which,  by  the  bargain,  is  out 
of  the  pledgor  and  in  the  pledgee.  'I'liere- 
fore,  for  any  such  wrong  an  action  of 
trover  or  detinue,  each  of  which  asHiimes 
an  immediate  right  to  possession  in  the 
])laintitf,  is  not  maintainable,  for  that 
right  clearly  is  not  in  the  plaint  ill'." 
Halliday  v.  Holgate,  L.  R.  3  E.x.  '299, 
302. 

In  Coggs  V.  Bernard,  2  Ld.  Ray  in.  at 
p.  916,  Holt,  C.  J.,  says  :  "  As  to  tlie  prop- 
erty the  pawnee  ha.s  in  the  ])awn  or  I'hilge, 
lie  has  a  special  property,  for  the  ]);i\vii  is 
a  securing  to  the  pawnee  that  he  sliiiU  he 
repaid  his  debt,  and  to  compel  the  pawnor 
to  pay  him."  See  Kyall  v.  UoIIe,  1  Atk. 
167  ;  Reeves  i>.  Capper,  5  Bing.  N.  C.  140. 
In  Bell's  Commentaries,  B.  2,  eh.  li,  §2, 
it  is  said  :  "  By  pledge,  a  movable  subject, 
or  the  title  deed,  vouchers  or  muniiiionts 
of  a  debt  or  jus  incorporalc  are  didiveivdto 
the  creditor,  in  security  of  debt,  to  iciiiiiir. 
with  him,  and  be  detained  in  jiosscssion 
till  the  debtor  shall  redeem  them  ;  and,  if 
necessary,  to  be  sold  by  judicial  autliority 
for  satisfaction  of  the  debt  ;  thi-  civditor 
engaging  to  restore  the  thing  iih'ilui'd 
when  the  debt  shall  be  paid."     In  Donald 


PART  III.] 


BAILMENTS  DISTINGUISHED. 


105 


A  bailee  of  goods  who  holds  them  as  a  pledge  has  a  special 
property  which  can  bo  sold  and  assigned.  The  assignee  in  such 
cases  becomes  invested  with  all  the  legal  rights  which  belonged 
to  the  assignor.  Such  is  the  rule  of  the  common  law,  and  it  has 
subsiscud  from  an  early  period.^  The  law  was  so  applied  by  the 
United  States  Supreme  Court  iu  the  case  of  the  sale  and  assign- 
ment of  gold  certificates.^ 


V.  Suckling,  L.  U-  1  Q-  B-  585,  A.  depos- 
itwl  (Irlifiiturus  with  J5.  as  .sfciirity  for  tlie 
paynii'iit,  at  maturity,  of  a  bill  t'liiioi'sed 
by  A.  and  (liscoimtcd  by  B.,  on  the  aj^ive- 
iiunt  that  B.  should  have  |K)wer  to  sell  or 
othii'wisi'  dis])(is('  of  the  dcbt'iiturt's  if  the 
bill  sliould  not  bu  [laid  when  due.  lielorc 
tin' maturity  of  tiie  bill,  B.  deposit '(l  the 
dulicntures  with  C,  to  be  kept  by  ii.ni  as 
a  security  until  the  repayment  of  a  loan 
from  ('.  to  B.  larger  than  the  amount  of 
the  bill.  The  bill  was  dishonored,  and 
while  it  still  remained  unpaid,  A.  brought 
(li'tinue  a_i;ainst  C.  for  the  debentures.  It 
was  held  that  the  repledge  by  B.  to  C.  ditl 
not  jiut  an  end  to  the  eontract  of  pledge 
between  ,V.  and  B.,  an<l  B.'s  interest  and 
right  of  detainer  under  it  ;  ami  that  A., 
therefore,  eould  not  maintain  detinue  with- 
out having  paid  or  tendered  the  amount  of 
the  bill.  The  (piestion  raised  by  this  (;ase 
is,  whether  a  pawnee  of  debentures,  depos- 
ited with  him  as  a  security  for  the  due 
[laynieiit  of  money  at  a  certain  time,  does, 
by  re|iledging  such  debentures,  and  depos- 
itinj;  them  with  a  third  person  as  a  secur- 
ity lor  a  larger  amount,  before  any  default 
ill  jiaymeiit  by  the  pawnor,  make  void  the 
contract  ui)on  which  they  were  deposited 
with  the  pawnee,  so  as  to  vest  in  the 
pawnor  an  immediate  right  to  the  posses- 
sion tlien'of,  notwithstanding  that  the  debt 
due  by  him  to  the  original  pawnee  remains 
uniwid.  Although  there  are  dicf.a  other- 
wise, we  think  there  is  no  question  that 
Donald  V.  Suckling,  I..  U.  1  Q.  B.  585, 
was  well  decided.  The  true  principle 
would  seem  to  be  that,  although  a  [iledgee 
cannot  confer  upon  any  third  i)ersoii  a 
better  title  or  a  greater  interest  than  he 
Iioss<'sses,  yet,  if  nevertheless  he  does 
pli'ilge  the  goods  to  a  third  person  for  a 
greater  interest  than  he  possesses,  such  an 
act  does  not  annihilate  the  contract  of 
pledge  between  himself  and  the  pawnor  ; 
out  till'  transaction  is  simply  inopiira- 
tive  as  against  the  original  pawnor,  who, 
upon  tender  of  the  sura  secured,  imme- 
diately becomes  entitled  to  the  possession 
of  the  goods,  and  can  recover  in  an  action 
for  any  special  damage  which  he  may  have 
sustained  by  reason  of  the  act  of  the 
iwwnee  in  repledging  the  goods.  Per 
Mellor,  J.,  in  Donald  r.  Suckling,  1  Q.  B., 


at  p.  610.  A  pledge  is  distinguished  from 
a  mere  lien,  inasmuch  as  this  latter  is  a 
mere  personal  right  of  detention.  In 
Uaubigny  v.  Uuval,  5  T.  11.  at  p.  606,  the 
case  was  put  on  the  ground  that  a  lien  is 
a  personal  right  and  cannot  be  transferred 
to  another.  In  Johnson  v.  Stear,  15  C  1}. 
N.  s.  330,  goods,  which  had  been  jiledged 
as  security  for  the  payment  of  a  bill  of 
exchange,  having  been  sold  before  the 
falling  due  of  the  bill,  it  was  held,  in  an 
action  of  trover  to  recover  the  goods,  that, 
although  the  owner  was  entitled  to  main- 
tain an  action  against  the  pawnee  for  a 
hrcach  of  contract  in  parting  with  the 
goods,  yet  that  the  contract  itself  was 
not  put  an  end  to  by  the  tortious  dealing 
with  the  goods  by  the  pawnee,  so  as  to 
entitle  the  owner  to  bring  an  action  to 
recover  the  goods  as  if  the  contract  had 
never  existed.  For  further  authorities  see 
Jarvis  v.  Rogers,  15  Mass.  389  ;  Ibid.  13 
Mass.  107;  ';..tcliir  v.  Davis,  Yelv.  178; 
Demainbray  r.  Metcalfe,  2  Vern.  691,  698  ; 
McCombie  v.  Davies,  7  Kast,  6  ;  Paterson 
J.  Tash,  2  Str.  1178  ;  Ex  parte  Deeze,  1 
Atk.  228  ;  Lee  v.  Atkinson,  Yelv.  172  ; 
Bloxam  v.  Sanders,  4  B.  &  C.  941  ;  De 
Bouchot  .  Goldsinid,  5  Ves.  211  ;  Hartop 
V.  Hoare,  3  Atk.  52  ;  Pigot  v.  Cubley, 
15  C.  B.  N.  s.  701  ;  Chinery  v.  Viall, 
5  H.  &  N.  288  ;  Brierly  v.  Kendall,  17 
Q.  B.  937  ;  Peters  v.  Hayward,  Cro.  Jac. 
682;  Legg  v.  Kvans,  6  M.  &  W.  36; 
Potharier  v.  Dawson,  Holt  N.  P.  385  ; 
Milgate  v.  Kebble,  3  M.  &  (J.  100  ;  Fenn 
V.  iiittleston,  7  Ex.  152  ;  Cireen  i;.  Farmer, 
4  Burr.  2214. 

1  Mores  V.  Carham,  Owen  (K.  B.), 
123;  Anon.,  2  Salk.  .'.22;  Coggs  v.  Ber- 
nard, 3  Salk.  268  ;  Wiiitaker  i".  Sumner, 
20  Pick.  399,  405;  Thompson  v.  Patrick, 
4  Watts,  415. 

'^  Merchants'  Bank  v.  State  Bank,  10 
Wall.  604,  643. 

The  law  as  decided  in  the  recent  cases 
of  Donald  V.  Suckling,  L.  It.  1  Q.  B.  185, 
and  Halliday  v.  Holgate,  L.  R.  3  Ex.  299, 
is  not  at  all  different  from  the  law  as  laid 
down  in  the  old  cases  we  have  cited  trom 
Owen  and  Salkeld.  In  Thompson  v.  Pat- 
rick,  4  Watts,  415,  in  an  action  of  trover 
for  the  value  of  a  sleigh  and  harness,  the 
court,  following  these  old  cases,  then  laid 


fm 


n  \ 


:    I 
11 


$ 
IS  i 

liil 


ill 


106 


COMMENTARIES   ON   SALES. 


[book  I. 


h>    \ 


On  the  principle  that  a  power  to  sell  does  not  include  a  power 
to  pledge,  where  a  power  of  attorney  gave  to  the  holders  author- 
ity "  for  the  purposes  aforesaid  to  sign  for  mc,  and  in  my  name, 
and  on  my  behalf,  any  and  every  contract  or  agreement,  accept- 
ance, or  other  document ; "  the  purpose  aforesaid  being  "  from 
time  to  time  to  negotiate,  make  sale,  dispose  of,  assign,  and 
transfer "  government  promissory  notes,  and  "  to  contract  for, 
purchase,  and  accept  the  transfer  of  the  same  ;  "  the  privy  coun- 
cil held,  that  upon  the  true  construction  of  this  power,  the  hold- 
ers were  authorized  to  sell  or  purchase  such  notes,  but  not  to 
pledge  thcm.^ 

Where  there  is  a  power  by  law  to  sell,  a  purchaser  may  obtain 
from  the  vendor,  even  as  against  the  true  owner,  a  good  title,  but 
that  cannot  extend  by  implication  to  a  pledge. 

Barrow  was  a  leather  merchant  in  London ;  Bonncll  was  a  tan- 
ner in  Canada.  Barrow  agreed  to  pay  Bonncll  lid.  per  pound  for 
every  hide  tanned  by  Bonnell  in  the  mode  of  the  country,  and 
Bonncll  was  to  procure  freight  and  send  back  the  hides.  Barrow- 
sent  out  a  large  number  of  the  hides ;  they  were  tanned  and 
freight  was  procured  for  them ;  but  in  the  mean  time  Bonncll  had 
obtained  from  the  Toronto  Bank  advances  on  his  own  account 
on  bills,  and  hypothecated  the  hides  to  the  bankers  as  secu- 
rity for  such  advances,  engaging  to  hand  over  to  them  the  bills 
of  lading  if  his  bills  of  exchange  were  not  duly  honored.  They 
were  not  duly  honored,  and  the  bankers  (who  had  acted  in  entire 


down  the  law  substantially  as  it  has  been 
done  in  the  late  cases  named,  tluis  ;  "  As 
a  pawnor  has  a  special  property  in  the 
thing  pawueJ,  he  may  assign  it ;  and  his 
assignee  may  consequently  assert  his  title 
to  it  against  the  owner,  or  one  standing  in 
his  place.  He  may  even  use  the  pawn, 
provided  it  be  not  the  worse  tor  it,  if  tlie 
keeping  of  it  be  a  charge  to  him  ;  in  re- 
compense of  which  he  may,  for  instance, 
milk  a  cow  or  ride  a  horse.  But  though 
it  be  not  the  worse  for  it,  he  can  use  it 
but  at  his  peril  ;  for  a  pawn  is  in  the 
nature  of  a  deposit,  and,  in  the  case  indi- 
cated, the  loss  of  it  is  attributable  to  the 
wearing  of  it,  which  put  it  in  the  way  of 
danger.  He  is  consequently  answerable 
for  damage  occasioned  by  his  use  of  it. 
But  though  he  use  it  even  tortiously  he  is 
answerable  for  the  con3e([uences  but  by 
action."     His  lien  still  remains  intact. 

1  Jonmenjoy  Coondoo  v.  Watson,  9  Ap. 
Cas.  561.  In  the  case  of  the  Bank  of  Ben- 
gal V.  Macleod,  5  Moo.  Ind.  Ap.  1 ;  7  Moo.  P. 
C.  35,  under  very  similar  language,  the  con- 
struction was  otherwise.  But  the  two  cases 
are  perfectly  reconcilable  on  the  ground  that 
the  language  in  the  two  cases,  coustrued 


with  the  context  in  the  respective  cases, 
gave  an  authority  in  the  one  case  that  was 
not  created  in  the  other.  See  I'urtlicr, 
Bank  of  Bengal  v.  Fagan,  5  Moo.  liid.  Ap. 
27  ;  De  Bouchot  v.  Ooldsniid,  5  Vcs.  211 ; 
Wilson  V.  Moore,  1  M.  &  K.  337  ;  Irllaiid 
V.  Livingstone,  L.  R.  5  H.  L.  395  ;  Ta\lor 
V.  Kymer,  3  B.  &  Ad.  320  ;  Atwood  v. 
Jlullings,  7  B.  &  C.  278  ;  Goodwin  i-. 
Roberts,  1  App.  Cas.  476  ;  Glyn  v.  Baker, 
13  East,  509.  If  an  agent  to  whom  goods 
are  intrusted  for  a  particular  ])uriinse, 
make  sale  of  the  goods  in  a  manner  or  to 
a  person  not  within  the  scope  of  liis  au- 
thority, the  principal  may  disatthni  the 
sale,  and  recover  the  goods  of  the  vi'iidce. 
Peters  v.  Ballastier,  3  Pick.  495  ;  Wilkin- 
son V.  King,  2  Campb.  335 ;  Bariiit;  v. 
Corrie,  2  B.  &  Aid.  137  ;  McCoinbie  v. 
Davies,  6  East,  538  ;  7  East,  7.  Hut  a 
principal  is  bound  by  the  act  of  liis  aj^cnt 
m  disposing  of  his  property  where  the  lat- 
ter is  Furnished  with  tlie  external  indim 
of  right  to  dispose  of  it,  notwithstaiidin;? 
that  he  may  have  deviated  from  the  secret 
instructions  of  his  principal.  Comniorcial 
Bank  of  Buffalo  v.  Kortright,  22  V  '  i 
343. 


j'lidce. 
[ilkin- 
Ins^  I'- 
ll lie  V. 
luit  a 
la;,'<'nt 
L'kit- 

IsflTCt 

lorcial 
■i 


PART  III.] 


BAILMENTS  DISTINGUISHED. 


107 


ignorance  of  the  transactions  between  Barrow  and  RonncU) 
claimed  to  retain  the  bills  of  lading  and  the  hides  until  their  de- 
mands were  satisfied.  On  the  trial,  Lindley,  J.,  held  that  Bonnell 
was  not  an  agent  within  the  English  Factors  Act  nor  within  a 
similar  act  in  the  Province  of  Quebec,  but  that  as  a  pledge  by  the 
apparent  owner  of  the  goods  under  the  law  of  that  province,  for 
valuable  consideration,  the  defendants  (the  bankers)  were  entitled 
to  the  goods.  The  Common  Pleas  division  sustained  this  decision, 
which  was  reversed  by  the  Court  of  Api)eal.  On  appeal,  this 
decision  was  affirmed  by  the  House  of  Lords,  which  held  that 
neither  under  the  English  Act  nor  the  Canadian  Act  had  one  in 
the  j)Osition  of  Bonnell  the  power  by  pledging  to  pass  the  prop- 
erty in  the  goods,  which  he  could  not  under  the  circumstances 
of  this  case  have  done  by  a  sale.^ 

In  an  action  by  the  pledgor  against  a  bona  fide  purchaser  of 
property  pledged,  it  was  held  that  the  action  could  not  be  main- 
tained where  there  had  been  no  payment  to  the  purchaser,  or  ten- 
der of  the  amount  due  by  the  pledgor  on  the  pledge.  A  tender 
to  the  second  pledgee  of  the  amount  due  from  the  first  pledgor  to 
the  first  pledgee  extinguishes  ipso  facto  the  title  of  the  second 
j)lc(]gee ;  but  it  is  well  settled  that  there  can  be  no  recovery 
against  him  without  tender  of  payment.^ 

Possession  is  of  the  essence  of  a  pledge,  and  without  it,  either 
actual  or  constructive,  it  cannot  be  supported  as  against  third 
persons.^ 

A  special  property  may  be  vested  in  another  than  the  owner  of 
the  general  property  without  delivery  of  the  personal  projjcrty  by 
an  assignment  of  the  indicia  of  ownershii)  of  the  prop'^rty,  as  a 
bill  of  lading  by  way  of  security.  Jenkyns  v.  Brown  *  is  an  in- 
stance of  this  kind.  There  K.  purchased  corn  at  New  Orleans  for 
the  plaintiff,  a  London  merchant,  whose  agent  K.  was.  The  pur- 
chase was  made  with  K.'s  money  ;  and  K.  drew  for  the  amount 
upon  the  plaintiff,  the  bill  being  in  its  body  expressed  to  be 
on  account  of  the  corn.  K.  sold  the  bill  to  the  defendant  at  New 
Orleans,  and  at  the  same  time  handed  the  defendant  a  bill  of  lad- 


'  city  Hank  v.  Barrow,  5  Ap.  Cas.  664. 
See  also  Haynian  v.  Flewker,  13  C.  H. 
N.  s.  .^ilO;  Markf.  Atten borough,  1  15.  & 
S.  831;  Wood  v.  Rowclitl'e,  6  Hare,  191; 
Sliopiiiird  V.  The  Union  Bank  of  London, 
7  lluilst.  &  N.  661;  Paterson  v.  Tush,  2 
Str.  1178  ;  Cole  v.  The  North  Western 
Diink,  L.  R.  10  C.  P.  354 ;  Hartfield  v. 
Phillilis,  12  CI.  &  F.  343;  Moyce  v.  New- 
inf,'ton,  4  Q.  B.  Div.  32;  Johnson  v.  Credit 
Lvoniiais  Co.,  2  C.  P.  Div.  224;  3  C.  P. 
Div.  32. 

^  Talty  V.  Freedman's  Savings  &  Trust 


Co.,  93  U.  S.  321;  Jarvis's  Admr.  v.  Rod- 
gcrs,  15  Mass.  3G9  ;  Lewis  v,  Mott,  36 
N.  Y.  395;  Batcni&n  v.  Pool,  15  Wend. 
637;  Strong  r.  Black,  46  Barb.  222;  Kil- 
inoiison  V.  McLeoii,  16  N.  Y.  543 ;  Bald- 
win V.  Kly,  9  How.  580:  Merchants'  Bank 
V.  The  State  Bank,  10  Wall.  604  ;  Donald 
V.  Suckling,  L.  R.  1  Q.  B.  585  ;  Moore  v. 
Conhani,  Owen,  123  ;  Ratclilfe  v.  Davis, 
Yelv.  178  ;  Johnson  v.  Stear,  15  C.  B. 
N.  s.  330. 

8  Casey  v.  Cavaroc,  96  U.  S.  467. 

*  14  Q.  B.  495. 


>    1".  !i 


ll 


!.  ! 


vw 


108 


COMMENTARIES  ON  SALES. 


[book  I, 


ing  of  the  corn,  which  had  been  drawn  for  delivery  to  K.'s  order, 
and  indorsed  by  K.,  who,  at  the  same  time,  empowered  the  defend- 
ant to  sell  the  corn  if  the  bill  of  exchange  should  not  be  paid. 
Afterwards  K.  advised  the  plaintiff  of  the  transaction,  forwarded 
to  him  the  invoice,  which  stated  the  corn  to  be  shipped  at  the 
risk  and  on  the  account  of  plaintiff,  and  requested  the  plaintiff  to 
accept  the  bill  of  exchange.  The  corn  having  arrived  in  England, 
the  plaintiff,  who  had  accepted  the  bill  of  exchange,  failed  to  pay 
it  at  maturity.  The  Court  held  that  a  special  property  passed  to 
the  defendant,  and  that  no  property  passed  to  the  plaintiff  ex- 
cept upon  the  condition  of  his  paying  the  bill  of  exchange,  and 
that,  he  not  having  paid  the  bill,  the  defendant  had  a  right  to 
retain  the  property.^ 


*  See,  on  the  point  of  the  general  prop- 
erty not  passing  under  somewhat  siniihir 
circumstances,  the  case  of  Wait  v.  Baker, 
2  Ex.  1.  See  also  Chander  v.  Sprague,  5 
Met.  306 ;  Low  v.  Andrews,  1  Story,  39  ; 
Frost  V.  Goddard,  25  Me.  414.  We  note 
that,  in  Wait  v.  Baker,  the  offer  to  sell 
the  cargo,  which  was  accepted  in  ttrnis, 
was  that  the  cargo  was  to  be  "free  oa 
board"  ("f.  o.  b.");  but  it  was  still  held, 


under  a  very  strong  state  of  facts,  that  tlic 
jiroperty  in  the  cargo  did  not  pass  to  the 
vendee.  See,  in  a  hvter  volume,  where  we 
point  out  the  meaning  of  this  term  ("free 
on  board"),  and  show  that  the  construc- 
tion placed  upon  these  words  by  succes- 
sive English  courts,  as  implying  that,  hy 
virtue  thereof,  the  property  in  goods  so 
shipped  passes  to  the  vendee,  cannot  be 
sustained. 


;!i  V     i 


\     (    ■. 

i 

!  '  t 

*  i  •  i  ■■ 

1 

ii' 

i; 

FABT  I.] 


BALES  WITH  INFANTS. 


109 


BOOK   11. 


CERTAIN    SPECIAL    SALES. 


Pbeliminaky. 


It  may  bo  said  in  general  that  parties  competent  to  become 
such  to  any  contract  may  be  parties  to  a  contract  of  sale. 

{  crtain  parties,  such  as  infants,  married  women,  lunatics,  and 
drunkards,  are  under  certain  disabilities  affecting  their  contracts 
of  all  kinds,  questions  relating  to  which  come  up  most  frequently 
in  connection  with  the  contract  of  sale.  There  are  also  others, 
such  as  guardians  and  trustees,  who  from  their  occupying  fidu- 
ciary relations  to  their  wards  and  cestuis  que  trust,  I'espectivcly, 
arc  likewise  under  disabilities.  The  law  of  agency  is  also  an 
important  one  in  connection  with  the  law  of  sales.  We  shall 
consider  subjects  affecting  the  law  of  sales  connected  with  these 
matters  so  far  as  may  be  necessary  for  our  purposes. 


Htif 


«'»i' 


!?; 


PART  L 


SALES  WITH  INFANTS. 


ll 


There  are  three  important  points,  which,  as  regards  an  in- 
fant's contracts,  require  some  consideration.  They  are  (1)  the 
power  of  an  infant  to  contract  for  necessaries,  whether  for  the 
use  of  himself,  his  wife,  or  child;  (2)  as  to  the  power  of  an 
infant  to  bind  himself  by  a  contract  for  purchases  other  than 
for  necessaries;  and  (3)  as  to  his  power  to  ratify  such  last- 
named  contract  on  his  attaining  his  majority. 

The  cases  on  these  points  are  very  numerous,  and  it  is  now 
well  established  that,  at  common  law,  an  infant  can  legally  con- 
tract, so  as  to  bind  himself  for  necessaries.^ 

*  In  answnr  to  a  plea  of  infancy,  in  peared  that  the  infant  had,  at  the  time  the 
Biirgliart  v.  Hall,  4  M.  &  W.  727,  the  plain-  goods  were  supplied,  an  allowance  of  £500 
tiff  replied,  necessaries.  On  the  trial,  itap*    a  year,  besides  his  pay  as  captain  in  the 


K 


I'i 


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iii 

i 

ii 

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i: 

M 

i 

I: 

'i|i'ii' 

1  ■  ' 

■i 

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1 

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^.:  .. 

[ 

4 

t,' 

1. 

110 


COMMENTARIES  ON   SALES. 


[book   II. 


For  a  long  timo  much  confusion  arose  out  of  the  tcrni8 
"  void  "  and  "  voidable  "  being  confounded  with  each  other  with 
reference  to  an  infant's  contracts.  It  is  now  well  settled  that  an 
infant's  contracts,  at  common  law,  arc  not  absolutely  void,  but 
arc  merely  voidable  at  the  election  of  the  infant,'  the  protootiun 
being  that  of  the  infant,  and  not  of  the  adult  who  msiy  con- 
tract with  him.  The  plea  of  infancy  can  only  be  pleaded  by 
the  infant,  and  not  by  an  adult  party  to  a  contract  with  an 
infant.2 

As  to  what  arc  necessaries,  it  is  laid  down  by  old  authori- 
ties^ that  '' An  infant  may  bind  himself  to  pay  for  his  ncci's- 
sary  meat,  drink,  apparel,  necessary  jjhysic,  and  such  other 
necessaries,  and  likewise  for  his  good  teaching  or  instruction, 
whereby  he  may  profit  himself  afterwards."  And  a  minor  is 
liable  for  necessaries  suitable  to  his  state  and  degree,  and  the 
jury  must  consider  not  only  whether  the  article!?  were  suitable 
in  point  of  quality  but  also  in  point  of  quan'ity;*  the  term 
"  necessaries  "  including  such  things  as  are  u.seful  and  suitable  to 
the  state  and  condition  in  life  of  the  party,  and  not  mcrel^^  such 
as  are  requisite  for  bare  subsistence.^ 


army.  Lord  Abiiif^or,  C.  B.,  directed  tlie 
jury  that  if  tlio  iiifiiiit  had  an  iiicomo 
8Ut!icieiit  to  jM-ovide  him  witli  necessaries 
suitable  to  liis  condition,  for  ready  monej', 
he  couhl  not  contract  even  for  necessaries 
upon  credit.  Tiie  jury  liaving  found  for  tho 
defendant,  on  a  motion  for  a  new  trial  tho 
learned  judge  admitted  that  he  had  carried 
the  law  farther  than  any  jircvions  case  had 
carried  tho  rule,  and  in  delivering  the 
juiigment  of  the  court  he  laid  down  the 
rule  that  a  minor  is  cnpablo  by  law  of 
entering  into  a  contract,  not  merely  for 
necessaries  for  ready  money,  but  into  any 
reasonable  contract  for  necessaries,  al- 
though he  might  have  an  income.  This 
case  was  followed  and  a]ii)ruved  in  Peters 
V.  Fleming,  0  XL  k  W.  42,  where  it  was 
decided  that  it  is  a  question  for  the  jury 
whether  the  articles  are  such  as  a  reason- 
able  person,  of  the  age  and  station  of  tho 
infant,  would  re(}uire  for  real  use.  See 
the  cases  of  Ryder  v.  \Vonibw(;ll,  L.  R.  3 
K.K.  90,  and  L.  H.  4  Kx.  a2,  and  .lohnston 
V.  Marks,  19  tj.  B.  Div.  509,  stated  infra. 

1  The  law  is  now  by  statute  otherwise 
in  England.  There,  by  the  Infants'  ]{e. 
lief  Act,  1874  (;!7  &  38  Vic.  e.  62),  all 
contracts  with  infants  for  goods  8ui)i)lied 
or  to  be  supplied,  other  than  contracts  for 
necessaries,  are  absolutely  void,  and  in- 
capable of  being  ratified. 

2  navies  f.  Turton,  13  Wis.  18.5;  Oliver 
V.  Hondlet,  13  Mass.  237  ;  Nightingale  v. 
Withington,  15  Mass.  27'2  ;  Worcester  v. 


Eaton,  13  Mass.  371  ;  Van  Bmnor  r. 
Cooper,  2. Johns.  279;  Hartness  v.  Tliomii- 
son,  5  .lohns.  IGO;  Rose  v.  Daniel,  3 
Brcv.  438  ;  Brown  v.  Caldwell,  10  S.  .'^  1!. 
44. 

8  Co. Lit.  172rt;  Bacon, Ah., /»/««(•?/ (1). 

•  Burghart  v.  Angerstein,  tiC.  &  P. 
690 ;  1  M.  &  Rob.  458. 

6  Peters  V.  Fleming,  6  M.  k  W.  42, 
And  see  Manby  v.  Scott,  2  Sid.  ll:i; 
Brooke  v.  Gallv,  2  Atk.  34;  Bur-li;irt  r. 
JIall,  4  M.  &  \V'.  727;  P.nmker  r.  .S,„tt, 
11  M.  &  W.  07,  and  llntr ;  Whartmi  i'. 
Jlackenzie,  5  Q.  B.  tJOti;  Harrison  v.  V.iw, 

I  M,  &  0.  550;  Chapiiley.  Cooju'r,  13  M. 
&  W.  252;  Clover  i\  Adinr.  of  Ott,  1  Me- 
Cord,  572  ;  Bnnchcll  v.  Clarv,  3  ISiw. 
194;  Rainwaters.  Durban,  2  X.  .t  M.C. 
524;  Coatesf.  Wilson,  5  Esp.  152  ;  ILiiuls 
V.  Slaney,  8  T.  U.  578 ;  Hart  v.  Prater,  1  .liir. 
623  ;  Helps  i;.  Clayton,  17C.  P..  \.  .s.  553; 
Tnpper  v.  Cadwell,  12  .Met.  559  ;  Ora.'p  v. 
Hale,  2  Humph.  27;  Phelps  i\  Worcester, 

II  N.  H.  51.  And  in  such  casesasaii  acliilt 
would  be  liable  on  his  imjilicd  ciiiitrnct 
for  necessaries  for  his  wife  and  infant  eliilil, 
an  infant  would  be  similarly  liable.  "  It 
is  a  well-e.stablished  ruleof  linv,  tlintan  in- 
fant has  aright  to  avoid  his  contracts,  imd 
it  matters  not  whether  his  contnn't  is  luir 
or  unfair,  he  has  a  right  to  rescind  it.  But 
to  this  rule  there  are  some  except  imis. 
An  infant  may  bind  himself  to  pay  foi'  iiis 
necessary  meat,  drink,  apparel,  jiliysie, 
and  liis  good  teaching  and  instruction, 


I'AKT   I.] 


SALES   WITH    INFANTS. 


Ill 


The  works  on  contracts  so  fully  discuss  the  liabilities  of   in- 
fants on  their  contracts,  that  we   conline   ourselves   to   setting 


i.lur. 

|iri'  r. 
stcr, 
lidult 
Titrnct 
IthiM. 
'It 
111  hi- 
ll ml 
i  r:iir 
lUit 
linns. 
li'  his 
lysic, 
Itiuii, 


wlinrrliy  ho  iiiny  profit  liiinsclf  nftorwanla. 
11,'  may  iilMi,  il'iiiiinicd,  takt-  up  provision 
liir  Ills  will'  unci  iliildii'ii.  liiil  it  must 
ii|ipciir  that  till'  tliiiif,'s  woiv  ni'tiinlly 
iiicrsMiry.iit'  n'a.Miiiiilili'  pliers,  iiiiil  siiitiiMu 
to  tlif  iiil'aiit's  (lt'j,'ii't'  mill  I'statc  ;  ton- 
siihnitioiis  wliii'li  iv;;iilarly  uiust  In;  li'l't 
to  till'  jiuy-"  Abi'U  r.  WiuTfii,  4  Vt. 
14lt,  1;VJ.  So,  ill  Bci'li'v  V.  Youii;;,  1 
|iih!>,  5-t',  till'  L-oiiit  said  :  "The  law  is 
.sittifcl,  thiit  an  infant  can  only  l)iuil 
liiiiisi'li"  for  ui'cTssary  tuition,  niiidiciiie, 
victuals  and  I'lotlics,  and  siudi  liki;  iicci's- 
saiii's.  Within  tlu'sc  cxpi'i'ssions  '  siiidi 
othiT  iirc'i;ssaiii.'s  '  may  be  included  ncccs- 
naiics  for  an  infant's  wife,  or  for  nursinj^ 
his  lawful  cliilil."  It  is  clear  that  an 
infant  is  liable  on  his  express  contract  for 
lU'LCssaiiis  furnished  liis  wife  and  lawt"nl 
child  ;  Init  we  have  advisedly  qualified 
our  stati'inciit  of  the  law  with  reference  to 
his  liability  on  his  innilied  contracts  for 
iii'ie>naiies  furnished  them.  He  is  so  liable 
only  to  the  extent  that  an  .idult  would  be 
lialije  on  his  implied  contract.  Henjamin 
statis  otherwise  (Heiij.  on  Sales,  §  '2i>  : 
"  Wiiat  is  su])plied  tliem  on  his  exjiiess  or 
implied  credit  is  considered  as  jmrcliascd 
by  him"),  but  the  authorities  he  cites  do 
not  sustain  his  position.  Broom's  illustra- 
tion of  the  maxim  "  Pcrsoiin  mnjunclo 
(iquiii'irittiir  iiileirAir  pnipn'n,"  thus,  "So 
if  a  man  niider  the  aj:;!!  of  twenty-one 
contiiut  for  the  uursiuf;  of  his  lawful 
eliihi,  this  contract  is  flood,  and  shall  not 
be  avoided  by  infancy,"  relates  clearly  to 
the  express  contract  of  the  infant.  The 
old  ease  of  Itaiiisford  v.  Fenwick,  Carter 
21.5  CJ'J  Car.  •>)  —  "  Infant  of  lifteen  years 
of  af;c  marries  a  wife,  may  not  he  take  up 
lu'ovision  for  his  wife  and  children  ? "  — 
is,  also,  a  o.xse  of  an  express  contract. 
Another  old  case  (Turner  t'.  Trisby,  1 
Str.  liiS)  holds  that  necessaries  for  an 
infint's  wife  are  necessaries  for  him  ;  but 
if  provided  for  the  marriajre,  he  is  not 
charj,'i'able,  thoufjh  she  uses  thoni.  He 
\yoiilil,  clearly,  as  rej;ards  his  wife,  bo 
liable  only  for  necessaries  to  lier  to  the 
same  extent  as  an  adult  would  be  under 
similar  circumstances;  a  subject  whicii  we 
consider  in  a  later  portion  of  this  work. 
See  imf,  r„)ok  II.,  Part  IV. 

As  recrards  the  liability  of  a  father  for 
neeessaiies  supplied  to  his  minor  children 
the  authorities  are  not  in  harmony,  but  it 
is  i«Ttictly  safe  to  .say  that  where  an  adult 
piiivnt  is  not  liable  for  neces.saries  furnished 
liis  minor  children,  an  infant  is  not  so. 
In  Nichole  V.  Allen,  3  C.  &  V.  36,  liord 
TentciiUn  held  at  nisi  prim  that  if  a 
person  knew  that  his  illegitimate  daughter 


of  the  ago  of  16,  was  boardint,'  and  clothed 
by  the  plaintilV,  and  neither  expresses 
dissent  nor  takes  his  daughter  away,  he 
is  liable  to  pay  the  plaint ilf  for  such  lionrd 
and  lodging  without  any  express  promise 
to  ilo  so  ;  and  that  it  lies  on  the  ilefcnd- 
ant  to  show  that  his  daughfer  was  boarded 
nnd  lodged  by  the  plaintilf  against  his 
consent,  or  that  he  has  refused  to  maintain 
her  any  hmger  at  his  expense,  lie  held 
further  that  there  was  not  only  a  moral, 
but  a  legal  obligation  on  the  defendant  to 
inaintaiii  his  child,  and,  that,  knowing 
where  she  was,  and  expressing  no  dissent, 
and  not  taking  her  away,  he  was  liable  for 
her  support.  In  Law  v.  Wilkin,  6  A.  & 
K.  7'JO,  Lord  I'eiinmn  lays  down  the  law 
to  the  same  etlect.  He  says  :  "A  father 
is  properly  liable  for  any  necessary  jiro- 
vision  made  for  his  infant  son.  in  this 
instance  the  father  was  living  at  a  short 
distance  from  the  jilace  where  the  goods 
were  .sujiplied.  There  was  no  evidence 
that  he  had  authorized  the  muster  of  the 
school,  or  any  other  person,  to  jnovide 
tilt  boy  with  clothes,  or  that  he  had  in 
any  way  furnished  a  su]iidy  for  that  pur- 
pose. If  he  wished  to  relieve  himself 
from  liability,  I  do  not  see  why  he  should 
not  have  jiroved  that  ho  took  such  stejis  to 
provide  for  his  son  as  rendered  this  supply 
unnecessary."  The  weight  of  authority, 
in  Kngland,  nt  least,  is  decidedly  the 
other  way.  Chief  .Instice  Abboit,  in 
Baker  v.  "Keen,  2  Stark.  .''.02,  states  the 
law  thus  :  "  A  father  would  not  be  bound 
by  the  contract  of  his  son,  unless  either 
an  actual  authority  were  jiroved,  or  cir- 
cumstances a|i]ieared  from  which  such  an 
authority  might  be  ini]died.  Were  it 
otherwise,  a  father,  who  had  an  imprudent 
son,  might  be  jirejiidieed  to  an  indefinite 
extent  ;  it  was  therefore  neces.sary  that 
.some  ])roof  should  be  given,  that  the 
order  of  a  son  was  made  by  the  authority 
of  his  father.  The  ipiestion,  therefore, 
for  the  consideration  of  the  jury  was' 
whether,  under  the  circumstances  of  the 
particular  case,  there  was  sutlieient  to 
convince  tlieni  that  the  defendant  had 
invested  his  .son  with  such  authority." 
The  law  was  similarlv  stated  by  (Juriiey, 
B.,  in  Rolfe  V.  Abbott,  6  C.  &  P.  286, 
with  the  addition  that  the  father  is  the 
person  to  judge  wdiat  is  proinr  for  h's  son, 
and  to  charM  the  father  it  is  essential 
that  the  goods  should  have  licen  supplied 
with  his  assent,  or  by  his  authority. 
Blackburn  v.  JIackay,  1  C.  &  P.  1 ;  Flnck 
V.  Tollemache,  1  C.  &  P.  5  ;  Seaborne  v. 
Maddy,  9  C.  &  P.  497;  Mortiniore  v. 
Wright,  6  M.  &  W.  482  ;  9  L.  J.  Ex.  158, 


\i 


:tit| 

III  ii 
lilt 


112 


COMMENTARIES  ON  SALES. 


[»00K  II. 


forth  a  few  cases  which  make  the  law  sufficiently  clear  on  tlio 
subject  for  our  purpose  ;  exauiiuin}?,  in  our  notes,  sucli  matters  in 
connection  therewith  as  we  thinl«  require  special  consideration. 

anil  many  other  cases,  are  to  the  same 
etrci't.  ill  the  cast!  of  Mt)rtlii»oi'o  v. 
Wright  {.wpra)  the  deeisions  in  Ni(;holo  v. 
Allen,  3  C.  i  P.  3tJ,  and  Law  v.  Wilkin, 
6  A.  &  E.  718,  were  stronj^ly  dlsapproveil, 
and  it  was  decided  that  a  father  is  not 
liable  for  dehts  incurred  by  liis  son  while 
under  age,  unless  he  has  given  an  authority 
to  the  son  to  incur  them,  or  has  consented 
to  pay  them  ;  and  that  the  moral  obliga- 
tion that  he  is  under  to  provide  for  ids 
children  imposes  no  such  liability.  liOrd 
Abinger  said  :  "In  point  of  law,  a  father 
who  gives  no  authority,  and  enters  into  no 
contract,  is  no  more  liable  for  goods  sup- 
plied to  his  son  than  a  brother,  or  an 
uncle,  or  a  mere  stranger  would  be.  From 
the  mere  obligation  a  parent  is  under  to 
provide  for  his  children,  a  jury  are,  not 
unnaturally,  disposed  to  infer  against  him 
an  admission  ot  a  liability  in  respect  of 
claims  upon  his  son,  on  grounds  which 
warrant  no  such  inference  in  point  of  law. 
.  .  .  If  a  father  does  any  specitic  a(.'t,  from 
which  it  may  reasonably  be  infernul  that 
he  has  nuiiionzed  his  son  to  contrai't  a 
debt,  he  may  be  liable  in  respect  of  the 
debt  so  contracted  •  but  the  mere  obliga- 
tion on  the  father  to  maintain  his  child 
affords  no  inference  of  a  legal  promise  to 
pay  his  debts  ;  and  wo  ought  not  to  put 
upon  his  acts  an  interpretation  which 
abstractedly,  and  without  reference  to 
that  moral  obligncion,  they  will  not 
reasonably  warrant.  In  orler  to  bind  a 
father  in  point  of  law  for  a  debt  incurred 
by  his  son,  you  must  prove  that  he  has 
contracted  to  be  bouiui,  just  in  the  same 
manner  as  you  would  prove  such  a  con- 
tract against  any  other  person  ;  and  it 
would  bring  the  law  into  great  uncer- 
tainty, if  it  were  permitted  to  juries  to 
impose  a  liability  in  each  particular  case, 
according  to  their  own  feelings  or  pre- 
judices." And  Parke,  B.  ;  "  It  is  a  cWar 
principle  of  law,  that  a  father  is  not  under 
any  legal  obligation  to  pay  his  son's  debts ; 
exce|)t,  indeetl,  by  proceedings  under  the 
43  Eliz.,  by  which  he  may,  under  certain 
circumstances,  be  compelled  to  support 
his  children  according  to  his  ability  ;  but 
the  mere  moral  obligation  to  do  so  cannot 
impose  upon  him  any  legal  liability."  See 
Shelton  (•.  Springett,  11  C.  H.  452  ;  Moon 
V.  Towers,  8  C.  B.  N.  s.  611  ;  Andrews 
V.  Garrett,  6  C.  B.  n.  s.  262.  In  Shel- 
ton  V,  Springett  {.lupra),  Maule,  J.,  said  : 
"People  are  very  apt  to  imagine  that  a 
son  stands  in  respect  to  being  supplied 
with  necessaries  upon  the  same  foot- 
ing as  a  wife.    But  this  is  not  so.     If  it 


bo  asked,  is,  then,  the  son  to  Ixj  left  to 
starve,  —  the  answer  is,  he  must  n\>]>\\  to 
the  parish,  and  they  will  compel  ilie 
father,  if  of  ability,  to  pay  for  his  sim's 
HUjiport.  This  is  the  (-ourso  which  tiif 
law  points  out.  But  the  law  docs  not 
authorize  a  son  t>  iiiiid  his  father  by  lii^ 
contracts."  This  must  now  be  cousiiliTed 
the  thoroughly  established  law  in  Kiii;- 
land.  See  Urmston  v.  Xew(!omiii,  4 
A.  &  E.  8U1),  and  cases  there  eite.l. 

The  law  (ju  the  suijjeet  in  this  cnuntry 
has  bjen  (piite  as  unsettled  as  in  Knglaiid. 
The  same  irreconcilable  coiiilict  is  siiown 
in  the  text- books  and  in  the  teases  as  Iiuh 
characterized  the  law  in  England,  |iiiur 
to"  its  being  settled  as  it  now  is.  Kent 
says  :  "  During  the  minority  of  the  cliilil 
the  parent  is  atisolutely  bound  to  provide 
reasonably  for  his  maintenance  and  eilmii- 
tion  ;  and  he  may  be  sued  for  necessaiica 
furnished,  and  schooling  given  to  a  ihild, 
uniler  just  and  reasonable  eircumstanu's." 
2  Kent's  Com.  191.  Two  English  casis 
are  cited  to  sustain  this  proposition  ;  both 
being  mere  nisi  prias  decisions.  The  'I'st, 
Simpson  v.  Robertson,  1  Esp.  17,  con,  :..j 
a  dictum  by  Lord  Kenyon  to  tliat  eliirt, 
which  has  been  repeatedly  overruled,  as 
wo  have  shown.  The  other  case,  Ford  v. 
Fotherill,  1  Esp.  211,  has  no  bearing  on 
the  (piestion  at  all.  It  was  an  action,  not 
against  a  jtarent  at  all,  but  against  an  in- 
fant, and  Lord  Kenyon  held,  that  a  per- 
son  trusting  an  infant  did  it  at  his  ]ifiil ; 
and,  though  it  had  been  stated  that  a 
tradesman  had  no  business  to  inquire  into 
what  dealings  an  infant  had  with  others, 
he  wa.  of  the  opinion  the  trailesnian  wiis 
bound  to  make  such  inmiir}',  ami  if  the 
infant  had  contracted  otner  debts  at  tiie 
same  time,  for  the  same  sort  of  articles  for 
which  the  action  was  brought,  such  was 
good  evidence  to  rebut  the  presumiitioii 
of  necessaries.  Parsons,  too,  while  stating 
the  law  as  established  in  England,  virtually 
as  it  is  stated  by  us,  states  the  rule  as  {gen- 
erally prevailing  here,  that,  where  neci'ssa- 
ries  are  supplied  to  an  infant,  "tiie 
father's  authority  is  presumed  unless  lie 
supplies  them  himself,  or  was  ready  to 
supply  them.  "  1  Parsons  on  Con.  3i)5. 
Schouler,  on  the  other  hand,  says  ;  —  "  A 
father  is  not  bound  by  the  contracts  or 
debts  of  his  son  or  daughters  even  for 
necessaries,  as  a  rule,  unless  the  einnm- 
stances  show  an  authority  actually  given 
or  to  be  legally  inferred."  Sch.  Doin,  IJel. 
§  241.  There  are  very  many  ca.ses  in  this 
country  which  sustain  both  of  these  ton- 
flictiug  statements  of  law  which  we  have 


I'AUT  I.] 


SALES   WITH   INFANTS, 


118 


The   Supreme   Court  of  tho  United  States  discuss   at  lonjjtli, 
in  Tiicivcr  V  Moroland  *  the  question  as  to  whether  iind  in  whsit 


(luntril    fiom   Kent  iiinl   HcUoulcr.      We 

.state  sciiiii'  "f  tlii'in. 

Wiiks  r.  M.'iTow,  40  Me.  151,  iniikoH 
till' ilistiiictiiiii,  tliiit  wlicii'  a  child  Iftivus 
liis  pan-iii's  lioiisc,  vulmitarily,  lor  the 
iiiir|in.sc  (if  scrkili;,'  llis  t'ol'tUlU!  ill  till' 
Will  111,  tir  to  avoid  till'  ilisi'lpliiu'  and  iii- 
.stniini  ^o  iici  rssiiiv  lor  tiif  due  ivj^iilatioii 
nl  l.iiiiilii-i,  111'  I'aiiifs  "itli  him  no  rrrdit  ; 
aii'l  il;i'  I'iiMiit  is  uiidi  T  no  ohli;;ation  tor 
lu-.-ii|'|i<iit.  Aiigri  V.  .Mcl.cUan,  Iti  Mass. 
:iS.  Hut  tliiil,  oil  till'  otiier  liaiid,  it'  a 
iiiiiiiir  is  fmriil  out  into  thii  world  hy  the 
I'liiillyor  iiii|i|olMT  t'oiiduct  of  the  parent, 
aii'l  is  ill  w.iiit  of  ni'ii'ssarit'.s,  sui'h  ncccs- 
sariis  may  lie  sii|i|iiii'd,  and  the  value 
tbii'iiif  eoUiM'ted  I'ldiu  the  |)arent  on  an 
iiii|iliiil  lolitiaet.  J'io  in  Cowls  v.  Cowls, 
3  (iiliii,  (111.)  435,  where  infants  were 
takiii  (lilt  (if  till'  custody  of  the  father  for 
iniiiroi'ir  coiiiliict  on  his  part,  the  court  of 
I'liaiiriiy  held  that  where  the  children  had 
iiii  pi'iipcrty  of  tiicir  own,  the  father  was 
IhiiuhI  fur  thiir  support,  and  decreed  that 
111'  sliiiiiiil  provide  lor  their  niaintenniice 
witii  tlii'ir  mother,  from  whom  lie  had 
ln'i'ii  i!ivii:iiil.  The  claim  for  necessaries 
fiiriii>liiil  cliildicn  was  sustained  in  Crom- 
wiU  V.  i')iiij;imiii,  41  Barl).  558,  where  the 
lialijlity  was  put  on  ^^rouiids  analoj^ous  to 
tiiose  ill  ris]iect  to  the  lialiility  of  n  hus- 
band fur  Ills  wife'.s  support.  And  in 
Villi  V.ilkeiiliufijh  V.  Wat.son,  13  John.s. 
4Sii,  it  was  held,  on  the  authorities  in 
1  Ksp.  eitid  liy  Kent,  as  above,  that  a 
paiviit  is  iimlcr  a  natural  obligation  to 
luiiii>li  iici'i'ssaries  for  his  infant  (diildren  ; 
ami  if  till'  pnient  neglect  that  duty,  any 
otliir  piisoii  who  supplies  such  necessaries 
is  lieeiiii'il  to  have  conferred  a  benefit  ott 
the  iltliiii[iieiit  iiarent,  for  which  the  law 
rai.'ii's  an  iiiiplied  iiiomise  to  jiay  on  the  part 
of  tlie  iiaiciit.  But  what  is  actually  neces- 
.>wiy  will  ill  peiid  on  the  jireci.se  situation 
iif  the  infant,  and  which  the  party  givinjT 
the  uicilit  iiuist  be  aei|uiiiuted  with  at  his 
peril.  And  where  the  infant  is  sub  potvs- 
I'll''  paiYiilis,  tiieie  must  be  a  clear  and 
Jialpalile  omission  of  duty,  on  the  part  of 
till'  parent,  in  order  to  authorize  any  otlier 
liiTsiiii  to  act  for,  and  charge  the  expense 
to  the  piiient.  In  Kcaton  v.  Davis,  18 
<!a.  457,  an  action  brought  against  the 
tatliev  for  a  bill  paid  for  medical  services 
fnr  Ills  son.  it  was  held  that  if  the  son 
wiiv  a  iiiiiior  under  the  jilaintitr's  care, 
"itliat  his  parents  were  not  near  .'in,  or 
liail  nut  made  any  such  provision  for  him, 
or  tliat  the  exigeiicii^s  of  the  ca.se  made  the 
payment  of  the  bill  reasonable  and  proper, 


the  hiw  would  have  im|ilied  a  promise  by 
the  father  to  imy  the  bill.  In  the  old  ease  of 
Stanton  i'.  Wii.-on,  :i  Uay  ((  oiiii.),  :i7,  57, 
the  law  was  iidinittcd  to  be,  as  it  is  now 
settled  in  r.iiglaiid,  iis  generally  true,  that 
miiiois  under  the  gnveniinent  of  parents 
cannot  bind  their  parents  fur  necessaries 
without  their  consent,  —  a  siillieieiit  reason 
being  found  for  the  rule  fmni  the  danger  of 
eneouiagiiig  children  in  iillcness  and  dis- 
obedieliee,  iind  iif  their  being  inveigled 
into  expense  by  the  idle  and  designing. 
But  it  was  hel'l  that  the  rule  ceased  when 
the  father  had  abalidniied  his  duty,  and 
had  forced  his  child  abiiiad  to  seek  a  sus- 
teiiaiiee:  that  then  he  seinis  a  credit  iilnnj^ 
with  li>ni,  Iind  is  not  periiiitled  to  .say  it 
wa..  liMiished  without  his  consent  or 
agaiuff  1  is  will.  Owen  x\  White,  5  I'or- 
ter  (All.),  4;i5,  is  to  the  sunie  clfect.  It 
was  liiere  held  that  a  father  is  not  bound 
1  the  cciitraet  of  hi.^  son,  even  for  articles 
I  itable  and  n  eessary,  unless  an  actual 
anthorit',  be  proved,  nv  the  circunistanccs 
bo  sulHii  'lit  to  imply  one.  'I'liat,  so  long 
as  t)  ■  eliild  continues  under  the  direction 
and  control  of  the  father,  it  is  left  to  the 
discretion  of  the  jiareiit  to  deterniinc  what 
is  necessary  for  him,  unless  it  ajipcar  that 
there  is  a  clear  omissiMii  nf  )iaieiital  duty 
in  providing  for  his  niaiiitunincc.  But 
where  this  is  the  case,  the  law  subjects  the 
father  to  the  jiayineiit  for  necessaries  fur- 
nislied  by  a  third  person,  upon  the  gniund 
that  his  neglect  to  do  that  which  natural, 
moral,  and  inuiiiiijuil  law  have  j.iesciibcd 
as  a  duty,  implies  an  authority  to  bind 
the  parent.  The  law  is  similarly  stated 
in  Pidgin  v.  Cram,  8  N.  II.  ;i50,  [i',2.  See 
also,  Thompson  i;.  Doiscy,  4  iMd.  Cli.  149  ; 
Gill  V.  Read,  5  Bh.  Is.  343  ;  h'uniney  v, 
Keyes,  7  N.  11  571  ;  Allen  r.  .lacobi,  14 
111.  A])]).  277  ;  Tonikins  ><.  Tomkins,  11 
N.  ,1.  Kij.  512  ;  Hillsborough  v.  Deering, 
4  N.  JI.  8ti;  Piaster  v  IMa.ster,  47  111. 
200  ;  Gills'  Industrial  Home  r.  Fritehley, 
10  Mo.  A\f\).  344  ;  Courtiiglit  v.  Court- 
right,  40  Jlich.  (;3'2  ;  People  v.  Strickland, 
13  Abb.  N.  C.  473  (under  the  New  York 
Code)  ;  Clark  v.  Clark,  4(j  Conn.  586  ; 
Jordan  i".  Wright,  45  Ark.  237;  Dennis 
V.  Clark,  2  Cush.  347;  Keyiudds  v, 
Sweetser,  15  Gray,  78  ;  I'rnw  v.  Bright- 
man,  136  M.iss.  187  (a.  I).  18.^3). 

On  the  other  hand,  a  largo  number  of 
what  we  think  are  the  better  considered 
cases  in  tliis  country  are  in  harmony  with 
what  is  now  the  settled  law  in  England. 
The  law  is  well  laid  down  by  Wilson, 
C.   J.,  in   Hunt  v.  Thompson,  3  Scam. 


VOL.  I. 


1  10  Peters,  58. 
8 


;;t 


V 


K   1  Pit 


*       t. 


I 


114 


COMMENTARIES  ON  SALES. 


[book  II. 


cases  an  infant's  acts  and  contracts  are  voidable  or  void.    As 
intimated  above,  a  good  deal  of  the  confusion  which  has  arisen  ia 


If 


■1,    .     I  ; 


mV'i' 


(111.)  179,  although  in  that  State  (Illinois) 
there  are  decisions  the  othi-r  way.  In 
fact,  so  great  is  the  conHiet  in  this  country, 
as  it  has  been  in  England,  on  the  ques- 
tion, that  not  infrequently  in  the  courts 
of  the  same  State,  decisions  as  flatly 
contradictory  of  each  other  are  found  as 
are  observable  in  the  courts  of  the  country 
as  a  whole.  Wilson,  C.  J.,  says:  "That 
a  j»arent  is  under  an  obligation  to  provide 
for  the  maintenance  of  his  infant  children 
is  a  i)rinci[)le  of  natural  law  ;■  and  it  is 
upon  this  natural  obligation  alone,  that 
the  duty  of  a  parent  to  provide  his  infant 
children  with  the  necessaries  of  life  rests  ; 
for  there  is  no  rule  of  municipal  law  en- 
forcing this  duty.  The  claim  of  the  wife 
upon  the  husband,  for  necessaries  suitable 
to  his  rank  and  fortune,  is  recognized  by 
the  principles  of  the  common  law,  and  by 
statute.  A  like  claim,  to  some  extent, 
may  be  enforced  in  favor  of  indigent  and 
iutirni  parents,  and  other  relatives,  against 
children,  etc.,  in  ma  riy  cases  ;  lit,  as  a 
general  rule,  the  obligation  of  a  parent  to 
provide  for  his  oirs[>ring,  is  left  to  the 
natural  and  inextinguishable  affection 
which  Providence  has  implanted  in  the 
breast  of  every  parent.  This  natural 
obligation,  however,  is  not  only  a  sulfi- 
cieut  consideration  for  an  express  promise 
by  a  father  to  pay  for  necessaries  furnished 
his  child,  but  when  taken  in  connection 
with  various  circumstances,  has  been  h;ld 
to  be  sufficient  to  raise  an  implied  promise 
to  that  effei^t.  But  either  an  express 
promise,  or  circumstances  from  which  a 
promise  by  the  father  can  be  inferred,  are 
indispensably  necessary  to  bind  the  parent 
for  necessaries  furnished  his  infant  child 
by  a  third  person."  And  in  this  case, 
whic'.i  is  a  valuable  one  on  the  subject,  it 
was  held  tiiat  the  father  was  not  liable  for 
necessaries  furnished,  against  his  order,  to 
Ilia  sou.  The  case  of  Gordon  v.  Potter, 
17  Vt.  34S,  is  (.nother  valuable  case  on 
the  subject,  in  which  Redtield,  C.  J., 
condemns  the  principle  in  the  matter  laid 
down  by  Kent,  and  shows  that  the 
authorities  in  Espinasso,  to  which  we 
have  referred,  do  not  warrant  Kent's  con- 
clusion. The  court  hold,  reversing  the 
judgment  of  the  court  below,  that  to 
charge  the  father,  it  is  essential  that  the 
goods  should  have  been  supplied  with  his 
assent  or  by  his  authority,  adding  chat 
"It  is  obvious  that  this  rule  makes  no 
provision  for  strangers  to  furnish  children 
with  necessaries  against  the  will  of  par- 
ents, even  in  extrenie  cases.  For  if  it  can 
be  done  in  extrenie  cases,  it  can  in  every 
case  where  the  necessity  exists  ;  and  the 


right  of  a  parent  to  control  his  own  child 
will  altogether  depend  upon  his  f urn  ishiiig 
necessaries,  suitable  to  the  varying  taste 
of  the  times.  There  is  no  stopping-place 
short  of  this,  if  any  interference  whatever 
is  allowed.  If  the  parent  abandons  the 
child  to  destitution,  the  public  authorities 
may  interfere,  and,  in  the  mode  pDinted 
out  by  statute,  compel  a  proper  mainten- 
ance. But  this,  according  to  the  English 
common  law,  which  prevails  in  this  State, 
is  not  the  right  of  every  intermediUing 
stranger."  Jlaymond  v.  Loyl,  10  Hmb. 
483,  is  in  full  accord  with  the  well-decideil 
English  cases,  and  with  the  law  as  laid 
down  by  Redfield,  C.  J.,  in  Gordon  v. 
Potter,  17  Vt.  348  ;  and  notwithstanding 
the  previous  holding  in  New  York,  in 
Van  Valkenburgh  v.  Watson,  13  .Johns. 
480,  the  rule  as  laid  down  by  Kent  is  ilis- 
approved  and  dissented  from  ;  the  author- 
ities are  fully  examined,  and  the  law  as 
now  held  in  England  agreed  with.  Tlie 
law  was  laid  down  with  what  we  think  is 
equal  correctness  in  Brown  v.  Deloai.di,  28 
Ga.  486.  There,  Benniug,  J.,  delivering 
the  judgment  of  the  court,  says:  "Tin; 
question  arises  whether  a  father  is  bound 
to  pay  for  necessaries  furnished  to  his 
minor  child,  but  furnislu^d  without  his 
authority.  The  English  cases  seem  to 
answer  this  question  in  the  lU'gativu 
[citing  several  of  the  cases  cited  by  us, 
siiprii].  And  we  very  much  incline  to 
think  that  the  English  cases  are  right. 
Not  that  we  know  of  any  very  general 
variance  in  the  American  cases.  [Hut 
there  is  though.  See  eases  cited  aiitc] 
Even  if  a  father  is  bound  to  furnish  his 
child  with  necessaries,  and  fails  to  do  so, 
that  does  not  impose  an  oldigatiou  on  any 
third  person  to  discharge  the  duty  nl'  the 
father.  If  a  third  person  does  it,  then  he 
does  it  voluntarily,  and  what  right  have 
voluntary  services  to  expect  more  than 
voluntary  compensation  ?  If  we  mny.of  our 
own  accord,  discharge  this  duty  for  otlicin. 
and  comjiel  them  to  pay  us  for  it,  why  may 
we  not,  of  our  own  accord,  ])ay  tlieir 
debts,  or  discharge  any  of  their  other 
duties  for  them,  and  compel  them  to  com- 
pensate us  for  so  doing  /"  In  Angel  r. 
McLellan,  16  Mass.  "28,  Parker,  C.  J., 
delivering  the  judgment  of  the  court,  says; 
"  The  defendant's  son  had  fallen  into  (lis- 
tless in  a  foreign  countrj',  to  which  he  hail 
fled  to  avoid  the  consecpiences  of  a  crime 
committed  in  his  native  country.  He 
was  a  minor  and  without  jiroperty.  The 
plaintiff,  knowing  his  father  to  be  a 
reputable  merchnnt,  paid  his  Itoard,  and 
supplied  him  with  such  things  as  were 


PART  I.] 


SALES  WITH  INFANTS. 


115 


the  question,  in  the  cases,  has  been  the  result  of  treating  the  two 
voids  as  being  synonymous,  and  thus  referring  to  an  act  or 


necessary  for  his  condition,  relyinj;  upon 
tlie  honor  and  gnitiuide  of  the  father  to 
reiinlnirsc  him.  The  liability  of  the  father 
must  di'iicnd  altogether  upon  the  prin- 
cililcs  of  law  wliieh  govern  the  relation  of 
liiiiciit  ami  child."  The  court  then  cau- 
tiously add  :  "  Perluips  if  he  fail  to 
luniish  tlieiu  with  clothing  and  food 
iicci'ssary  to  the  support  of  life,  any  one 
who  hiniislu's  such  necessaries  may  main- 
tain an  aitiun  against  the  father,  upon 
tlie  ini'suniptioii  of  an  assent  on  his  jjurt. 
Peiimiis,  also,  if  he  cruelly  and  causelessly 
turn  tlieni  out  of  doors,  they  would  carry 
with  them  a  credit  on  the  father  for  the 
means  of  su]iport ;  although  it  may  be 
(|Ui'stioiied  whether,  in  such  a  case,  the 
suiipnit  (if  such  children  should  not  be 
provided  for  pursuant  to  the  statute,  re- 
ijuirinj,'  the  kindred  of  poor  jiersons  within 
eertiiin  degrees  to  support  them."  And  the 
court  then  state  a  principle  in  accord  with 
the  well-decided  English  cases,  and  with 
the  American  cases  referred  to  in  this  para- 
graiili,  thus:  "The  law  has  wisely  left 
individual  cases  of  generous  interference, 
to  ilejiend  U]ioii  the  honor  of  those  con- 
nected with  the  object  of  it,  rather  than 
place  in  the  hands  of  thoughtless  or  ill- 
disposed  youth  their  parent's  purse,  to 
supply  their  wants  with,  whenever  they 
should  incline  to  deny  liis  authority,  and 
withdraw  themselves  from  his  govern- 
ment." It  was  afterwards  decided  in  the 
.same  State,  in  Looniis  v.  Newhall,  15 
Pick.  151),  that  the  liability  of  a  father 
under  the  Massachusetts  Statute  1793,  c. 
ay,  §  3,  to  supjKirt  his  son,  who  is  unable 
to  sujiport  himself,  does  not  accrue  until 
proceedings  have  been  luid  pursuant  to 
the  statute  ;  consecpiently  the  furnishing 
supplies  to  the  son  before  such  proceed- 
ings have  been  had,  is  not  a  benefit  to 
the  father,  so  as  to  constitute  a  legal 
consideration  for  his  promise,  made  after 
the  supplies  were  furnished,  to  pay  for 
tiieni.  i'lie  decision  in  Hunt  v.  Tluuup.son, 
3  S,ain.  17!',  was  followed  in  (tolts  v. 
C'liirk,  78  111.  22!l,  where  ncces.saries  were 
I'urnished  a  minor  daughter,  and  the  father 
w;is  held  not  liable,  there  being  neither  an 
express  pr,)iiiise  by  him,  nor  circumstances 
from  whieh  a  promise  could  be  imjilied. 
In  a  later  -ase  in  New  York  (a.  n.  1880), 
Cartels  v.  Moore,  9  Daly,  23.1,  which  was 
an  action  against  a  father  for  necessaries 
lurnislied  his  minor  son,  the  court,  in 
linlding  that  the  father  was  not  liable, 
said:  "The  fact  that  the  father  ordered 
from  the  plaintilf  clothes  for  his  son  when 
he  was  a  mere  child,  and  paid  for  them, 
would  not  authorize  the  plaintiflfto  furnish 


clothes  to  the  son  when  he  was  nineteen 
years  of  age,  on  his  father's  credit,  unless 
the  father  expressly  authorized  it."  This 
must  not  be  understood  as  intimating  that 
a  contract  might  not  Ij  implied  from  cir- 
cumstances, as  correctly  held  in  many  of 
the  well-decided  cases. 

In  Kelley  v.  Davis,  49  N.  H.  187,  which 
is  a  very  valuable  case  on  the  ([uestion,  an 
unsatisfactory  attempt  is  made  to  sustain 
the  holding  in  Tidgiu  v.  Cram,  8  N.  H. 
352  ;  but  as  far  as  that  case  follows  the 
law,  as  it  purports  to  do,  laid  down  by 
Kent,  it  is  strongly  dissented  from.  Kelley 
V.  Davis  decides  that  the  legal  obligation 
of  the  father  to  pay  for  necessaries  fur- 
nished a  minor  child  rests  upon  con- 
tract alone  ;  and  where  a  parent  gives  no 
authority,  and  enters  into  no  contract,  he 
is  no  more  liable  to  pay  a  debt  contracted 
by  liis  child,  even  for  necessaries,  than  a 
mere  stranger  would  be.  See,  also,  Farm- 
ington  V.  Jones,  36  N.  II.  271;  Towiisend 
V.  Burnham,  22  N.  H.  277  ;  French  v, 
Benton,  44  N.  H.  30,  in  accord  with  this 
holding ;  the  deduction  from  the  holding 
in  which  cases  being  that  a  parent  cannot 
be  charged  for  necessaries  furnished  by  a 
stranger  for  his  minor  child,  except  upon 
a  promise  to  jiay  for  them  ;  and  that  such 
promise  is  not  to  be  implied  from  mere 
moral  obligation,  nor  from  the  statutes 
providing  for  the  reimbursement  of  towns  ; 
but  the  omission  of  duty  from  which  a 
jury  may  find  a  promise  by  implication  of 
law  must  be  a  legal  duty,  capable  of  en- 
forcement bv  i>rocess  of  law.  Kelley  v. 
Davis,  49  N.  11. 187, 193.  So,  in  Michigan, 
where  a  judgment  against  a  father  for 
necessaries  supplied  to  a  son  was  reversed, 
it  was  done  on  the  ground  that  the  father 
had  never  authorized  the  son  to  buy  on 
his  account,  nor  had  he  in  any  way  given 
the  claimants  to  understand  otherwise  ; 
there  being  no  evidence  of  either  an  actual 
or  implied  authority,  or  of  any  nssutnjition 
or  conlirmation  of  the  transaction.  Tyler 
V.  Arnold,  47  Mich.  564  (a.  ii.  1882). 
In  Kew  .Icrsey,  too,  notwithstanding  it 
was  held  and  stated,  in  Tomkins  v.  Tom- 
kins,  11  N.J.  Kq.  512,  517,  that  — "The 
law,  as  it  has  been  adopted  in  this  State, 
is  as  laid  down  by  the  court  in  Van  Val- 
kenburgh  v.  Watson,  13  Joliiis.  480.  A 
parent  is  bound  to  jirovide  for  infant 
children  with  necessaries  ;  and  if  lie  neg- 
lect to  do  .so,  a  thinl  person  may  supply 
them,  and  charge  the  parent  with  the 
amount,"  declaring,  expressly,  that  the 
law  as  held  in  England  "  is  not  the  law  of 
New  Jersey  :  "  the  late  case,  in  that  State, 
of  Freeman  v.  Robinson,  38  N.  J.  L.  383, 


i  •    ^!-     '  I 


f  I  m 


li   |i 


\  r; : 

116 


COMMENTARIES  ON  SALES. 


[book  II. 


contract  as  being  void,  when  it  is  really  only  so  at  tho  election  of 
the  infant,  and  is  therefore,  in  fact,  voidable  and  not  void. 


adopts  and  follows  the  law  as  decided  in 
Engliiiid,  and  by  the  well-decided  cases  on 
the  suhjuct  in  this  country.  The  New 
Jersey  Suiireme  Court  unanimously  held, 
that  tho  duty  of  a  father  to  provide 
maintenance  for  his  children  is  a  mere 
moral  oblif;ation.  ilxeept  in  cases  within 
the  statute  of  Elizabetii,  and  by  the  pro- 
cedure there  pointed  out,  he  is  not  legally 
compellable  to  perform  this  duty.  No 
action  can  bo  maintained  against  a  father 
for  goods  purchased  on  his  credit  by  his 
minor  child,  even  though  they  be  neces- 
saries, unless  the  father  has  expressly  or 
impliedly  authorized  the  purchase  on  his 
credit.  The  authority  of  an  infant  to 
bind  the  father  by  contract  for  necessa- 
ries may  be  inferred  from  slight  evidence. 
But,  nevertheless,  where  the  jiarent  gives 
no  authority,  and  enters  into  no  contract, 
he  is  no  more  liable  to  pay  a  debt  con- 
tracted by  his  child,  even  for  necessaries, 
than  a  mere  stranger  would  be.  Tho 
mere  moral  obligation  of  a  parent  to 
maintain  his  child  alfords  no  legal  infer- 
ence of  a  promise  to  pay  a  debt  con- 
tracted by  him  even  for  necessaries.  And, 
reversing  the  judgments  of  the  courts 
below,  tlie  Supreme  Court  held  further, 
that  the  duty  being  one  of  moral  obligation 
only,  and  the  necessaries  having  been  fur- 
nished without  the  request  of  the  father, 
actual  or  implied,  his  subsequent  promise 
to  pay  for  them  was  without  the  consider- 
ation which  is  necessary  to  the  validity 
of  a  contract.  See  further,  McMillen  v. 
Lee,  78  111.  433  ;  Clark  v.  Gotts,  1  Bradw. 
(111.  App.)  ir,i  ;  Wallaces.  Ellis,  42  Ind. 
582;  White  v.  Mann,  110  Ind.  74  (A.  d. 
1886)  ;  Burns  v.  Maddigan,  60  N.  H.  197 
(a.  I).  1880)  ;  liundy  v.  Hvde,  50  N.  H. 
116  ;  Cook  V.  Bennett,  5\  N.  H.  85,  93  ; 
Baldwin  v.  Foster,  138  Mass.  at  p.  453 
(a.  d.  1885)  ;  Rogers  v.  Turner,  59  Me. 
116.  After  the  very  fullest  examination  of 
the  authorities,  both  English  and  Ameri- 
can, we  can  but  come  to  the  conclusion 
that  in  England,  on  princijile  and  author- 
ity, the  law  is  well  established,  as  we  have 
stated  it  to  be  ;  and  that,  in  this  country, 
on  principle  and  on  the  overwhelming 
weight  of  authority,  it  is  now  scarcely  less 
so  ;  the  cases  which  have  followed  Kent's 
statement  of  the  law,  and  his  misreading 
of  the  two  cases  in  1  Esp.,  and  the  over- 
ruled case  of  \'an  Valkinburgh  v.  Watson, 
13  Johns.  480,  are,  we  think,  founded  on 
an  entire  misconception  of  the  law. 

But  it  has  been  held,  where  the  defend- 
ant's minor  son,  to  whom  his  father  iind 
given  leave  to  act  for  himself,  and  had 
made  publication  of  the  fact,  and  that  he 
would  not  thereafter  pay  any  debta  of  the 


son,  was  at  home  sick,  and  medical  ser- 
vices were  rendered  to  him  upon  the  credit 
of  his  father,  to  whom,  ia  good  faith,  the 
services   were  charged   at  the  time  ;  tlie 
father  knowing  of    these  services  Ix'ing 
rendered  and  making  no  objection  ;  that 
the  law  implies  a  promise  to  j)ay,  by  the 
father,  on  the  general  ground,  that  while 
one's  minor  children  remain  a  part  of  his 
family  and  household,  and  receive  neces- 
saries, with  the  knowledge  of  the  fathir 
and  without  objection  on  his  part,  it  is 
the   same   thing  as  if  he  received  them 
himself,     or     his    wife  received    them. 
Swain  v.  Tyler,  26  Vt.  9.     See  Deaiie  v. 
Armis,    14   Me.    26,  to  the  same  elleet. 
But,  where  a  son,  who  was  of  fidlagoaiiJ 
had  ceased  to  be  a  member  of  his  father's 
family,    was  suddenly   taken    ill  aiiioug 
strangers,  and,  being  poor  and  in  distress, 
was  relieved  by  the  plaintilf,  it  was  helil 
that  an  express  jn'omise  by  the  lather  to 
pay  the  bill  would  not  sustain  tin;  action, 
Mills    V.    Wyman,    3    Pick.    207.     See 
Cook  V.  Bradley,  7  Conn.  67;  LittlelielJ 
V.  Shee,  2  B.  &  Ad.  811;  Parker  v.  "arter, 
4   Muuf.    273  ;  Wennall  v.  Adnev,  S  B. 
&  P.   249,  note ;    Mcl'herson  v.  "llees,  2 
I'enr.    &    Watts,    521  ;     Penniiiijtim  i', 
Gittings,  2  Gill  &  J.  208  ;  Smitli  r.  Ware, 
13  Johns.    259;    Edwards  v.    Davis,  16 
Johns.    281,    283,  note  ;   Greeves  v.  Mi- 
Allister,  2  Binn.  591  ;  Chandler  r.  Hill, 2 
Hen.   &  M.    124.     And   a  recjuest  by  a 
father  to  attend  his  son,  then  of  full  age, 
and  sick  at  his  father's  house,  raises  no 
implied  promise  on  the  pa't  of  thf  lather 
to  [)ay  for  the  services  rendeied.     Boyd  i\ 
Sappington,  4  Watts,  247. 

A  general  order  from  a  father  tii  supply 
his  daughter  with  such  gooils  as  slie 
wanted,  made  her  his  agent  to  coiitraet, 
and  made  him  liable  for  her  ]MUvliasfs, 
though  siie  exceeded  what  wai  actiiiliy 
necessary  for  her  comfort.  Harper  v. 
Lemons,  33  Ga.  227.  And  thf  only 
ground  upon  which  a  father  can  ii''  in;vle 
liable  for  tho  jmrchases  of  his  son  after  lie 
becomes  of  age,  is  on  the  pronml  that  the 
son,  either  ex]>ressly  or  inipliidly,  lias 
become  his  father's  agent  to  make  tlis 
purchases.  Townsend  v.  Bunihani,  33 
N.  H.  270  ;  Wood  v.  Gill,  1  Coxr  (N.  J.I, 
449.  Sec,  further,  as  to  tln'  litlK'r'i 
liability  for  his  son's  acts  and  imitracts, 
Norris  r.  Dodge,  23  Ind.  190  ;  llau'ertyr. 
Powers,  66  Gal.  368  ;  Baker  v.  MnnJs.  33 
Kan.  580  ;  Brvan  v.  Ja(!kson,  1  dmn. 
288;  Stovall  ».' Johnson,  17  Ala.  N.  s,  H; 
Clinton  v.  Rowland,  24  Barb.  6o4;  Wilkes 
V,  McClung,  29  Ga.  371. 

•See  Matter  of  Marx,  5  Abb.  N.  C  2-5, 
a  decision  of  the  surrogate  court,  as  to  the 


6, 


P^RT  I.] 


SALES  WITH   INFANTS. 


117 


The  conclusion  reached  as  the  result  of  the  American  author- 
ities, reco<i;nizing  and  adopting  the  doctrine  of  Zouch  v.  Parsons  ^ 
is,  that  the  acts  and  contracts  of  infants  genen  lly  are  voidable 
only,  and  not  void;  and  subject  to  their  election,  when  they  become 
of  age,  cither  to  affirm  or  disallow  them ;  they  seeming  generally 
to  hold  that  the  deed  of  an  infant  conveying  lands  is  voidable 
only,  and  not  void ;  unless,  perhaps,  the  deed  should  manifestly 
appear  on  the  face  of  it  to  be  to  the  prejudice  of  the  infant ;  and 
this  upon  the  nature  and  solemnity,  as  well  as  the  operation 
of  the  instrument.  The  distinction  would  seem  to  be  clearly 
covered  by  this  test :  All  the  acts  and  contracts  of  an  infant  to 
which  the  plea  of  infancy  would  be  a  conclusive  answer,  are  void- 
able at  his  instance,  and  not  void.  Such  acts  and  contracts  to 
which  the  plea  of  infancy  would  not  be  a  conclusive  answer  arc 
neither  voidable  nor  void.  The  latter  case  would  include  the 
single  case  of  necessaries,  leaving  all  other  acts  and  contracts 
of  an  infant  within  that  class  which  he  might  affirm  or  disallow 
on  becoming  of  age ;  and,  therefore,  voidable  and  not  void.  An 
infant  is  incapable  of  contracting  so  as  conclusively  to  bind  him- 
self, in  any  case  except  for  necessaries.  Outside  of  this  one  case 
his  acts  and  contracts  are,  we  consider,  clearly,  on  principle,  in 
the  same  category,  and  are  in  his  power  to  affirm  or  disallow,  and 
are  tliereforc,  voidable  in  the  sense  that,  at  his  instance,  they  may 
be  avoided.  Where  contracts  are  manifestly  to  his  prejudice,  the 
class  of  acts  by  which  such  contracts  may  be  aflirmed  by  the 
infant,  may,  manifestly,  be  very  different  from  cases  where  the 
acts  or  contracts  are  for  his  benefit,  but  this  only  goes  to  the  evi- 
dence of  affirming,  and  docs  not  show  that  the  acts  or  contracts 
of  the  infant  are  per  se  void.  Any  contract  which  one  of  full  age 
can  make  can  be  affirmed  by  an  infant  on  his  coming  of  age ;  the 
affirmation  being  of  the  nature  of  a  new  contract ;  the  previous 


'i 


>t 


;■!!■ 


rifiht  nf  a  jiaront  to  lie  allowed  for  the 
iiiiiinteiiaiR'f  of  his  fluid  out  of  the  hitter's 
si']iiiiati'  istate.  We  ((uestiou  the  conect- 
ncssoftliisdeeision.  See,  holding;  critt^vT, 
except  where  the  father  is  iii  iiuli<;cnt 
eirciinistaiiccs,  Freeman  v.  Coit,  27  Hun 
(N'.  v.),  448;  Hines  v.  Bryan,  25  Gti.  6H6 ; 
Tompkins  V.  Tompkins,  17  N.  J.Eq.  303  ; 
Myers  v.  Mvers,2  MeCord  (S.  C. ),  214;  Ad- 
'lisnn  V.  Howie,  2  Bland  C'h.  (lid.)  606; 
Kinsley  v.  The  State,  98  Ind.  351  ;  Burke 
f.  Turner,  85  N.  C.  500  ;  Walling's  Case, 
35  N.  ,T.  Eq,  105.  And  then,  the  nroper 
eoursi'  (if  the  parent  is  vo  obtain  autliority 
from  till'  court  having  jurisdiction  to  make 
such  exjienditure  as  guardian.  Watts  v. 
I'tofle,  HI  Ala.  656;  Hnase  v.  Koehscheid, 
Mmh  ()6;  Hey  ward  v.  Cuthbert,  4  Des. 
•^'l'  (S-  C. )  445.    A  step-father  who  was 


appointed  guardian  to  Ids  step-son,  was 
allowed  out  of  the  stefi-soii's  estate  for 
maintenance  of  his  step-son  as  well  before 
as  after  the  appointment.  In  re  Besondy, 
32  Minn.  38.".. 

In  «  happle  v.  Cooper,  13  M.  &  W.  252, 
an  infant  widow  was  held  buund  by  her 
contract  for  the  furnishing  of  the  funeral 
of  her  husban<l,  who  had  left  no  property 
to  1h3  administered.  And  in  Jenner  v. 
Walker,  19  L.  T.  N.  s.  398  {scctis  Law 
Reptr.),  it  was  held  that  presents  to  a 
lady  vi'hc  8ubse(iuently  became  the  defend- 
ant s  wife,  might  be  necessaries.  And  in 
Butler  V.  Hreck,  7  Mete.  164,  that  a  hus- 
band, though  nn  infant,  is  liable  for  debts 
contracted  by  Ids  wife  before  marriage. 

1  3  Burr.' 1804. 


=f    li  i. 


;i 


118 


COMMENTARIES  ON   SALES. 


[book  II. 


i  m:  I 


. 


B<  1 1 


IS 


♦    II  t 


m 


contract  of  the  infant,  except  in  the  exceptional  case  of  neces- 
saries, being  not  binding  on  him ;  and,  therefore,  wlien  he  be- 
comes legally  able  to  act,  may  be  avoided  by  him.  In  Tucker 
V.  Moreland  ^  the  court  held,  that,  1.  An  infant  may  avoid  his 
voidable  acts  by  different  means,  according  tj  the  nature  of  the 
act  to  be  avoided.  2.  A  conveyance  by  bargain  and  sale,  the 
infant  remaining  in  possession,  may  be  avoided  by  a  second  con- 
veyance by  bargain  and  sale,  with  a  warranty  against  all  claims 
under  the  bargainor.  3.  A  mere  recognition  of  a  conveyance 
by  an  infant  docs  not  confirm  it;  the  act  of  confirmation  should 
establish  an  intention  to  confirm  it,  with  knowledge  that  it  was 
voidable.  ^ 

Where  to  a  pica  of  infancy,  in  an  action  for  goods  supplied, 
the  plaintiff  replies  that  they  were  necessaries,  the  question  of 
necessaries  or  not  necessaries  is  one  of  fact,  and,  therefore,  for 
the  jury.  But,  like  all  other  questions  of  fact,  it  should  not  be 
left  to  the  jury  by  the  judge,  unless  there  is  evidence  on  which 
they  can  reasonably  find  in  the  affirmative.^ 

The  plaintiff  sued  the  defendant,  a  minor,  for  the  price  of  a 
pair  of  jewelled  solitaires,  worth  <£25,  and  of  an  antique  goblet 
worth  iil5  15s.,  which  the  plaintiff  knew  when  he  supplied  it  was 
intended  for  a  present.  Tlie  defendant  was  the  son  of  a  baronet, 
with  no  independent  establishment,  and  in  the  receipt  of  au 
allowance  of  .£500  a  year.  The  question  whether  these  articles 
were  necessaries  or  not  was  left  to  the  jury,  who  found  that 
they  were,  and  a  verdict  for  the  plaintiff  for  £iO  15s.  was  ac- 
cordingly entered.  The  Court  of  Exchequer  subsequently  hold, 
first,  that  there  was  no  evidence  for  the  jury  of  the  goblet  beins,'  a 
necessary,  and  that,  therefore,  the  verdict  ought  to  be  reduced  by 
its  price ;  and,  secondly  (BramwcU,  B.,  dissenting),  that  there  was 
evidence,  which  was  properly  left  to  the  jury,  and  from  which 
they  might  fairly  conclude,  that  the  solitaires  were  necessaries.  • 


1  10  Peters,  58. 

"  The  following  cases  cover  the  points 
involved  :  Zouuh  v.  Parsons,  3  Burr.  1804; 
]  W.  Blk.  575;  Hussell  v.  Lee,  1  Lev.  86; 
Fisher  v.  Mowbray,  8  East,  330 ;  Haylis  v. 

nineley,  3  M.  &  S.  470  ;  v.  Hando- 

cock,  19  Ves.  383;  Saunders  v.  Mann,  1 
H.  Blk.  75;  Keane  v.  Boycott,  2  H. 
Blk.  515  ;  Thompson  v.  Leach,  3  Mod. 
310;  Holmes  i;.  Blogg,  8  Taunt.  508; 
Oliver  v.  llcndlot,  13  Mass.  239;  Whitney 
V.  Dutch,  14  Mass.  462;  Con  roe  v.  Bird- 
sail,  1  Johns.  Cas.  127;  Roof  v.  Stafford, 
7  Cow.  180,  181  ;  Jackson  v.  Burchin, 
14  Johns.  126;  Boston  Bank  v.  Chamber- 
lain, 16  Mass.  220;  Jackson  v.  Carpenter, 


11  Johns.  539;  Austin  v.  Patton,  11  S.  i 
R.  311;  Stokes  v.  Brown,  3  I'iniiov,  311; 
Reed  v.  Biitchelder,  1  Met.  55St ;  Munin 
V.  Mayo,  10  JIass.  137;  Thompson  v.  Lay, 
4  Pick.  48 ;  Goodsell  v.  Myers,  3  Wfinl. 
479  ;  Robbins  v.  Eaton,  10  N.  II.  .Wl; 
Roberts  v.  Wiggin,  1  N.  H.  74;  l)earl"ira 
V.  Dearborn,  4  N.  H.  441;  Ford  v.  Pin'- 
lips,  1  Pick.  202;  Hale  v.  Gerrisli,  8  N.  !!• 
374  ;  Thrupp  v.  Fueldes,  2  I'.sn.  tii"' : 
Hitchcock  V.  Tyson,  2  Esp.  482;  i'.ij."'l";v 
V.  Kinney,  3  Vt.  353 ;  Dubose  v.  W  Ik'I- 
don,  4  McCord,  221.  „ 

8  Rvder  v.  Wombwcll,  L.  R.  i  Ex.  32. 

«  Ibid.,  L.  R.  3  Ex.  90. 


PART  I.] 


SALES  WITH  INFANTS. 


119 


On  appeal,  the  Court  of  Exchequer  Chamber  held,  reversing  the 
judgment  of  the  court  below  on  the  second  point,  that  there  was 
no  evidence  of  either  article  being  a  necessary,  and  that  a  nonsuit 
ought  to  have  been  directed.^ 

The  late  case  of  Johnston  v.  Marks  ^  was  an  action  by  the 
plaintiff,  a  tailor,  against  the  defendant  for  the  price  of  clothes 
supplied.  The  defence  was  infancy,  to  which  the  plaintiff  replied 
that  the  goods  supplied  were  necessaries.  It  was  proved  at  the 
trial  that  the  goods  were  supplied  to  the  defendant  when  under 
age.  Tlie  defendant's  solicitor  proposed  to  prove  that  the  defend- 
ant was  sufficiently  supplied  with  clothes  at  the  time  of  liis  pur- 
chases from  the  plaintiff.  The  judge,  on  the  authority  of  Ryder 
V.  Wonibwell,^  held  the  evidence  inadmissible,  and  gave  a  ver- 
dict for  the  plaintiff  for  the  price  of  such  of  the  clothes  as  he 
held  were  necessaries.  Three  of  the  members  of  the  Court  of 
Appeal,  who  sat  as  a  divisional  court  of  the  Queen's  Bench  di- 
vision, held,  that  the  evidence  was  wrongly  rejected.  Lord 
Esher,  M.  R.,  thus  laid  down  the  principles  applicable  to  this 
ease :  "  It  lies  upon  the  plaintiff  to  prove,  not  that  the  goods 
supplied  belong  to  the  class  of  necessaries  as  distinguished 
from  that  of  luxuries,  but  that  the  goods  supplied  when  sup- 
plied were  necessaries  to  the  infant.  The  circumstance  that 
the  infant  was  sufficiently  supplied  at  the  time  of  ihe  additional 
supply  is  obviously  material  to  this  issue,  as  well  as  fatal  to 
the  contention  of  the  plaintiff"  with  respect  to  it."  The  deci- 
sion in  Ryder  i».  WombwelP  was  reflected  on,  and  as  the  court 
added,  that,  should  the  question  be  raised  before*  tlicm  sitting 
as  a  division  of  the  Court  of  Appeal,  they  would  be  prepared 
to  give  the  same  dcci.iion  as  they  were  then  doing,  Ryder  v. 
Wombwell'^  has,  in  effect,  been  overruled.  Liudley,  L.  J.,  re- 
ferred to  it  as  being  contrary  to  current  authority ;  adding,  "  If 
an  infant  can  be  made  liable  for  articles  which  may  be  neces- 
saries, without  proof  that  they  are  necessaries,  there  is  an  end 
to  the  protection  which  the  law  gives  him.  If  he  has  enough 
of  fcuch  articles,  more  cannot  possibly  bo  necessary  for    him." 


1  Ml.,  L.  R.  4  Ex.  32.  And  soe,  on 
tlin  siiiufi  (|U('stion,  Ompple  v.  Cooper,  13 
M.  &  W.  '252,  258  ;  Muddox  v.  JVIiller,  1 
M.  &  S.  738;  Wharton  v.  Mackenzie,  5 
<ii.  H.  ti(i() ;  Harrison  i-.  Fane.  1  M.  &  G. 
:<Mi  Riirghart  v.  Hall,  4  M.  &  W.  727; 
Biiidiiirt  y.  Aiifinrstein,  6  C.  &  P.  6y0; 
Riiiaiix  V.  Ti'aklc,  8  Kx.  380  ;  Dalton  «;. 
<;ilil>,  0  Bins.  N.  C.  198;  liainsibrd  v. 
FiMiwiok,  Carter,  215  ;  Grt'cne  v.  Chester, 
2  Rolli.,  144  ;  Ive  v.  Chester,  Cro.  Jac. 
560 ;  WittingUani  v.  Hill,  Cro.  Jac.  494 ; 


Hands  v.  Slavey,  8  T.  R.  578  ;  Brnyslmw 
V.  Katon,  7  Scott,  183  ;  Cook  v.  Deaton, 
3  C.  &  1'.  114;  Stuediiian  v.  Hose,  Car.  & 
M.  422  ;  I'oters  v.  Fleniinc;,  G  M.  &  W. 
46;  Brooker  v.  Scott,  11  M.  &  \V.  67. 
With  the  exception  of  these  two  last- 
named  cases,  the  j^eneral  current  of  the 
decisions  is  th^  the  question  of  neces- 
saries is  for  the  jurv. 

a  19  Q.  B.  Div.  509,  July  27,  1887. 

B  L.  K.  b  Ex.  90  ;  L.  li.  4  Ex.  32. 


t 


f'i 


Iff 


PiW 


<■ 


ii: 


^ 


U    - 


!' 


;      i 


120 


COMMENTARIES  ON   SALES. 


[book  II. 


Lord  Eshcr  said  that  in  Ryder  v.  Wombwell  ^  the  Court  of  Ex- 
chequer Chamber  had  before  them  cases  which  were  inconsist- 
ent with  the  view  taken  in  the  court  below,  but,  holding  as  they 
did  that  the  goods  supplied  could  not  possibly  be  necessaries, 
there  was  no  occasion  for  them  to  decide  whether  this  evidence 
was  relevant.  A  divisional  court  has  since,  in  Barnes  v.  Toye,^ 
decided  that  the  evidence  is  relevant,  and  I  entirely  agree  with 
the  decision.'^ 


■iM 


r  I 


1  L.  R.  4  Ex.  32. 

2  13  Q.  B.  Div.  410. 

"  .lohnston  v.  Marks,  19  Q.  B.  Div.  at 
p.  511.  And  see  t'urthor,  the  cases  cited 
in  the  previous  note,  and  Foster  v.  Red- 
grave, 4  Ex.  'A'),  in  note  ;  Bainbiidge  v. 
Pickering,  2  VV.  lilk,  i;525;  Braysiiaw  v. 
Eaton,  5  Biug.  N.  ('.  231  ;  7  Scott,  183. 

In  Jenner  v.  Walker,  19  E.  T.  N.  s. 
399,  the  decision  in  Ryder  v.  Wombwell, 
3  Ex.  90,  4  Ex.  32,  was  very  much  re- 
marked on.  Cockburn,  C.  J.,  there  said  : 
"I  really  cannot  understand  it,  unless  it 
means  that  it  is  to  be  a  ([uestion  of  law 
for  the  judge  to  determine  whether  the 
articli^s  (lisputed  are  or  are  not  iieoessarii^s. 
If  that  is  to  bo  taken  to  be  law,  of  course 
I  must  act  upon  it;  but  I  should  certainly 
have  preferred  the  law  as  it  was  previously 
understood  to  be,  —  that  it  was  for  the 
jury  to  say  what  articles  were  reasonably 
necessary  with  reference  to  the  position  of 
the  defendant,  the  infant."  Coleridge, 
Q.  C.  (counsel  in  the  cas(^),  in  reply  to 
the  chief  justice,  said :  "  I  am  bound  to 
say  that  I  think  Ryder  v.  Wombwell  does 
in  elfect  come  to  what  you  have  stated; 
nameiy,  that  it  is  not  for  the  jury,  but  for 
the  judge,  to  say  whether  an  article  is 
necessary.  That,  certainly,  is  what  it 
came  to,  for  tlio  jury  found  the  solitaires 
(shirt-fasteners)  necessary,  and  the  court 
directed  judgment  to  be  entered  for  the 
defendant.  That,  certainly,  is  quito  con- 
trary to  a  long  series  of  decided  cases,  and 
to  the  law  as  it  has  always  been  understood 
to  be;  but  that  is  wliat  it  comes  to."  Cock  ■ 
burn,  C.  J.,  assented  to  this  ;  and  though 
he  ex]>ressed  himself  as  bound  by  the 
holding  in  Ryder  v.  Wombwell,  he  so 
emphatically  ilissented  from  it  that  he 
left  the  question  to  the  jury  as  to  the 
articles  being  necessaries  for  which  the 
action  was  brought ;  and  the  jury's  find- 
ing in  th  J  matter  agreeing  with  his  own, 
the  decision  in  Ryder  v,  Wombwell  was 
not  allowed  to  affect  the  case. 

The  other  point  decided  in  Ryder  v. 
Wombwell  (supra)  was  that  where  an  in- 
fant is  sued  for  the  price  of  goods  supplied 
to  him  on  crc  "'t,  eviilenco  to  prove  that  at 
the  time  the  goods  were  supplied  to  him 
he  was  already  sulRciently  provided  with 


articles  of  a  similar  description,  is  inadmis- 
sible, unless  it  is  also  shown  that  the  |)laiii. 
titf  had  knowledgt;  of  tin-  fact.  In  Riinics 
v.Toye,  13  ti.  B.  Div.  410,  Ryder  u.Wuiiib- 
well  is  dissented  from  on  both  puiiits ; 
and,  as  we  have  seen  in  the  text,  tliu 
holding  in  Barnes  v.  Toye  was  fully  ap- 
proved and  acted  on  in  Johnston  v.  .Marks, 
19  Q.  B.  Div.  509.  In  Barnes  v.  Tuve, 
13  y.  U.  Div.,  at  p.  412,  Field,  J.,  di'alt 
with  both  these  (piestions.  He  says : 
"We  have  to  deal  with  the  (pie>tion 
whether  an  infant  can  bind  hiniself  for 
things  which  are  necessaries,  in  the  sense 
of  belonging  to  the  class  of  necessaries, 
and  being  suitable  to  his  jrositiou  iu  life, 
if  they  are  not  really  necessaries  in  the 
sense  that  he  couhl  do  without  them.  In 
Ryder  v.  Wombwell,  L.  R.  3  Ex.  90,  this 
point  was  decided  in  favor  of  the  tniilcs- 
man  ;  for  the  court  then  held  (Braiuufll, 
B.,  dissenting)  that  evidence  to  show  that 
the  infant  was  already  sulliciently  supplied 
was  properly  rejected,  as  it  was  nut  pro- 
posed to  show  that  the  jdainiilf  liad 
Icnowledge  of  that  fact.  If  there  had 
been  no  authority  against  this  decision, 
1  should  have  declined  to  go  into  tlie 
question  whether  it  was  right ;  but  there 
is  such  authority,  both  in  former  and  iu 
modern  times.  In  Bainbridgo  v.  Pirker- 
ing,  2  W.  Blk.  132,5,  and  in  Brayshaw  v. 
Eaton,  5  Bing.  N.  C.  231,  the  (juestion  of 
whether  the  defendant  was  already  pro- 
vided with  clothes  was  considered  as  jier- 
tinent  to  the  incpiiry  whether  those  which 
the  jdaiutilf  suiqAied  were  necessaries; 
and  the  learned  judges  who  heard  the 
case  of  Foster  v.  Redgrave,  E.  R.  4  Kx. 
35,  n.  8,  couM  not  distinguish  that  ease 
from  the  two  last  mentione<l,  which  tliey 
accordingly  followed.  Under  these  i  ir- 
cumstances,  1  am  of  opinion  t/ift  flic  qnm- 
lion  should  have  been  left,  to  the  jury 
whether  these  were  necessaries,  taking 
into  consideration  not  mendy  tin'  charac- 
ter of  the  goods,  but  the  ipiestion  whether 
the  defendant  was  in  possession  of  snch 
a  supply  of  goods  of  the  same  descriptinn 
that  he  was  not  in  want  of  these."  The 
same  points  are  very  clearly  covered  hy 
the  judgment,  in  the  same  case,  of  l.npfs, 
J.,  who  says:    "A  contract  by  an  infant 


H  ■  ■  -n] 


P\RT  I.] 


SALES  WITH   INFANTS. 


121 


A  deed  by  an  infant  to  secure  the  repp>ymcnt  of  money  ad- 
vanced for  necessaries  is  voidable.     Therefore,  when  the  plain- 


for  the  supply  of  goods  to  him  cannot  be 

eiilorci'd  iiulfss  the  articles  be  necessaries, 
tli(^  policy  of  the  law  being  directed  to  the 
liiutcitioii  of  infants.  In  point  of  fact, 
a  tnuk'.siiian  dealing  on  credit  with  an 
infant  iloes  so  at  Ids  peril,  and  mnst  lose 
his  iiiDUi'y  (that  is,  if  the  infant  does 
nut  voluntarily  pay  him),  unless  he  can 
[irove  that  the  goods  supplied  were  neces- 
saries for  the  infant  according  to  his  sta- 
tioa  ill  lif'.  That  being  the  law,  we  come 
to  till'  i|urstion,  AVhat  are  necessaries  ?  To 
(liU'iiiiiiie  this,  we  must  take  into  account 
wiiat  the  infant  had  at  the  time  of  giving 
the  onliT.  For  example,  a  watch  may  be 
nrimd  fitcie  in  some  cases  a  necessary  ; 
mit  if  it  tiu'ned  out  that  the  infant  was 
already  siijiplied  with  a  watch  or  watches, 
the  one  ordered  could  not  be  a  necessary. 
It  is  .said,  however,  that,  even  if  regard 
must  bi'  had  to  the  supply  which  the  in- 
fant had  at  the  time  of  the  order,  where 
it  is  in  the  tradesman's  knowledge  that 
the  iiifiiit  is  amply  supjilied,  yet  this  is 
not  the  case  if  the  tradesman  is  ignorant 
of  that  fact.  If  this  contention  were  eor- 
ri'ct,  the  protection  given  to  the  infant 
would  de]i('nil  entirely  on  what  might  be 
the  state  of  knowledge  of  the  tradesman, 
and  one  elfcct  would  be  to  deprive  the 
infant  of  the  protection  intended  to  be 
extended  to  him  liy  the  law.  In  my  view 
it  is  inuiiatfrial  whether  the  plaintitfs  did 
or  did  not  know  of  the  existing  supply, 
just  as  it  is  immaterial  whether  they  did 
c  did  not  know  that  the  defwidant  was  a 
minor.  In  this  particular  case,  evidence 
as  to  the  amount  of  clothes  the  defendant 
possessed  at  the  time  when  tiie  order  re- 
lied on  was  given  was  adndssible  ;  and 
[euvering  iioth  the  jioints  badly  decided  in 
Uyder  r.  W'ombwell]  the  jury  should  hnvc 
hern  Inid  thai  in  arrivinij  iit  a  condiisiun 
whether  the  (jondn  supplied  by  the  plain/ill's 
xeere  uecessiiries  or  not,  thei,  should  con- 
siikr  irlidhrr  the  defendant  urts  already 
mijicienthj  supplied." 

But  vhiue  it  is  palpable  that  the  ar- 
ticles could  not  be  necessaries,  tlu^n  there 
i^  no  i|uestion  for  the  jury,  and  the  plain- 
tilf  should  bi.  nonsuited'.  This  was  the 
li'ildiug  in  Foster  t>.  Redgrave,  L.  1{.  4  E.x. 
35,  n.  8,  where  the  evidence  showed  that 
tlie  infant  was  already  provided  with  an 
aHiple  wardrobe  at  the  time  the  goods 
sued  for  were  ordered  and  supplied,  al- 
though the  jilaintiff  did  not  know  the 
fict,  and  the  rule  for  a  nonsuit  was  made 
alisolute.  The  cases  of  Hainbridge  v, 
Pickering,  2  W.  Blk.  1325,  and  Bray- 
slww  1-.  Katon,  7  Soott,  183,  are  in  accord 
with  this  .lohling.     See,  further,  Daltoo 


V.  Gib,  7  Scott,  183;  Rolfe  v.  Abbott,  6 
C.  &  P.  286  ;  Ursuston  v.  Newcomen,  6 
N.  &  M.  454  ;  Fold  v.  Fothergill,  IVake, 
N.  V.  229  ;  Baker  v.  Keen,  2  Stark.  501. 
The  decisions  in  this  country  harnioni/.e 
with  the  well-decided  cases  in  England 
on  both  points  which  were  misdecided  in 
liyder  v.  Woinbwell,  L.  1{.  3  Ex.  90; 
L.  11.  4  Ex.  32.  On  the  point  as  to  the 
fact  of  articles  being  necessaries  being  sub- 
ject to  bo  rebutted  by  showing  that  the 
infant  had,  at  the  time,  asutlicieiit  supply, 
that  doctrine  is  as  laid  down  by  (Ireeiileaf. 
§  306,  Gr.  on  Ev.  And,  although  Eng- 
lish authorities  are  mainly  cited  for  that 
position,  numerous  authorities  iii  this 
country  sustain  it.  (See  Hi  vers  v.  (!rcgg, 
5  Rich.  E(p  {>S.  C. )  274,  where  the  law  in 
the  case  is  laid  down  in  virtually  the  same 
language  as  has  been  used  in  the  latest 
English  cases,  sncli  as  Johnston  v.  Marks, 
19  C.).  B.  Div.  509;  Barnes  v.  Toye,  13 
Q.  B.  Div.  410,  and  the  other  cases  ap- 
jiroved  by  these.  In  Rivers  v.  Gregg, 
Dargan,  Ch.,  delivering  the  judgment  of 
the  court,  said  ;  "  He  who  deals  with 
an  infant  is  presumed  to  know  of  his 
infancy.  He  is  bound,  at  his  own  i)eril, 
to  make  the  iiKjuiry.  It  makes  no  dill'er- 
ence  whether  the  inquiries  result  in  correct 
information  or  the  reverse.  It  is  no 
excuse,  if  he  honestly  suitposed,  from  his 
a|ipeaiaiR'e  or  other  circumstances,  that 
the  infant  was  an  adult.  The  protection 
of  this  defenceless  class  of  persons  would 
be  ver}"  inadequate,  if  this  piincii)le  is  not 
further  extended.  The  only  safe  rule,  for 
the  security  of  infants  and  thidr  estates, 
is,  that  he  who  credits  the  infant  for 
necessaries,  should  be  liound  to  know 
whether  the  infant  has  been  supjdied  with 
a  sudiiient  amount  of  those  articles  by 
the  parent  or  guanlian,  or  from  some 
other  source.  The  coiisenueiice,  if  atiy 
other  rule  than  this  prevails,  would  be,  that 
an  infant's  estate  might  be  made  liable 
for  double  the  amount  of  necessuries  that 
Were  necessary  for  him.  ,  .  .  The  conclu- 
sion is,  that  an  infant  who  is  furnished 
with  necessaries,  or  the  means  in  cash  cf 
jirocuring  them,  by  his  iiarent  or  guardian, 
or  from  any  other  source,  is,  primd  facie, 
not  liable  for  necessaries  supplied  by  a 
stranger  or  tradesman  on  a  credit ;  and 
that  the  party  who  seeks  to  evade  the 
operation  of  the  rule,  and  bring  his  claim 
under  an  exception,  must  jirove  the  desti- 
tution and  necessities  of  the  infant." 
Rivers  v.  Gregg,  5  Rich.  Eq.  279,  281. 
See,  also,  Connolly  Ads.  Hull,  3  McCord, 
6;  Edwards  v.  lliggins,  2  MeCord  Ch. 
21 ;    Jones  i'.  Colvin,  1  McMullan,  14  ; 


i 


M    » 


m 


I  r 


;  ( 


i>(n 


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'■  I  i 


M^'rl' 


122 


COMMENTARIES  ON  SALES. 


[book  II. 


tiff  has  advanced  money  to  an  infant  partly  in  order  to  pay 
for  necessaries,  and  he  had  by  deed  assigned  to  the  plaintiff  his 
reversionary  interest  as  a  security  ;  in  an  action  brought  against 
the  infant  on  his  attaining  twenty-one,  for  an  account  of  money 
advanced  to  him  and  expended  on  necessaries,  and  for  repay- 
ment, and  also  claiming  that  the  same  might  be  declared  to  be 
a  charge  on  his  reversionary  interest ;  it  was  held,  that,  though 
the  plaintiff  was  entitled  to  an  account  and  an  order  for  repay- 
ment, the  deed  was  not  binding  on  the  infant,  and  the  security 
could  not  be  enforced.^ 


Johnson  v.  Lines,  6  Watts  &  S.  80  ; 
Walling  V.  Toll,  9  Johns.  141  ;  Nicholson 
V.  Wilborn,  13  On.  4(57,  474  ct  scq. ; 
Nicholson  v.  Spencor,  11  Ga.  607.  In 
this  last-named  case,  the  court  say:  "It 
is  a  general  rule  of  law,  that  when  a 
tradesman  furnishes  an  infant  with  goods 
on  credit,  it  is  inouinbent  on  him  to  sliow 
that  the  articles  furnished  were  neees- 
saries,  according  to  the  circumstances  and 
condition  of  life  of  such  inl'ant,  before  he 
can  recover  the  price  of  the  goods  so 
furnished.  Parents  and  guardians  ai'e  the 
best  judges  as  to  what  are  necessaries  for 
their  children  and  wards  ;  and  whenever 
a  tradesman  furnislies  them  with  articles, 
in  addition  to  what  their  i)arent3  and 
guardians  liave  provided  them,  it  is 
incumbent  on  such  tradesman  to  show  a 
necessity  therefor,  to  entitle  him  to  recover 
the  price  of  the  articles  so  furnished.  The 
tradesman  trusts  the  infant  at  his  peril." 
N  'liolson  V,  Spencer,  11  Ga.  at  p.  611. 
T!  s  is  the  long  and  .thoroughly  well- 
estalilished  law  of  this  country,  and,  as 
we  have  intimated,  accords  with  the  estab- 
lished law  in  Euglanil,  temporarily  broken 
in  upon  by  the  iiisa])pioved  case  of  llvder 
1'.  Woinbwell,  L.  K.  3  Ex.  90;  L.  U.  4 
Ex.  32. 

So,  too,  the  law  in  this  country 
agrees  with  that  of  England,  that  the 
question  as  to  what  are  necessaries  is  a 
mixed  one  of  law  and  fact.  Thus,  Green- 
leaf  correctly  lays  down  the  law  of  both 
countries,  that  necessaries  are  such  things 
as  are  useful  and  suitable  to  the  party's 
state  and  coiulitiou  in  life,  and  not  merely 
such  as  are  ronuisite  for  bare  subsistence. 
And  of  this  tlie  juiy  are  to  judge,  under 
the  advice  and  control  of  the  court.  Gr. 
on  Ev.  §  365.  The  great  mass  of  the 
English  cases  we  have  cited  in  this  note 
sustain  this  statement  of  the  law.  The 
authorities  in  this  country  are  to  the  same 
effect.  Thus  in  Johnson  v.  Lines,  6  W. 
&  S.  80,  the  court  holds  that  what  are 
necessaries  is  a  question  of  mixed  law  and 
fact;  but  that  an  over-suj-.ply  of  goods 
otherwise  proper  ceases  to  be  a  supply  of 


necessaries  as  to  the  excess,  and  that  while 
the  (juestion  of  extravagance  belongs  to 
the  jury,  where  the  sujiply  has  been  so 
grossly  profuse  as  to  shock  the  sense,  it  is 
the  business  of  the  judge  to  say  so  as 
matter  of  law,  and  charge  that  there  can 
be  no  recovery  for  more  than  was  ubsoluiely 
necessary.  So,  in  Merriam  v.  Cuniiiiiy- 
ham,  6.j  iSIass.  40,  liigtdow,  J.,  said; 
"It  is  the  well-settled  rule  that  it  is  the 
province  of  the  court  to  determine  whether 
the  articles  sued  for  are  within  the  class 
of  necessaries,  and  if  so,  it  is  the  proper 
duty  of  the  jury  to  pass  nyion  the  ([Ues- 
tions  of  the  quantity,  (juality,  and  tlieir 
adaptation  to  the  condition  and  wants  of 
the  infant."  See  Bent  v.  Manning,  10  Vt. 
225,  230;  Stanton  v.  Willson,  3  Day 
(Conn.),  37,  56  ;  Owings  v.  Trotter,  1  liilib 
(Ky.),  157  :  Phel[)s  i'.  Worcester,  II 
N.  n.  51  ;  Swift  V.  liarnett,  61  Mass. 
436;  20  Am.  Jur.  2S3  ;  Heeler  i-.  Vmuig, 
1  McCord,  572.  See  as  to  nccessuiies  the 
late  case  of  House  u.  Alexander  (.v.  D. 
1885),  105  Lul.  109. 

1  Martin  v.  Gale,  4  Ch.  D.  428.  See 
further,  on  the  jioint  involved  in  this  case, 
Marlowf.  i'ittiehl,  1  I'.  Wnis.  558;  Jeiiner 
V.  Morris,  3  l)e  G.  F.  &  J.  45  ;  Co.  Litt. 
171  «;  In  re  Howarth,  L.  li.  8  Ch.  415, 
418  ;  Maddon  v.  White,  2  T.  U.  15l»,  161; 
Lumsden's  Case,  L.  1{.  4  Ch.  31.  Not- 
withstanding the  holding  in  some  of  tliese 
cases,  it  is  now  clear  that  all  an  infant's 
contracts  are  voidable,  except  tliuse  for 
necessaries,  for  which,  for  his  own  protee- 
tion,  ho  is  personally  liable  even  during 
his  minority.  On  the  other  hand,  none 
of  such  contracts  are,  at  connnon  law, 
absolutely  void,  to  the  extent  that  they 
cannot  be  ratified  by  the  infant  on  attain- 
ing full  age.  In  many  of  the  eases  the 
term  "void"  means  no  more  than  that  the 
infant's  contract  cannot  be  enforced  with- 
out ratihcation.  See  Strsrin  v.Wri^'lit,?  On. 
568 ;  Bryan  y.  Walton,  1 4  <  ia.  185;  Williams 
V.  Brown,  34  Me.  594  ;  Baker  v.  l/'vett, 
6  Mass.  87  ;  Oliver  v.  Hondlet,  13  Mass. 
237;  Whitney  v.  Dutch,  14  Mass.  4r.7 ; 
Thompson  v.  Hamilton,  12  Pick.   425: 


PART  I.] 


SALES  WITH   INFANTS. 


123 


III  Irvine  v.  Irvine^  it  was  claimed  that  an  infant's  deed  of  real 
estate  was  void  because  of  his  infancy.     But,  the  Supreme  Court 


KJfierton  v.  Wolf,  0  Grav,  453  ;  McCoy  v. 

HiiU'iiiaii,  b  Cow.  8-t;  Alcirich  i'.  Ahnilmiu.s, 
Hill  &  I).  Suiiii.  (N.  V.)  423  ;  Statlbrd  v. 
Koiif,  !•  Cow.  t)"J6  ;  Slocuin  v.  Hooker,  13 
lJ:iil>.  Mti;  Wheatoii  i;.  East,  6  Yurg.  41; 
liaill'oid  I'.  Wustcott,  1  Dess.  (S.  C.)  596. 
But  wlicii;  gooils  art)  sold  to  an  infant  on 
iTi'ilit,  and  ho  avails  himself  of  his  infancy 
to  avoid  jKiyuiunt,  the  vendor  may  reelaiu) 
till.'  gdods,  us  having  never  parted  with  the 
|iruiii'ity  in  them.  Badger  v,  Phinney, 
15  .Mass.  359.  Where  an  Infant  bought  a 
horse,  fur  which  he  paid  $75  in  cash  and 
ffi\ii  a  mortgage  for  the  balance,  and  then 
avuiiliMl  the  mortgage,  it  was  held  that  the 
seller  had  a  riglit  to  retake  the  horse  — 
whli.'h,  ill  the  mean  time,  had  been  injured 
tiv  the  infant  —  witliout  refunding  the 
875.  Heath  v.  West,  28  N.  H.  101.  See 
Liiey  V.  Bundy,  'J  N.  H.  298  ;  Hunt  v. 
Silk, 5  Ka.st,44'J  ;  Holmes  v.  Blagg,8  Taunt. 
508;  Coriiet).  Overton,  10  Bing.  252;  Farr 
V.  Sumner,  12  Vt.  28;  Fitts  v.  Hall,  8 
N.  II.  441  ;  Uoberts  V.  Wiggin,  1  N.  H.  71  j 
Weed  V.  lieede,  21  Vt.  500.  Where  an 
infant  rescinds  a  contract  made  by  him  for 
the  sale  of  jiersonal  property,  and  seeks  to 
recliiini  the  jiroperty  or  its  value,  he  must 
restore,  ur  oiler  to  restore,  the  consideration 
received,  before  he  can  sustain  an  action  for 
the  property  sold.  Carru.  Clough,26  N.  H. 
2S0;  Ketehen  v.  Lee,  11  Paige,  107; 
Hubbard  c.  Cummings,  1  Greenl.  13 ; 
Tuft  r.  Pike,  14  Vt.  409  ;  Butiington  v. 
Uerrish,  15  Mass.  156  ;  Smith  v.  Evans, 
5  Humph.  70  ;  Holmes  y.  Blogg,  8  Taunt. 
508 ;  lioberts  v.  Wiggin,  1  N.  H.  73  ; 
liouf  V.  Stafford,  7  Cow.  182  ;  Smith  v. 
Evans,  24  Humph.  (Tenn.)  70.  Where 
an  iiiliuit  had  written  her  name  on  the 
back  of  stock-certificates,  by  means  of 
which  her  guardian  sold  the  stock,  it  was 
held  that  she  could  avoid  the  sale  on  the 
j,Mound  of  infancy,  even  if  she  had  signed 
lii'r  name  to  enable  her  guar<lian  to  effect 
the  Side.  Smith  v.  Baker,  42  Hun,  504 
(A,  I).  ISSfi).  See  Aekley  v.  Dygert,  33 
liurb.  17ti;    Brown  v.  AlcCome,  5  Sandf. 

tn. 

Parsons,  in  his  work  on  Contracts 
(Vul.  1.  p.  322),  says  ;  "If  an  iid'ant  ad- 
vances money  on  a  voidable  contract  which 
he  afterwards  rescinds,  he  cannot  recover 
this  money  back,  because  it  is  lost  to  him 
by  his  own  act,  and  the  privilege  of  infancy 
does  not  extend  so  far  as  to  restore  the 
money  utdess  it  was  obtained  from  him 
by  fraud."  In  the  late  case  of  House  v. 
Alexander,  105  Ind.  109  (a.  I).  1385),  it 
is  said  of  this  proposition  that  "it  is  not 


and  never  was  the  law."  It  has  also  been 
repudiated  in  other  cases,  expressly  in 
Uobinson  v.  Weeks,  56  Me.  102,  104,  and 
in  Shurtleff  v.  Millard,  12  U.  I.  272. 
See,  also,  Sparman  v.  Kerin,  83  N.  Y. 
245;  CooiHirv.  Allport,  10  Haly(N.  Y.), 
352  ;  Carpenter  v.  Car|ienter,  45  Ind.  142; 
White  V.  Branch,  61  Ind.  210  ;  Indian- 
apolis, &c.  Co.  V.  \Vilco.\,  59  Ind.  429  ; 
Ayers  V.  Burns,  87  Ind.  245  ;  liiley  v. 
Mallory,  33  Conn.  201,  207  ;  Price  v. 
Furnum,  27  Vt.  268. 

The  statement  made  by  Parsons,  though 
too  broadly  made,  has  been  nnule  by  others 
a.s  well.  Thus,  Chitty  on  Contracts  (6th 
Am.  ed.),  154,  contains  the  following : 
"An  infant's  right  to  elect  whether  he  will 
avoid  or  confirm  a  contract  entered  into  by 
him  during  his  infancy,  does  not  neces- 
sarily entitle  him  to  recover  back  money 
which  he  has  paid  thereon.  It  is  indeed 
a  general  rule  that  an  infant  cannot  recover 
back  money  naid  by  him,  even  u]ion  a 
contract  whicn  by  reason  of  his  infancy 
he  is  not  bound  to  complete,  there  being 
no  imjiosition."  And  Story  on  Sales, 
§  25  :  "  If  an  infant  should  purchase  a 
watch,  and  i)ay  for  it,  he  could  not,  by 
disatlirming  his  contract,  and  oll't.'ring 
the  watch  in  return,  found  any  clidni  to 
recover  the  sum  jiaid  by  him."  So,  in 
Drury  v.  Drury,  2  Eden,  38,  71,  Lord 
Manslield  says  :  "Infancy  never  author- 
izes fraud  ;  as,  if  goods  were  delivered  to 
an  infant,  and  he  enibez.^le  them,  trover 
would  lie  against  him  ;  or  if  he  took  an 
estate,  and  was  to  jiay  rent  for  it,  he 
should  not  hold  the  estate,  and  defend 
himself  against  i-iijment  of  the  rent,  by 
pretence  of  infancy.  If  an  infant  pays 
money  with  his  own  hand,  witliout  a 
valuable  consideration  for  it,  he  cannot 
get  it  back  again."  Sec  Wilmot's  Opinions, 
226,  note.  In  Wilson  i\  Kearse,  2  Peake, 
196  (A.  1).  1800),  Lord  Keiiyon  held  the 
exact  principle  stated  by  Prof.  Parsons. 
It  was  a  case  where  an  infant  contracted 
with  the  defendant  to  purchase  of  him  the 
goodwill  and  stock  of  a  jiublic  house,  and 
made  a  deposit  of  £20.  Refusing  to  cimi- 
]dete  the  contract,  he  brought  an  action 
for  the  £20.  Lord  Keiiyon  held  that 
though  an  infant  was  not  compellable 
to  complete  a  contract,  yet  that  when  ho 
had  paid  money  under  it  he  could  not 
recover  it  back  unless  he  could  show  that 
fraud  had  been  prac:tised  on  him.  If  an 
infant  was  to  buy  a  thing  not  being  neces- 
saries, he  could  not  be  compelled  to  pay 
for  it  ;  but  having  done  so,  he  could  not 


%m'''  -'! 


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s  t : 


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i 


,i  i 


•11 


1  9  Wall.  617. 


124 


COMMENTARIES  ON   SALES. 


[book  11. 


of  the  United  States  said,  affirming?  the  decision  of  the  Circuit 
Court :  "  Wliatcver  may  have  been  the  doubts  once  entertained,  it 


R'cover  buck  tlic  money.  The  same  (lues- 
tioii  caiiiu  up  iii^iiiii  (a.  u.  1818)  iu  Holmes 
V.  Bloj,%  8  Tuiiut.  508 ;  2  Moo.  552  ; 
whore  tlio  case  of  Wilson  v.  Koarse,  2 
Peake,  lU(i,  not  having  buen  called  to  the 
attention  of  tlio  court,  they  considered  it 
a  case  of  lirst  instance.  In  Holmes  v. 
li\o'^ji  (siifmi),  assumpsit  was  broufjiit  for 
£157  10s.  for  money  paid  by  an  infant  as 
lireniiuni  lor  a  lease,  ho  havinf{  enjoyed 
the  premises  for  a  sliort  i)eriod  liurini;  bin 
infancy,  but  liavin<5  avoided  tlie  lease  after 
ho  became  of  age,  (juittinj^  the  premises. 
Tho  court  held  that  he  could  not  recover 
the  money  so  paid  ;  approving  of  the 
priiicii)lo  laid  down  by  Lord  Mansfield  in 
JJrury  v.  Drury,  2  Kdijn,  00,  and  apparently 
approved  by  Wilinot,  C.  J.,  that  if  an 
infant  pays  money  with  his  own  hands, 
without  a  valuable  consideration,  he  can- 
not get  it  bark  again.  In  delivering  the 
judgment,  (libbs,  C  J.,  said  :  "  The  in- 
fant avoided  the  lease  when  he  came  of 
age,  as  he  bad  a  perfect  right  to  do  ;  and, 
having  avoided  the  lease,  he  brought  this 
action  for  the  money  paid  to  tlio  defend- 
ant, on  the  ground  that  the  consideration 
having  failed  ho  was  entitled  to  recover  it; 
.  .  .  but  another  question  arises,  namely, 
whether,  supposing  the  lease  to  have  been 
avoided,  the  plaintilf  could  recover  the 
money  which  he  has  paid  for  it  during  his 
infancy.  1  confess  this  action  is  (luite  new 
to  me,  and  I  thought,  on  principle,  that 
it  could  not  be  maintained.  .  .  I  think 
further,  that,  supposing  this  money  to  be 
the  sole  property  of  the  infant,  he  cannot 
recover.  He  may,  it  is  true,  avoid  the 
lei'se  ;  he  may  escape  the  burthen  of  the 
rent,  and  avoid  tiie  covenants;  but  that  is 
all  he  can  do.  He  cannot,  by  putting  an 
end  to  the  lease,  recover  back  any  consider- 
ation which  he  has  paid  for  it  ;  the  law 
does  not  enable  him  to  do  that."  In 
Warwick  v.  Bruce,  2  Mau.  k  S.  205,  209, 
which  was  an  action  by  an  infant  for 
breach  of  contract,  on  which  the  infant 
paid  £40,  Lord  Ellenborough  seems  to 
nave  had  the  same  principle  in  view  when 
he  says  :  "  It  occurred  to  me  at  the  trial, 
on  the  first  view  of  the  case,  that  as  an 
infant  could  not  trade,  and  as  this  was  an 
executory  contract,  he  could  not  maintain 
an  action  for  the  breach  of  it;  but  if  I  had 
adverted  to  the  circumstance  of  its  being 
iu  part  executed  by  the  infant,  for  he 
had  paid  £40,  and  therefore  it  was  most 
immediately  for  his  benefit  that  he  should 
be  enabled  to  sue  upon  it,  othcrwiie  he 
might  lose  the  benefit  of  such  payment,  I 
should  probably  have  hebl  otherwise." 
Another  case,  which  seems  to  have  escaped 


the  notice  of  the  American  courts  whicii 
have  discussed  the  ipiestion,  as  they  liave 
done  (juite  elaborately,  is  Ex  parte  Taylor, 
4  W.  U.  305.  An  infant  paid  £12uo  to 
B.  &  It.  for  a  partnership  interest  iu 
their  business,  and,  before  attaining  hh 
majority,  he  received  about  £200  out  of 
the  business.  When  he  reached  full  ago  he 
repudiated  the  contract,  and  B.  &  U.  sul)- 
se(|uently  becoming  insolvent,  he  .suuglit 
to  prove  against  their  estate.  The  prodf 
having  been  rejected,  on  aiipeal  tlie  de- 
cision was  atlirmed.  Krdght  Bruce,  li.  J., 
said  that  as  there  was  no  proof  ofieiud  of 
fraud  (ju  the  part  of  the  petitioner  or  his 
advisers,  the  case  solely  depeiuli'd  on  the 
question  of  the  validity  or  invalidity  ot 
a  contract  by  an  infant,  so  far  as  any  siijli 
contract  could  be  valid.  This  was  a  (•(Hi- 
tract  entered  into,  so  far  as  a  contract 
could  be  entered  into  by  a  minor,  dining 
his  minoritj',  and  acted  on  by  him  and 
the  other  side  during  his  ndnority.  Under 
these  circumstances  nis  lonlship  was  of 
opinion  that,  if  the  bankrupts  had  con- 
tinued solvent,  and  an  action  had  Ijccu 
brought  against  them  by  the  minor,  eithir 
before  or  after  he  has  attained  his  majority, 
to  recover  the  money  in  ([uestioii,  or  any 
part  of  it,  the  action  would  have  ended  in 
a  nonsuit,  or  a  verdict  against  him.  That, 
in  his  opinion,  would  decide  the  i|Ui'stion, 
and  he  considered  that  the  order  of  the 
registrar  had  correctly  disposed  of  it  by 
his  refusal  to  admit  tho  ])roof.  Turner, 
L.  J.,  said:  "There  could  be  no  doubt 
that  an  infant  was  not  absolutely  liound 
by  a  contract,  and  that  he  had  a  riglit  to 
elect,  when  of  age,  whether  he  would 
affirm  or  disaffirm  it.  But  it  was  another 
question  whether,  when  money  had  been 
paid  by  him,  he  could  recover  back  the 
money  so  paid.  Tho  one  question  de- 
pended merely  upon  the  i>rinciple  of  the 
obligations  which  niigiit  be  incmred  by 
infants  ;  the  other  ease  involved  other 
principles.  The  cases  which  were  referred 
to  had,  he  thought,  determined  the  ipics- 
tion  against  the  claimant.  Nothing  could 
be  more  strong  than  what  was  said  by 
Lord  Kenyon  in  the  case  of  Wilson  v. 
Kearse,  2  Peake,  196.  The  case  of  Holn.es 
V.  Blogg,  8  Taunt.  508,  was  equally 
decisive.  He  thought  that  the  claim  of 
the  appellant  was  rightly  rejeeted,  and 
that  the  appeal  must  be  dismissed."  We 
find  that  this  case  is  also  repoited  in  8  De 
G.  M.  &  G.  254,  where  Turner,  L.  J., 
seems  to  have  used  stronger  language  than 
as  reported  in  4  W.  li.  305.  He  is  there 
thus  reported :  "  If  an  infant  buys  an 
article  which  is  not  a  necessary,  he  cannot 


PART  I.] 


SALES  WITH    INFANTS. 


125 


i,d  in 
That, 
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if  the 
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mUUil 

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lotlier 
bci'U 

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ill  tie- 

f  the 

il  by 

other 

Ifoi'i-etl 

icouU 
id  by 
,1111  I'- 
ilii.es 
liiallv 
|iin  of 
and 
^Ve 
8l)e 
..  .1., 
■  than 
there 
Ivs  an 
anuot 


has  long  been  settled  that  the  deed  of  an  infant,  being  an  ex- 
ecuted contract,  ia  only  voidable  at  his  election ;  that  it  is  not 


1)0  compelleil  to  pny  for  it  ;  but  if  ho  Joes 
jiay  for  it  iluiiiif,'  liis  minority  he  (.'aiiiiut 
on"  attaiiiiiif;  his  nmjority  recover  the 
money  liaek."  Turner,  L.  J.,  is  siiiiiliirly 
iviunU'd  ill  '2')  L.  J.  M.  'Mi  (a.  I).  l,sr)ii). 

Tlio  taso  of  Corpo  v.  Overton,  Id  Bing. 
•152,  makes  ii  distinction  whiuli,  while  it 
liMVes  the  lioiding  in  that  case  not  incoii- 
iiistent  witii  the  iietual  holding  in  Holmes 
V.  Blogi;,  8  Taunt.  508,  and  in  K>'  par/i: 
Taylor  [sK/ifii),  is  neitiier  in  accord  with 
till'  i-'illii  tlirii/i'itdi  of  Wilson  V.  Kearse, 
L'  Peake,  lUti,  nor  with  the  dicta  of  Lord 
Kenyoii  ill  that  case  ;  of  Lord  Mtinslield 
ill  Druiy  v.  Drury,  2  Eden,  38,  71  ;  of 
(lihlis,  C.  .1.,  as  c|iioted  by  us  in  Holmes 
V.  iiiogg ;  nor  with  that  of  Turner,  L.  J., 
ill  ly  jiiiiii:  Taylor  (supra).  In  C'orjie  v. 
OvL'itoii,  a  minor  paid  iiyoO  additional  as 
tiie  ijoiisideiiition  fur  a  partnership  inter- 
est iu  the  ili'feiidant's  business.  The  niinor, 
liaviiig  rescinded  the  agreement,  brought 
an  action  fur  hisdejiosit.  Alderson,  J.,  held 
tiiat  the  iilaiiitiir  could  recover  back  his 
(li'posit,  because  it  was  obtained  by  fraud. 
Tlie  court  held  that,  ignoring  fraud,  the 
jilaiiitilf  was  still  entitled  to  recover  back 
tiie  (lc|iosit,  as,  unlike  the  case  of  Holmes 
V.  Blogg,  8  Taunt.  508,  there  was  a  total 
faihiie  of'  consideration  ;  the  minor  hav- 
ing taken  no  benefit  under  the  contract. 
t'orpe  V.  Overton,  10  Hiiig.  252,  is  distin- 
guishable from  Kc  parte  Taylor,  8  De  0. 
M.  k  Vr.  2.')4,  on  the  same  ground.  But 
it  must  be  considered  as  not  only  dill'er- 
ing  from  the  dirta  wo  have  named,  but  as 
overruling  Wilson  v.  Kearse,  2  Peake, 
I'M.  Jii  tiiat  case,  as  in  C'orpe  v.  Overton, 
a  (ji'jiosit  was  made  on  a  consideration 
wliicli  totally  failed,  the  minor  liavliig 
taken  r.o  bcncHt  under  the  contract ;  ami 
Lord  Keiiyou  held  that  the  infant  could 
not  recover  back  his  deposit.  In  Hohiies 
V.  Bloc;-,  7  Taunt.  511,  Gibbs,  C,  J.,  liiul 
this  iciiKirk  :  "  What  is  the  point  here  ? 
Tliut  an  infant,  having  paid  money  on  a 
valiialiie  consideration,  and  having  par- 
tially enjoyed  the  consideration,  seeks  to 
leci'ivc  it  iiack." 

There  is,  however,  some  authority  in 
F.uj,'land  diri'ctly  opposed  to  the  dicta  of 
Lords  Mansfield"  and  Kenyon,  which  es- 
eaped  their  notice.  Thus  it  is  laid  down 
in  Viner's  Ab.  tit.  Ei)fant,  D,  28,— 
"Money  paid  by  an  infant  with  his  own 
Imnds  ill  consideration  of  an  horse  agreed 
to  ho  .sold  him  for  that  and  a  further  sum, 
IS  but  voidable,  to  be  recovered  again  by 
an  action  of  account."  And  in  Austin  v. 
fiervas.  Hob.  77,  pi.  98,  it  was  moved 
that  the  consideration  of  the  money  paid 
in  hand  by  the  plaintiff,  being  an  infant, 


was  void  ;  to  which  Ilobart,  C.  J.,  an- 
swered :  "That  becaiLse  it  was  delivered 
by  his  own  hands,  it  was  but  voidable,  to 
be  recovered  again  by  an  action  of  ac- 
count." Treating,  then,  the  nisi  priiis 
ca.se  of  Wil.son  v.  Kearse,  2  Peake,  lOtJ, 
as  being  overruled,  and  the  dicta  of  Lords 
Jlanstiidd,  Kenyon,  and  the  otUers  re|ieat- 
ing  them,  as  not  having  been  stated  with 
sulhciont  care,  we  would,  from  the  English 
authorities,  tleduce  the  rules  ;  — 

1.  Where  an  iiifiint  has  paid  money 
under  a  contract,  from  which  lie  has  do- 
lived  no  benefit,  lu(  may,  on  resciiiding 
the  contract,  n^cover  back  his  money  as  on 
a  contract  tlie  consideration  for  which  has 
entirely  failed.  Viner's  Ab.  tit.  Enfunt, 
I).  28  ;  Austin  v.  <!ervas.  Hob.  77  j.l.  !t8  ; 
Corjie  r.  Overton,  10  Ring.  252;  overruling 
Wilson  I'.  Kearse,  2  Peake,  It'ti.  See,  as  to 
the  same  jiiinciple  involved,  Eiidiholz  v. 
Banni.stcr,  17  <-'.  15.  n.  s.  708  ;  (  hapiimn 
V.  Speller,  14  Q.  B.  (521  ;  Deviiu.x  v. 
Caniiilly,  8  C.  B.  640  ;  (iiles  v.  Edwards, 
7  T.  1{.  181  ;  Walstab  v.  Spotti.swoode,  15 
JI.  &  W.  501  ;  Mowatt  v.  Lord  Loiides- 
borough,  4  E.  &  B.  1 ;  Johnson  v.  (ioslett, 

3  C.   B.   N.  .s.  569  ;     Moore  v.  Garwood, 

4  Ex.  6»1  ;  Watson  v.  Earl  Charlemont, 
12  Q.  B.  85(5  ;  Mosely  v.  Cressy's  Co., 
L.  1{.  1  Eip  405;  Allison's  Ca.se,  L.  K. 
9  C'h.  24  ;  Westropp  v.  Solomon,  8  C.  H. 
345  ;  Young  i-.  Cole,  3  liing.  N.  C.  724  ; 
Jones  r.  lUde,  7  Taunt.  4S8  ;  (iiirnev  v. 
^VaIlersley,'  4  E.  &  15.  1^3;  Sloe.-er  v. 
Wi.sker,  L.  K.  (5  0.  P.  120  ;  Dykes 
V.  1  Slake,  4  Hing.  N.  C.  463  ;  Gibson  v. 
D'Este,  2  V.  &  C.  542. 

2.  liut  where  an  infant  hasjiaid  money 
on  a  contract  which  lie  afterwards  rescinds, 
but  has  taken  some  beiietit  uiulerit,  there, 
there  not  being  u  comidete  failure  of  the 
consideration,  he  caiinol  recover  his  money 
back.  Holmes  v.  Pdogg,  8  Taunt.  50S"; 
E.V  parte  Tavlor,  S  De  G.  M.  >t  G.  254  ; 
4  W.  W.  305  ;  25  L.  J.  15.  .'56.  See,  us 
to  the  same  princ'iple  of  ]iartial  failure  of 
con.sideiiition,  Ex  imrtc  Barrell,  Ii.  1!.  10 
Ch.  512  ;  Thomas  v.  P.rown,  1  (,).  B.  Div. 
714;  Blackburn  i;.  Smith,  2  Ex.  783; 
Hunt  V.  Silk,  5  East,  449  ;  Haiiior  v. 
Graves,  15  C.  B.  667  ;  C'hapiiian  v.  Mor- 
ton, 11  M.  &  W.  534.  See  also  Moses  y. 
Stevens,  2  Pii'k.  332  ;  Guliney  v.  Haydcn, 
110  Ma,ss.  137;  Breed  v.  Judd,  1  Gray, 
455. 

The  law  in  this  country  is  thoroughly 
established  in  accordance  with  the  rules 
we  have  deduced  as  the  ratio  decidendi 
of  the  Engli.sh  cases,  as  a  wliole.  There 
are  a  few  old  ca.ses  where  the  court.s,  like 
the  mass  of  the  text-writers,  were  led  astray 


U 


i 


*      ':.. 


i;'  1 


■i  >'  Mil    ji  . 


If,    n 


ti   ( 


126 


COMMENTARIES  ON  SALES. 


[book  11. 


void.  It  operates  to  transmit  the'  title.  And  there  are  some  cases 
in  which  such  a  deed  is  held  to  be  not  even  voidiil)lo.  Tiuy 
are  those  in  which  the  infant,  by  makinj?  the  convoyanco,  does 
only  what  the  law  would  liave  compelled  him  to  do.  *  Whctlior 
this  was  such  a  deed  need  not  bo  considered,  for  concodini?  tliat 
it  was  not,  clearly  it  was  not  void."  And  the  court  sustained  tlio 
following?  instructions  in  the  court  below  :  "  The  (piestion  here  is 
not  whether  there  has  been  an  avoidance.  The  defence  is  that 
the  deed  has  been  ratified  by  the  plaintiff.  I  am  of  the  opinion 
that  the  ratification  should  be,  if  not  e(iually  solemn,  of  a  clear 
and  unequivocal  character,  showing  the  intention  of  the  party 
to  confirm  the  deed.  An  avoidance  may  be  by  a  deed  to  a  tiiinl 
party  or,  as  held  in  this  country,  in  other  ways.  JJut  the  deed 
from  the  plaintiff  to  the  defendant  was  not  void.  It  was  simply 
voidable,  and  passed  the  title  absolutely  until  by  some  ade(|uat(.' 
act  he  afiirmed  it.  The  question,  is,  has  it  been  disallirmud  (ir 
ratified  by  the  plaintiff  since  ho  came  of  age?  All  the  facts  in 
proof,  such  as  leasing  part  of  the  property  (from  liis  grantee), 
remaining  in  the  vicinity  a  long  time  without  asserting  his  chum 
while  valuable  improvements  were  b( '  ^  put  on  the  property,  are 
to  be  considered  by  the  jury  in  decid.  x  whether  there  has  l)oen 
a  ratification  by  the  plaintifl:' ;  but  mere  acquiescence  does  not 
amount  to  a  ratification.  The*  authorities  are  somewhat  conflict- 
ing as  to  what  is  necessary  to  constitute  an  avoidance.  Lord 
Lyndhurst  was  of  opinion  that  a  deed  was  necessary  to  avoid  a 
deed  given  wliilc  under  age.  I  think  that  this  doctrine  is  perhaps 
sound,  and  ought  to  have  been  held  in  this  country ;  but  it  has 
been  held  in  this  country  that  an  infant  may  avoid  his  deed  by 


by  the  dicta  in  the  English  cases  to  which 
we  have  referred,  but  those  cases  have 
nil  been  expressly  overruled,  and  are  with- 
out authority.  One  of  them  is  Harney  v. 
Owen,  4  Hlackf.  (Ind.)  336,  where  it  was 
lield  that  a  minor  who  rescinded  a  con- 
tract for  his  services,  could  not  recover  for 
the  portion  of  the  time  in  which  the  ser- 
vices were  rendered.  The  same  doctrine 
was  held  in  New  Hampshire,  in  Weeks 
V.  Leif;hton,  5  N.  H.  343  ;  and  in  New 
York,  in  McCoy  v.  Huffman,  8  Cow.  84. 

In  Indiana,  in  Dallas  v.  Hollingsworth, 
3  Ind.  537,  Harney  v.  Owen,  4  Blackf. 
336,  was  overruled.  In  New  Hampshire, 
Weeks  v,  Leighton,  5  N.  H.  343,  was  ex- 
pressly overruled ;  and  in  New  York, 
McCoy  V.  Hulfman,  8  Cow.  84,  has  been 
repeatedly  overruled.  See  Millard  v.  Hew- 
lett, 19  Wend.  301  ;  Medbury  v.  Watrous, 
7  Hill,  110,  and  Whitmarsh  v.  Hall,  3 
Den.  375. 


With  the  overruling  of  these  cases  the 
American  law  is  in  entire  accoid  with  the 
rules  wo  have  laid  down.  See  Willis  r. 
Twambly,  13  Mass.  204  ;  Vent  v.  ih^mi 
IS)  Pick.  572;  Breed  v.  Judd,  1  Cliav, 
455  ;  CJaifnev  v.  Hayden,  110  Mass.  137; 
Judkins  i;.  Walker,  17  Me.  38  ;  Tlioiiias  r. 
Dike,  11  Vt.  273;  Peters  v.  i.onl,  18 
Conn.  337  ;  Wheatley  v.  Miscal,  ;')  I'oit. 
(Ind.)  142;  Robinson  y.  Weeks.  .50  .Mo. 
102  ;  Derocher  v.  Continental  .Mills,  iiS 
Me.  217  ;  Kiley  v.  Mallorv,  33  Cduii.  201 ; 
Shurtleff  I".  Millard,  12  R.  I.  272  ;  Hmis* 
V.  Alexander,  105  Ind.  100.  See  ftUo 
Grace  v.  Hale,  2  Humph.  (Teiiii.)  27; 
Williams  v.  Norris,  1  Litt.  (Ky.)157; 
Smith  17.  Evans,  5  Humph.  (Tenn.)  70 ; 
Roberts  v.  Wiggins,  1  N.  H.  73  ;  Hainhiet 
V.  Hamblet,  6  N.  H.  337  ;  Fitts  r.  Hall, 
9  N.  H.  441 ;  Co.  Litt.  51  b.  ;  4  Cr.  Dig. 
142. 

^  Zoijch  V.  Parsons,  3  Burr.  1794. 


TART  I.] 


SALES  WITH  INFANTS. 


127 


goincr  upon  the  land,  or  by  brinjBfinjjf  suit,  etc.  It  is  tho  act  of 
avokluncc,  and  not  that  of  tlio  ratification,  wliicli  the  law  rcMiuircs 
to  1)0  equally  solemn  with  the  conveyance,"  * 

\Vhcro  nn  infant  is  sued  for  the  i,:ice  of  ^onda  supplied  to 
hiiii  on  credit,  he  may,  for  the  pur|)08e  of  showing  that  they  were 
not  necessaries,  j?ive  evidence  that,  when  the  order  was  given,  he 
was  aUeady  sutViciently  supplied  with  goods  of  a  similar  descrip- 
tion, and  it  is  innnaterial  whether  the  plaintiff  did  or  did  not 
know  of  the  existing  supply.'* 

Where  a  j)romise  of  marriage  was  made  by  the  defendant  after 
ho  became  twenty-one  years  of  age,  who  had  been  engaged  to  the 
|)laiiitiff  during  his  infancy, to  be  married  to  her;  the  judge  left  it 
to  ilic  jury  to  say  whether  the  promise  was  a  new  one  or  a  ratifi- 
cation of  the  old  promise,  and  the  jury  having  found  that  it  was 
a  new  promise ;  the  court,  having  held  that  it  was  a  question  of 
intention  whether  the  defendant  intended  to  make  a  new  promise 
or  to  atlinn  the  old  one,  and  that  it  was  j)roi)erly  left  to  the  jury 
as  a  question  of  fact,  sustained  the  verdict.^ 

L.  transferred  fifty  shares  in  a  company  into  the  name  of  II., 
an  infant,  not  known  by  him  to  be  such,  wIjo  was  also  the  tians- 
kix'i  of  a  large  number  of  other  shares  in  the  same  company. 
H.  .as  registered  as  the  holder.  H.  attained  twenty-one  more 
than  live  months  before  the  winding-up  order,  and  in  the  interval, 
transferred  some  of  the  other  shares.  He  was  settled  on  the  list 
of  contributories  for  the  remaining  shares,  and  did  not,  at  first, 
raise  tlie  defence  of  his  having  been  an  infant,  but,  four  months 
afterwards,  took  out  a  summons  to  have  his  name  taken  off  the 
list  on  that  ground.    The  official  liquidator  then  api»lied  to  have 


'  On  iiii  infant's  ratification  of  Ilia  void- 
abli'  cuntiiict,  see  Cresinger  v.  Tho  Lessee 
oi  Wilcli,  15  Ohio,  193;  Drake  v.  llainsey, 
5  Ohio,  '251  ;  Ferguson  v.  Bell,  17  Mo. 
H17;  lioslwitk  i'.  Atkins,  3  Conist.  53  ; 
Wlieaton  r.  Kast,  5  Yorf;.  41-02;  Wallace's 
Lessee  ('.  Servis,  4  Hiirrington,  7'>;  Hart- 
iiiiin  V.  Keiulall,  4  Ind.  405  ;  Cohen  v. 
AnnstroMf;,  1  M.  k  S.  724  ;  Williams  v. 
Moor,  11  M.  &  W.  256;  Harris  v.  Wall,  1 
Ex.  -JOti;  Howe  V.  Hdiiwood,  L.  K.  4  Q.  H. 
1:  Miueor.l  v.  O.slwrne,  1  C.  V.  Div.  568; 
Hartley  r.  Wharton,  11  A.&  K.  934;  Hunt 
V.  .Massey,  5  li.  &  Ad.  902  ;  Cole  v.  Saxby, 
3  Esp.  160;  Tanner  v.  Smart,  6  B.  &  C. 
603;  Baylis  v.  Dn.ely,  3  M.  &  S.  477; 
Cornwall  v.  Hawkins,  41  L.  J.  C.  435; 
Stokes  V.  Brown,  3  Pinney,  311. 

■■'  Barnes  v.  Toye,  13  Q.  B.  D.  410.  And 
see  Biirghart  v.  Angerstein,  6  C.  &  P.  690j 
Ford  I'.  Fothergill,  1  Esp.  211;  Cook  v. 
Deaton,  3  C.  &  P.  114;  Steedman  v.  Rose, 


Car.  &  M.  422 ;  Braysbaw  v.  Eaton,  5 
Hing.  N.  C.  231;  Dajton  v.  Gibb,  5  lUng. 
N.  C.  198  ;  Baiiibridge  v.  Pickerini,',  2 
W.  Blk.  1325.  And  see  p.  120,  ante,  and 
note  1,  , 

8  Northcote  v.  Doughty,  4  C.  P.  D. 
385.  In  this  case  tho  Infants'  Relief  Act, 
1874,  was  relied  on,  and  it  was  admitted 
that  the  statute  applies  to  contracts  of 
marriage,  anil  tliat,  tliereforc,  if  the  prom- 
ise amounted  to  a  ratification  merely,  and 
not  to  a  new  promise,  it  was  not  binding, 
and  that  the  (piestiou  was  well  left  to  the 
jury.  Tlie  following  cases  bear  on  the 
point :  Coxhead  v.  MuUis,  3  C.  P.  Div. 
439  :  Maccord  v.  Osborne,  1  C.  P.  Div. 
568;  Harris  y.  Wall,  1  Ex.122;  Hutton 
r.  Mansell,  3  Salk.  16;  Thrupp  v.  Fielder, 
2  Esp.  627;  Cole  v.  Cattingliam.  8  C.  &  P. 
75  ;  Harvey  v,  Johnston,  6  C.  B.  295  ;  6 
D.  &  L.  120  ;  Carter  v.  Scargill,  L.  R.  10 
Q.  B.  564. 


):i 


128 


COMMENTARIES   ON  SALES. 


[book  II. 


the  name  of  L.  placed  on  the  list  instead  of  that  of  H.  in  respect 
of  tlic  fifty  shares.  It  was  hold,  a  transfer  to  an  infant  being  not 
void  but  only  voidable,  that,  affirming  the  decision  of  the  Master 
of  the  Rolls,  II.  must  be  held  to  have  alfirmcd  the  transaction 
after  he  came  of  age,  and  that  the  application  must  be  rel'iisod.i 

But  where  shares  had  been  transferred  to  an  infant,  and  his 
name  had  been  placed  on  the  register,  the  company  being  igP'Tuut 
of  the  fact  of  his  infancy,  and  he  did  not  come  of  age  until  after 
the  winding  up,  it  was  held,  affirming  the  judgment  of  Stuart, 
V.  C,  tiiat  the  official  liquidator  might  refuse  to  accept  him  as 
a  shareholder,  although  after  coming  of  ago  he  was  willing  to 
confirm  the  transfer.^  To  the  same  effect  is  Castello's  case  J 
But  those  questions  arise  under  the  131sfc  section  of  the  Knir- 
lish  Companies'  Act,  rendering  the  transaction  with  an  infant 
void,  because  there  must  be  a  transferee  on  the  register  wlio  ean 
be  made  liable  in  respect  to  the  shares  transferred.  This  does 
not  affect  the  general  doctrine  that  an  infant's  contract  is  not 
void  but  voidable,  subject  to  acceptance  or  rejection  by  the  infant 
on  his  coming  of  age,  and  binding  on  the  other  party  to  the  con- 
tract or  not,  at  the  election  of  the  infant.'' 

Still,  even  in  these  Companies'  cases,  where,  after  the  infant 
has  come  of  age,  he  acquiesces  in  the  contract,  and  the  com- 
pany are  willing,  the  infant  then  becomes  bound,  because  it  is 
then,  in  effect,  a  new  contract  between  the  company  and  one  of  ago. 
Thus,  in  Ebbett's  case  ^  an  infant  was  held  bound  by  his  aciiiii- 
cscencc,  where,  on  his  application,  shares  were  allotted  to  him, 
which,  subsequent  to  his  coming  of  age,  he  dealt  with  as  his  own.'' 


1  Blakcly  Onlititiiice  Co.,  Tii  re  TjUIiis- 
(Icn's  Casc,"L.  R.  4  <.'h.  Ap.  31.  In  this 
case  it  was  licld  tliat  an  infant's  contract 
is  not  void,  but  voidablo  nicioly,  and  that 
a  translor  ot"  stock  to  an  infant  is  not,  ah 
initio,  a  nullity.  See,  as  explained  liy 
tliis  case,  Curtis's  Case,  L.  K.  6  Kij.  4^ti)  ; 
Showi'irs  Case,  L.  U.  2  Cli.  387;  Capjiers 
Case,  L.  ii.  3  Ch.  458  ;  Mann's  Case,  J/i. 
4.')9,  II.;  Hart's  Case,  I,.  R.  6  K(i.  [,U  ; 
Roid'a  Case,  24  Beav.  318 ;  Litchfield's 
Case,  2  DeC.  k  S.  141. 

*  Syinon's  Case,  In  ir,  Asiatic  Banking 
Co.,  L.  H.  5  Ch.  Ap.  298.  See,  in  addi- 
tion to  the  eases  v'ited  in  the  previous 
note,  Lunisden's  Case,  L.  R.  4  Ch.  31; 
Parson's  Case,  L.  U,  8  Ei].  C>r>6;  Wilson's 
Case,  L.  R.  8  K(i.  240;  Henessey's  Case, 
3  De  O.  k  Sin.  li»l.  And  see  otlicr  case, 
post,  Part  VI.,  on  Sales  of  Shares  of 
Stock. 

»  L.  R.  8  Eq.  504. 

*  Oliver  v.   Houdlet,   13   Mass.   237; 


Xiglitinf^ale  v.  AVitliington,  ir>  Jlass.  2"'.'; 
AVorcestev  ?'.  Eaton,  13  .Mass.  ',]7\:  V;in 
Bianier  v.  Cooper,  2  .lohns.  .!79;  Ihirtiicss 
V.  Thompson,  5  .lohns.  1<!0  ;  IJdsc  i', 
Daniel,  3  Bwv.  (S.  C.)  43S;  r.nnvn  r. 
Coldwell,  10  S.  k  U.  114;  Stmin  r. 
"Wright,  7  C>a.  5«8;  Brvan  v.  \V;ilMn.  U 
Ca.  185;  Baker  v.  l.m-i'tt,  (i  M:iss.  IS; 
iSlocuni  V.  Hooker,  13  l*>arb.  OOd 

6  L.  II.  f,  Ch.  A]).  302. 

"  Such  an  election  must,  liowcvcr,  not 
be  made  by  an  infant  ignorant  of  liisli'!;:ii 
position,  and  can  only  be  made  liy  oin' 
cognizant  of  his  rights.  Tucker  r.  Siiiipr, 
McCIel.  430;  13  Price,  G07;  iiiitriiko  i'. 
Broadhurst,  1  Ves.  .Ir.  17;')  ;  3  ISro.  ('.  C. 
88  ;  Wlii.stler  v.  Webster,  2  Ves.  .Ir.  3tw; 
Wake  J).  Wake,  1  Ves.  ,Ir.  33.'')  ;  Aniicrr. 
Pope,  2  Ves.  Sen.  523;  Tomkvn.'^i'.  I-n'- 
broke,  Ih.  592,  593;  Harvev  V.  Asliliv, 
3  Atk.  fil5;  Pawlett  -.  Delaval,  2  Ves. 
Sen.  670;  Duke  of  Northniiibirlnnd  f. 
Aylesford,  Ambl.  540;  Stratford  u.  I'oweli, 


il 


PART  I.] 


SALES   WITH    INFANTS. 


128 


lUit,  wlien,  as  in  "VN  -jston's  case,^  and  as  in  many  other  cases,'* 
tlic  sliaros  are  bought  by  an  adult  and  registered  in  the  name 
of  an  infant,  the  adult  is  liable  to  be  placed  on  the  list  as  a 
contributor. 

The  English  act  (9  Geo.  4,  c.  li,  s.  5.),  like  the  acts  in  this 
country,  enacts  that  the  "promise  or  r<< t'li cation  "  of  the  con- 
tract by  an  infant  must  be  made  by  b'm  in  v  riting  after  attaining 
full  age.  In  Rowe  v.  Flopwood,'^  goods,  being  wines,  for  which 
ho  was  not  liable  as  necessaries,  having  been  supplied  by  tbo 
lilaintitf  to  the  defenda^.t  whilst  the  defendant  was  an  infant ; 
when  ho  came  of  age  an  account  with  the  items  and  prices  was 
sul)niitte(l  to  him,  at  the  foot  of  which  he  signed  the  following  : 
'•riiiticulars  of  account  to  the  end  of  18G7,  amounting  to  .£162 
lis.  (.)-/.,  1  ecrtify  to  be  correct  and  satisfactory."  Tijc  Court  of 
Queen's  Bench  held,  that  this  did  riot  amount  to  a  recognition  of 
the  debt  as  an  existing  liability  so  as  to  be  a  ratification  of  the 
contract  witbin  tlie  statute.  Cockburn,  in  delivering  judgment, 
hiid  down  tlic  following  i)rinciplcs  as  governing  the  case :  "  The 
statute  requires  a  ratification  in  writing  of  a  debt  incurred  by  a 
jiorson  under  age,  and  the  written  document  necessary  as  the 
foundation  of  an  action  against  the  debtor  after  he  has  attained 
his  majority  is  for  the  court  and  not  for  the  jury.  Therefore,  it 
is  for  us  to  say  whether  this  written  document  is  a  suflicient 
ratilieation.  1  think  it  is  not ;  for  1  entirely  concur  in  the  view 
adopted  by  the  Court  of  Exchequer  in  Harris  ?'.  Wall,*  that  in 
order  to  be  a  ratification  there  must  be  a  recognition  by  the  debt- 
or, after  bo  has  attained  his  majority,  of  the  debt  as  a  l)in(ling 
dolit  upon  iiim.  Is  this  document  such  as  to  amount  to  a  recog- 
niticii  of  an  existing  liability  ?  I  do  not  think  that  it  is.  "What 
it  comes  to  is  this  :  An  account  is  submitted  to  the  defendant  after 
he  is  of  full  age,  which  contains  a  statement  of  goods  supplied 


h ' 


H 


]  B;ill  >^  B.  24;  fJi.l.linss  r.  Oiildiiigs,  3 
l!iis>.  -Jll;  Curtis  v.  I'littoii,  11  S.  &  U. 
30,-i;  liiuclvr.  Miin!;.irit\,  3  rfiiii.  VIS; 
Onliiiiiiy  r.  Wliony,  1  ikil.  (S.  ('.)  28; 
NiMiis  ('.  Viiiice,  3  Hich.  Ifi4.  Where  an 
int'iiiit  elcets  to  allir.ii  ii  coiitrnot,  lie  imist 
iitlinii  it  IS  II  wli(il( .  He  cannot  nllirni  it 
in  ]iait  and  [vvoid  it  in  part.  Bijjilow  v. 
Kiniu'V,  3  Vt.  3ri3  ;  Morrill  v.  Aden,  19 
Vt.  rid,"). 

If  h«  retain  property  purchased  undnr 
a  cnn'raet,  lie  cannot  under  a  jdea  "f  in- 
l^iiay avoid  paving  lor  it.  Henry  v.  Itoot, 
33  N.  Y.  n-Jti  ;  Forsyth  v.  Hastings,  27 
»t.  04(1;  Bartludoniew  v.  Finnen>on',  17 
Barb.  4'JS;  Strain  v.  Wright,  7  Ca.  i>C.S: 
Hiiii(-y  r.  Bainberger,  11  B.  Mon.  (Ky.) 
113;    lliU  t,.   Anderson,   13   Miss.    21fi ; 

VOL.  1.  0 


Kitchen  v.  Lee,  11  Paige,  10";  Hillyor  i>. 
Barnett,  3  Edw.  222;  Oltman  v.  Mack, 
3  Sandf.  Cli.  431  ;  Kilgore  v.  Jortlan,  17 
Te.\.  341.  Set?  as  to  acts  of  ratilieation, 
Kninioiis  i>.  Murray,  I'i  N.  11.  38.1;  Kline 
V.  Ueebe,  ()  Conn.  4U4  ;  Winiheiley  v. 
Jones,  1  (ill.  Dec.  91;  llartinan  v.  Ken- 
dall, 4  Ind.  403;  Boody  i-.  McKeimev,  23 
Me.  .517;  Levering  r.  lleiglie,  2  Md.'  Cii. 
81;  Willianiii  i-.  Mo1.ee,  7  N.  .1.  K.j.  .lOO; 
AVheaton  v.  Kast,  5  Vcrg.  41;  Summers  v. 
Wilson,  2  Coldw.  4(i9. 

1  L.  K.  5  Cii.  Ap.  614. 

'^  Capjier's  Case,  L.  U.  3  Ch.  Ap.  458  ; 
Mann's  Case,  fb.  459,  n.  And  many 
other  cases  to  tho  .-.anK  cfl'oct. 

8  I..  Ii.  4  Q.  B.  1. 

«  1  Ex.  122. 


130 


COMMENTARIES  ON  SALES. 


[book  II. 


■  !■ 


i: 


ml 


during  his  infancy  ;  he  is  asked  to  sign  it,  and  he  put  his  signa- 
ture to  the  words, '  I  certify  the  account  to  be  correct  and  satis- 
factory.' I  understand  these  words  to  mean  that  the  items  are 
properly  set  out,  and  the  suras  charged  in  respect  of  these  items 
satisfactory.  I  do  not  think  the  words  mean  more  than  tliat. 
There  ought  to  be,  at  least  on  the  part  of  the  debtor,  an  admission 
of  an  existing  liability,  and  we  ought  not  to  strain  tlie  meaning  of 
the  words  in  the  document  signed  by  the  debtor,  so  as  to  defeat 
the  operation  of  the  statute  passed  for  his  protection."  The  otlicr 
judges  concurred.^ 

In  Maynard  v.  Eaton,^  E.  through  his  broker  purchased 
shares,  and  had  them  placed  in  the  name  of  his  son,  an  infant; 
the  seller  not  being  aware  of  the  infancy.  Soon  afterwards,  the 
company  was  wound  up  voluntarily,  and  the  infant  brought  an 
action,  by  his  next  friend,  against  the  plaintiff,  who  was  an  auditor 
of  the  company,  charging  him  v;ith  fraud  in  selling  the  sliaros, 
knowing  that  the  company  was  in  an  insolvent  condition,  and 
claiming  damages.  There  was  no  allegation  of  infancy,  and  the 
action  was  not  sought  to  be  sustained  on  that  ground.  The  action 
was  compromised  on  the  terms  that  all  charges  of  fraud  should 
be  withdrawn,  and  that  the  purchase-money  should  be  repaid  the 


1  And  see  Hartley  u.  Wharton,  IT  A.  & 
E.  934  ;  Mawsoii  v.'  Beaiie,  10  Kx.  206  ; 
Hunt  V.  Massey,  5  B.  &  Ad.  902  ;  Lohb  v. 
Stanley,  5  Q.  B.  574  ;  Williams  v.  Moor, 
11  M.  &  W.  256  ;  Cohen  v.  Armstrong, 
1  M.  &  Scl.  724  ;  Whippy  v.  Hillary,  3  B. 

6  Ad.  399  ;  Hart  v.  I'rendergast,  14  M.  & 
W.  741 ;  Hinely  i>.  Margarity,  3  Barr,  428  ; 
Martin  v.  Mayo,  10  Maass,  1J7  ;  Oay  v. 
Ballow,  4  Wend.  403  ;  Miliudi-.  Howlott, 
19  lb.  301 ;  Thon)j)son  v.  Lay,  4  Tick.  48  ; 
Pearco  v.  Tobey,  5  Met.  168  ;  Everson  v. 
Campbell,  17  Wend.  419. 

The  authorities  in  this  country  are  very 
generally  in  accord  with  the  holding  in 
Rowe  V.  Hopwood,  L.  U.  i  }.  B.  1.  See 
the  authorities  cited  in  the  previous  note, 
and  see  Smith  f.  Mayo,  9  Muss.  62,  64  ; 
Whitney  v.  Dutch,  14  Mass.  457,  460; 
Ford  V.  Phillips,  1  Pick.  202  ;  Barnaby  v. 
Barnabv,  1  Pick.  221,  223  ;  Thomjjson  v. 
Lay,  4'  Pick.  48  ;  Wilcox  r.  Hoath,  12 
Conn.  550  ;  Goodsell  v.  Myers,  3  Wend. 
479  ;  Procter  v.  Sears,  4  Allen,  95  ;  Kdger- 
ley  V.  Shaw,  25  N.  H.  514;  Taft  v.  Ser- 
geant, 18  Barb.  320  ;  Ackerman  v.  Kunyon, 
1  Hilt.  (N.  Y.)  169 ;  Alexander  v.  Hutcbe- 
son,  2  Hawks  (N.  C),  535  ;  Martin  v.  By- 
rom,  Dudley  (Ga.),  203  ;  Armfield  v.  Tate, 

7  Ired.  L.  258  ;  Ueed  v.  Boshenrs,  4  Sneed, 
118;  Buckner  v.  Smith,  1  Wash.  (Va.) 
296  ;  Stokes  v.  Brown,  4  Chand.  (Wis.) 
39;  Burdett  v.  Williams,  30  Fed.  Rep. 


697  ;  Baker  v.  Kennett,  54  Mo.  82.    In 
this  last  cited  case  the  court  said  ;  "Tlio 
rule  is  well  settled,  that,  to  constitute  a  rat- 
ilication  of  an  infant's  contract,  a  imie  ac- 
knowledgment that  the  debt  existed  or 
that  the  contract  was  made  is  nut  sulli- 
cient.     There  need  not  be  a  pivcise  iiml 
formal  promise,  but  there  must  be  a  iliiect 
and  express  confirmation,  and  a  siibstaii- 
tial  promise  to  pay  the  debt  or  fiillil  the 
contract.    The  promise  must  be  wvmI'  with 
a  knowledge  of  the  facts,  with  a  ili-liberate 
purpose  of  assuming  a  liability  fnmi  whiih 
he  knows  he  is  discharged  by  law."    Ami 
see  Highley  w.  Barron,  49  Mo.  103  ;  Owens 
V.  Phelps,  95  N.  C.  286  ;  Howard  c.  Simp- 
kins,  70  Ga.  322  ;  Petty  o.  Robeits,  7  Hush 
(Ky.),    410;    Hobinson    v.    lloskins,  14 
Bush,  393  ;  Phili>ot  v.  Sandwidi  Maiiuf. 
Co.,  18  Neb.  54  ;   Necker  v.   Koi-lin,  21 
Neb.  559.     An  infant  cannot  n'taiii  ptr- 
sonal  property  purchased,  and  pli;iil  in- 
fancy as  a  defence  to  a  note  givti  I'nr  it. 
See  prior  cases,  and  see  Deliiiio  v.  lilakc, 
11   Wend.   85 ;  Jones  v.    I'lid'uix  Ban!;, 
4  Seld.  228;   Kitchen  v.  Lee,  11  I'ai^ 
107.    See,  as  to  his  mere  acknowli'i!;;nii'iit, 
Bennett    v.    Calkim,    52   Conn.    1,  not 
amounting  to  a  promise.     In  Owen  r. 
Long,  112  Mass.  403,  an  infant's  ratilica- 
tion  of  his  signing  a  promissory  note  as 
surety  was  held  binding. 
»  L.  R.  9  Ch.  App.  414. 


PAR5 

infar 

the  ] 

panv 

Avas  t 

not  a 

the  ill 

in  res 

tiif  M-i 

fi'oin  ] 

Ills  d( 

.  infanci 

and  tli( 

conceal 

the  con 

for  a  re, 

was  the 

bill  was 

In  Oc 

tliem  tr; 

put  on  tl 

to  be  M'oi 

and  Jio  di 

JanuaiT, 
On  rcccip 
Jiqiiidato 
but,  aftor\ 
^Jie  re(jiio, 
him,  in  co| 
call,  f,)  „s 
ou-iior  of  t 
''is  name 
affirinimr  t 
'•^pi'il,  KS7] 
the  sliai-os ; 
0^  conti'ilji, 


r 


L, 


rr  r, 


n       -■■    '■    \  oil 

^•'«''. '-.  i;.  r  c 

'''I'l"iiilfin|,  |,v 

;""r-c,..;, 

FhV/V'"'''"Il's 

'■     itl(Wr(r      Q    'n 

^"8;  Peterson 


PART  I.] 


SALES  WITH   INFANTS. 


181 


infant.  The  liquidators,  on  discovering  the  infancy,  substituted 
the  name  of  the  plaintiff  for  his,  as  a  contributory  to  the  com- 
pany. Tlie  plaintiff  then  filed  a  bill  against  E.,  charging  that  he 
was  the  real  purchaser  of  the  shares,  and  that  the  plaintiff  was 
not  aware  of  that  fact  when  he  entered  into  the  compromise  with 
tlic  infant,  and  claiming  to  be  indemnified  by  E.  against  all  loss 
in  respect  of  the  transaction.  Malins,  V,  C,  held  that  the  plain- 
tiff was  entitled  to  be  indemnified,  and  that  he  was  not  precluded 
from  maintaining  the  suit  by  the  compromise  with  the  infant, 
llis  decision  was,  however,  reversed  on  appeal,  the  question  of 
infancy  having  had  nothing  to  do  with  the  compromised  suit; 
and  the  infant  having  sued  by  his  next  friend,  there  was  neither 
concealment  of  truth  nor  suggestion  of  what  was  false  relating  to 
tlic  compromise  mat'  er ;  the  action  having  been  simply  brought 
for  a  rescission  of  the  contract,  and  whether  the  beneficial  owner 
was  the  fatlier  or  the  son  was  wholly  irrelevant.  The  plaintiff's 
bill  was  dismissed. 

In  October,  1865,  C,  purchased  shares  in  a  company,  and  had 
them  transferred  to  B.  as  a  trustee  for  him,  and  B.'s  name  was 
put  on  the  register.  In  March,  1866,  the  company  was  ordered 
to  l)c  wound  up.  At  the  time  of  the  transfer  B.  was  an  infant, 
and  he  did  not  come  of  age  till  September,  1867.  In  December, 
1867,  B.'s  name  was  settled  on  the  list  of  contributories ;  and  in 
January,  1808,  a  call  was  made,  notice  of  which  was  sent  to  B. 
On  receipt  of  the  notice,  B.  repudiated  the  shares,  and  the  oflicial 
liquidator  took  out  a  summons  to  remove  his  name  from  the  list, 
but,  afterwards,  abandoned  the  summons.  In  April,  1871,  B.,  at 
the  request  of  the  official  liquidator,  wrote  a  letter  authorizing 
him,  in  consideration  of  his  not  proceeding  against  B.  under  the 
call,  to  use  B.'s  name  in  taking  proceedings  against  C,  the  real 
owner  of  the  shares.  Afterwards  B.  took  out  a  summons  to  have 
his  name  removed  from  the  list  of  contributories  ;  it  was  held, 
affirminir  the  decision  of  Lord  Romilly,  M.  R.,  that  the  letter  of 
April,  l!S71,  did  not  operate  as  a  retraction  of  B.'s  repudiation  of 
the  shares ;  and  that  his  name  must  be  removed  from  the  list 
of  contributories.^ 


!    I 


rv 


(■^i 


'  III  ri'  Odiitrai't  Corporation,  Bakrr's 
Cast',  L.  i;.  7  Ch.  A]\  115.  As  to  nets  of 
rppudiiitidii  liy  nil  infnnt,  see  Cork  &  Hnii- 
Jon  l!v.  C.i.  r.  Cuzenove,  10  Q.  B.  935  ; 
Diihliii  &  Wi.'klow  Ry.  Co.  >.'.  Black,  8  Ex. 
181  ;  Mitohfll's  Case',  L.  R.  9  Eq.  363  ; 
Ebhctt's  Crisi-,  L.  U.  5Ch.  302;  Holiiiea 
I',  lildm-,  8  Taunt.  35  ;  Tucker  v.  More- 
l^n.l,  1(1  IVt.  58  ;  I'itclieru.  Lycock,  7  Ind. 
398 ;  IViuisou  v.  Laik,  24  Mo.  641 ;  Jack- 


son V.  Carpenter,  11  Johns.  539  ;  Jackson 
w.'Hurcliin,  14. Johns,  124  ;  Hoyle  v.  Stone, 
2  Dfv.  &  n.  L.  3'.'0  ;  Cresiiijrt'r  v.  VVflch, 
15  t)hio,  156 ;  McCiuu  v.  Marsliall,  7 
Humjih.  121  ;  White  v.  Flora,  2  Overt. 
(Teiin.)  426;  H.-ath  v.  West,  26  N.  H. 
191  ;  Shipnian  v.  Haton,  17  Conn.  481  ; 
Walker  v.  Ellis,  12  111.  470  ;  Mo-ie  v. 
Abernathv,  7  Hlnckf.  442  ;  Can  v.  Clough, 
26  N.  H.'230  i  Grace  v.  Hale,  2  Humph. 


132 


COMMENTARIES   ON  SALES. 


[book  II. 


G.,  a  shareholder  in  a  limited  company,  transferred  his  shares 
to  A.,  an  infant,  more  than  a  year  before  the  company  was  wound 
up.  A.  transferred  to  D.,  also  an  infant,  who  transferred  to  B. 
:hrce  months  before  th3  winding  up.  The  transfers  were  all  re- 
gistered. B.,  who  was  sui  juris  at  the  date  of  the  transfer,  after- 
wards became  bankrupt.  It  was  claimed,  tliat,  under  section  38 
of  the  English  Companies'  Act,  1862,  B.  having  become  bankrupt, 
G.  was  liable  as  a  shareholder ;  and  the  court  so  held,  and  that  he 
continued  liable  as  a  member  till  B.'s  transfer  was  registered,  and 
must  be  placed  on  the  list  of  coutributories  as  a  past  shareholder.' 

The  question  of  the  liability  of  an  agent  who  purchased  shares 
of  stock  and  furnished  the  name  of  one  who  was  afterwards  ascer- 
tained to  be  an  infant,  was  elaborately  examined  in  Mcrrv  v. 
Nickalls.2  The  decision  was  on  the  basis  that,  having  given  the 
name  of  an  infant,  who  was  not  liable,  he  had,  in  fact,  given  no 
name  at  all,  and  he  was  himself  liable  as  principal ;  and  this, 
although  the  time  limited  by  the  rules  of  the  stock  exchange  for 
objecting  to  a  proposed  transferee  had  expired  without  any  such 
objections  having  been  made.^ 

Infancy  is  a  bar  to  an  action  by  an  owner  against  his  super- 
cargo for  breach  of  instructions  ;  but  not  to  an  action  of  trover 
for  the  goods.     Still,  however,  infancy  may  be  given  iu  evidence 


27.  In  Binghnm  v.  Barley,  55  Tex.  281, 
the  court  said  :  "  We  think  tlie  jiropor  rule 
that  must  prevail,  in  liarniony  with  the  de- 
cisions and  all  oircunistauces  in  the  contlict 
of  authority  upon  the  subject  of  the  rights 
and  duties  of  the  minor,  who,  after  coming 
of  age,  would  avoid  his  deed  made  during 
his  miiioritj',  is  this  :  that  he  shall  be  held 
to  do  so  within  a  reasonable  time  ;  that  his 
silence  or  accjuiescence  beyond  such  reas- 
onable time  should  conclude  him  from  dis- 
affirming it,  and  that  what  is  a  reasonable 
time  is  such  a  period  as  in  view  of  the  at- 
tending facts  would  rebut  any  presump- 
tion of  an  inteiuled  disatfirinance.  Tho 
silence  or  non-claim  of  the  minor  for  a 
considerable  length  of  time,  though  less 
than  the  period  of  limitation,  may  as  eft'cc- 
tually  prove  his  allirmance  or  ratification 
in  connection  with  the  circumstances  of 
the  case,  as  his  express  acts  or  declarations 
to  that  clVect."  See  further,  as  to  infant's 
avoidance  of  his  contracts,  Hoyt  v,  Wil- 
kinson, 57  Vt.  404  ;  Price  v.  Furman,  27 
Vt.  268  ;  Person  v.  Chase,  37  Vt.  648  ; 
Abell  V.  Warren,  42  Vt.  720  ;  Willis  v. 
Twambly,  13  Mass.  204  ;  Betts  j;.  Carroll, 
6  Mo.  App.  518  ;  Heath  v.  West,  28  N.  H. 
108  ;  Cogley  v.  Cushman,  16  Minn.  402  ; 
Skiimer  v.  Maxwell,  66  N.  C.  45  ;  Kitchen 
V.  Lee,  11  Paige,  Ch.  108  ;  Kerr  v.  Bell,  44 
Mo.  120  ;  Towle  v.  Dresser,  73  Me.  252  ; 


Bryant  v.  Pottinger,  6  Bush  (Ky.),  473; 
House  V.  Alexander,  105  Ind.  lO'J  ;  Dill  v. 
Bowen,  54  Ind.  204  ;  Carpenter  v.  Cariwn- 
ter,  45  Ind.  142  ;  Hayes  v.  Parker,  41  X.  J. 
Eq.  630  ;  St.  Louis,  &c.  liy.  v.  Higgins, 
44  Ark.  2'J3  ;  Stitt'  i-.  Keith,  143  Mass. 
224  ;  McCarthy  v.  Henderson,  l:i3  Mass. 
310  ;  Page  v.  iMorse,  128  Mass.  ItH  ;  M- 
nett  V.  McLauchlin,  13  111.  A])]).  W\ 
Hall  V.  Butterlield,  59  N.  H.  ;i.")4  ;  liart. 
lett  !'.  Bailey,  59  N.  H.  408  ;  Braiitlev  v. 
Wolt;  60  Miss.  420. 

1  III  re  Contract  Corporation,  Oooch'j 
Case,  L.  R.  14  Kq.  454. 

^  L.  R.  7  Ch.  Ap.  733. 

^  In  this  case  the  decision  of  Bacon, 
V.C,  who  followed  Rennie  v.  Munis,  I.. II. 
13  Kq.  203,  holding  conl.ni,  was  rcviT-oJ, 
and  Kennie  v.  Morris  was  oveniilcil,  Mas. 
ted  V.  Paine,  L.  R.  4  Kx.  81,  lii'iii,-  ap- 
proved. See  an  elaboiate  juii;,'im'iit  on 
the  same  subject  by  Blackltuni,  .1.,  i" 
Maxted  v.  Paiiie  (2nd  aetioii),  L.  R.  (i  ts. 
132.  See  further  on  the  (pustion,  (Irisstll 
V.  Bristowe,  L.  R.  4  V.  P.  06  ;  C'oN'S  r. 
Bristowe,  L.  R.  4  Ch.  3  ;  Cruse  v.  Paine, 
Ih.  441  ;  Allen  v.  Graves,  L.  K.  5  Q.  B. 
478  ;  Bowring  v.  Shepherd,  L.  R.  6  Q.  B. 
309  ;  Paine  v.  Hutchinson,  I..  H.  3  i  h. 
388  ;  Sheppard  v.  Murphy,  Ir.  L.  IL  1  h 
590. 


PART  I.] 


SALES  WITH  INFANTS. 


188 


in  an  action  of  trover  upon  the  plea  of  not  guilty  ;  not  as  a  bar, 
but  to  show  the  nature  of  the  act  which  is  claimed  to  be  a  con- 
version. An  infant  is  liable  in  trover,  although  the  goods  were 
delivorcd  to  him  under  a  contract.* 


1  Vcisse  V.  Smith,  6  Cninch,  226, 
111  Biu'.  Ab.  tit.  liifunaj,  it  is  laid 
down,  "  It' ill!  iiit'ant  without  any  contract 
williilly  takes  away  the  goods  of  another, 
tiovir  lies  against  him.  Also,  it  is  said, 
tliat  if  he  takes  the  goods  under  pretence 
t!wt  tie  is  oi  tall  age  trover  lies,  because  it 
ii  a  wilful  and  fraudulent  trespass." 

An  infant  is  liable  for  his  wilful 
torts,  and  for  damages  for  frauds  com- 
niitteJ  by  him  ;  but  no  fraudulent  repre- 
st'ntation  made  by  an  infant  can  give  va- 
lidity to  any  contract  entered  into  by  him 
ttliicii  woulil  otherwise  be  voidable  for  his 
infancy.  The  action  must  in  all  cases 
arise  solely  upon  the  tort  or  wrong  com- 
niittccl  by"  him.  Studwell  v.  Shajiter,  54 
N.  Y.  249  ;  V.xsse  v.  Smith,  6  Cranch, 
•2'26;  Kckerstein  i'.  Frank,  1  Dalv,  334; 
Heath  V.  Mahonev,  14  N.  Y.  Sup.  Ct. 
KiO;  Katon  v.  Hill,  50  N.  H.  235.  In 
Fitts  I'.  Hall,  9  N.  H.  441,  Parker,  C.  J., 
di'duccd  liom  the  authorities  this  princi- 
ple :  that  if  the  tort  or  fraud  of  an  infatit 
arises  from  a  breach  of  contract,  although 
there  may  have  been  false  representations 
or  concealment  res])ecting  the  subject-mat- 
ter of  it,  the  infant  cannot  be  charged  for 
this  breach  of  his  jiromise  or  contract  by  a 
diangc  of  the  form  of  action.  But  if  the 
tort  is  siibsei|Uent  to  the  contract,  and  not 
a  mere  lireach  of  it,  but  a  distinct,  wilful, 
and  positive  wrong  of  itself,  then,  al- 
tiiough  it  may  be  connected  with  a  con- 
tract, the  infant  is  liable.  But  if  one 
attirins  himself  of  full  age  when  he  is  an 
infant,  and  thereliy  ])roi'ures  a  contract  to 
be  entered  into,  he  is  chargeable  in  dam- 
ages for  a  fraudulent  misrepresentation 
wliereby  another  has  received  damage. 
Tims  a  representation  that  the  d.  IVi'daiit 
is  of  full  age  is  not  part  of  the  oi  >  t, 
nor  does  it  grow  out  of  the  contract,  or  in 
any  way  result  from  it.  It  is  not  any  piMt 
of  its  terms,  nor  is  it  the  considerat'  a 
upon  which  the  contract  is  founded.  A'o 
iiaitrai't  is  made  abcuit  the  infant's  age. 
Tlie  sale  of  goods  is  not  a  consideration  tor 
this  altirination  or  representation.  The 
representation  is  not  a  tbundation  for  an 
aetion  of  assumpsit.  The  matter  arises 
purely  ,-.,•  ddicto.  The  fraud  is  intended 
to  iiiduee  and  does  induce  the  other  party 
to  make  a  contract,  t)Ut  that  by  no  means 
makes  it  part  and  parcel  of  the  contract. 
It  is  anteeedent  to  the  contract ;  and  if  an 
intant  is  liable  for  a  positive  wrong  con- 
nocted  with  a  contract,  but  arising  after 
the  contract  has  been  made,  he  may  well 


be  answerable  for  one  committed  before 
the  contract  was  entered  into,  although  it 
may  have  led  to  the  contract.  See  Homer 
V.  i'hwing,  3  Pick.  492;  Mills  v.  Graham, 
4  B.  &  P.  140  ;  Bristow  v.  Eastman,  1  Esp. 
172  ;  Badger  f.  Phinney,  15  Mass.  359  ; 
liivermore  v.  Herschell,  3  Pick.  33,  36  ; 
Eaton  V.  Hill,  50  N.  H.  235  ;  Matthews  v. 
Cowan,  59  HI.  341  ;  Hayes  i-.  Parker,  41 
N.  J.  Eip  630  ;  Carpenter  v.  Carjienter,  45 
Ind.  142;  Pico  v.  Hoyer,  108  Ind.  472; 
Nolan  V.  Jones,  53  Iowa,  387  ;  Lewis  v. 
I.ittletield,  15  Me.  233  ;  Walker  v.  Davis, 
67  Mass.  506  ;  Ha.xter  o.  Bush,  29  Vt.  465  ; 
Green  v.  Sperrv,  16  Vt.  392  ;  Hughes  v. 
Gallans,  10  Phi'la.  618.  In  Rice  v.  Boyer, 
lo8  Ind.  472,  the  court,  in  holding  that 
where  an  intant  fraudidently  and  falsely 
represents  that  he  is  of  full  age  he  is  liable 
in  an  action  ex  delicto  for  the  injury  result- 
ing Ironi  bistort,  say:  "This  result  does 
not  involve  a  violation  of  the  principle 
that  an  infant  is  not  liable  where  the  con- 
seipience  would  bean  indirect  enforcement 
of  his  contract,  for  the  recovery  is  not  upon 
the  contract,  as  that  is  treated  as  of  no 
eH'ect ;  nor  is  he  made  to  jiay  the  contract 
price  of  the  article  purchased  by  him,  as 
lie  is  only  held  to  answer  for  the  actual 
loss  caused  by  his  fraud.  In  holding  him 
responsible  for  the  conse((uences  of  his 
wrong  an  e(piitable  conclusion  is  reached, 
ond  one  which  strictly  harmonizes  with 
the  general  doctrine  that  an  infant  is  lia- 
ble for  his  toits.  Nor  does  our  conclu- 
sion invalidate  the  doctrine  that  an  infant 
has  no  power  to  deny  his  disability,  for  it 
concedes  this,  but  athrms  that  he  must 
answer  for  his  ]iositive  fraud." 

In  England  the  rule  at  law  has  been  held 
that  an  infant  cannot  be  made  liable  for  a 
fraudulent  representation  that  he  was  of 
full  age,  \vherel)y  the  plaintilf  was  induced 
to  contract  with  him.  Price  v.  Hewi'tt,  8 
Ex.  146;  Liverpool  Adelphi  Loan  Assoc. 
V.  Fairhurst,  9  Ex.  422  :  Johnson  r.  Pye, 
1  Sid.  258  ;  1  Keb.  913.  And  .see  Jen- 
nings  V.  Hundall,  8  T.  K.  335  ;  Burnard  v. 
Haggis,  14  C.  H.  N.  .s.  45;  Wright  v. 
Leonard,  11  (;.  B.  N.  s.  258  ;  Bartlett  v. 
Wells,  1  B.  &  S.  836  ;  Dee  lioo  v.  Foster, 
12  C.  B.  N.  s.  272.  But  in  England,  ia 
the  courts  of  eipiity  and  bankruptcy,  the 
rule  has  been  acted  on,  as  it  has  generally 
been  in  the  <!ourts  of  law  in  this  country. 
See  Cory  v.  Gertchen,  2  Madd.  40  ;  Wright 
I'.  Snowc,  2  De  G.  &  S.  321  ;  Esron  v, 
Nicholas,  1  De  G.  &  S.  118  ;  Ch.rke  v. 
Cobley,  2  Cox,  173  ;  Clark  v.  Bedford,  13 


U 


!i 


134 


COMMENTARIES   ON  SALES. 


[book  II. 


Infancy  is  no  defence  to  an  action  for  money  obtained  by  tlic 
infant  by  falsehood  and  fraud.^ 


I'  i . 


!•      I  )|1 


•'.3 


Vin.  Ab.  536  ;  Vai.  ,'han  v.  Vanduistegen, 

2  Drew,  165,  3G9  ;  Ovurtou  v.  Uannistur,  3 
Hare,  503  ;  4  Heav.  205  ;  Drury  v.  Drury, 
4  Bro.  C.  C.  506  ;  Buckett  v.  CorJley,  1  Bro. 
C.  C.  352  ;  Ex  parte  Watson,  16  Ves.  265  j 
Ex  par/n  Bates,  2  Mont.  I).  &  D.  337  ;  Ex 
parte  The  Unity  Joint-Stock,  &o.  Assoc, 

3  De  (}.  &  J.  63  ;  Evioy  v.  Nicholson, 
2  Kq.  Cas.  Ab.  489  ;  Earl  of  Buckingluun- 
shire  v.  Drury,  2  Eden,  72. 

In  this  country,  in  Hayes  v,  Parker,  41 
N.  J.  E({.  630,  tlie  court  say  :  "  It  is,  of 
course,  true  th.it  at  hiw  the  execution  of  this 
paper  [a  release]  by  the  minor  is  voidable. 
Nor  would  'lis  assertion,  made  at  the  time 
of  liis  execution,  that  he  was  of  age  operate 
to  change  his  position  in  a  court  of  law. 
The  fact  that  the  infant  had  by  his  false 
representations  led  the  otlier  contracting 
party  to  negotiate  and  execute  the  con- 
tract, and  injuriously  change  his  position 
even,  would  in  an  action  by  the  adult  to 
enforce  it  be  no  answer  to  the  i)lea  of  in- 
fancy. At  law  it  is  conclusively  presumed 
that  a  p(!rsou  within  the  age  is  unfitted 
for  business,  and  that  every  contract  into 
which  he  enters  is  to  his  disadvantage, 
and  that  he  is  incapable  of  fraudulent 
acts  which  will  estop  him  from  interpos- 
ing the  shield  of  infancy  against  its  en- 
forcement. In  equity,  however,  this  rigid 
rule  has  its  exceptions.  Ecjuity  will  re- 
gard the  circumstances  surrounding  the 
transaction,  the  appearance  of  the  minor, 
his  intelligence,  the  character  of  his  i  ^pre- 
sentations,  the  advantage  lie  has  gained 
by  his  fraudulent  representations,  and  the 
disadvantage  to  which  the  person  deceived 
has  been  put  by  him,  in  determining 
whether  he  should  be  permitted  to  invoke 
successfully  the  plea  of  infancy. "  See,  fur- 
ther, School  District  v.  Bragdon,  23  N.  H. 
507  ;  Oliver  v.  McGlellan,  21  Ala.  675  ; 

»  Catts  V.  Phalen,  2  How.  376,  382  ; 
Bullock  V.  Babcock,  3  Wend.  391 ;  Hanks 
V.  Deal,  3  McCord,  257;  Green  v.  Sperry, 
16  Vt.  390  ;  Lewis  v.  LittlefieUi,  15  Me. 
233  ;  Hartlield  v.  Roper,  21  Wend.  615, 
620  ;  Brown  v.  Maxwell,  6  Hill  (X.  Y.), 
692,  594 ;  Homer  v.  Thwing,  3  Pick. 
492;  School  Dist.  v.  Bragdon,  3  Foster 
(N.  H.),  516;  Walker  v.  Davis,  1  Gray, 
606;  Humphrey  v.  Douglass,  10  Vt.  71  ; 
Bristow  V.  Eastman,  1  Esp.  172.  And  an 
infant  will  not  be  permitted  to  take  ad- 
vantage of  liis  privilege  to  effect  a  fraud  ; 
and,  upon  avoidance  of  the  contract,  he 
will  be  compelled,  upon  equitable  grounds, 
to  make  restitution  of  the  benefits  obtained 
under  it.  Ex  parte  Unity  Banking  Assoc, 
3  De  G.  &  h  63  -,  27  L.  J.  B.  33  -,  Nelson  v. 


Gindry  v.  Davis,  6  La.  Ann.  91  ;  ChrLstiau 
V.  Welch,  7  La.  Ann.  533  ;  Scott  v.  Watson, 
46  Me.  362  ;  Sikcs  v.  Johnson,  16  Jliuss' 
389  ;  Wallace  v.  Morss,  5  Hill,  391  ;  (  onk- 
lin  V.  Thompson,  29  Barb.  213  ;  Wan!  v. 
Vance,  1  N.  &  McC.  257  ;  Huniplnw  i' 
Douglass,  10  Vt.  71  ;  West  v.  Mooie,  li 
Vt.  447  ;  Hutcliing  v.  Engel,  17  Wis.  230. 
The  cases  at  law  in  this  country  sih'Iii  to 
us  to  be  more  consistent  with  .sound  prin- 
ciple than  the  Engli.sh.     The  latter  rest 
on  the  basis  that,  as  virtually  in  all  con- 
tracts made  by  a  minor,  except  for  iieees. 
saries,   there   is   in   the  very  fact  of  his 
undertaking  to  make  a  contract  at  all  an 
actual  or  constructive  fraud  ;  to  allow  an 
action  to  be  brought  against  an  infant  for 
the  fraud  would  be,  in  ettcct,  to  take  away 
all  the  protection  with  which  he  is  clutlieil. 
But  the  decisions  of  both  countries  are  in 
harmony  that  an  infant  cannot  obtain  a 
cancellation  of  his  contract  nnd  retain  the 
fruits  of  the  contract.     If  he  seek  to  annul 
ii.o  contract  he  must  as  far  as  possible  re- 
store the  other  jiarty  to  the  statrnquo; 
and  if  in  repudiating  the  contract  he  ean- 
not  do  this  he  cannot  recover  from  the 
other  contracting  party  the  considt'iation 
which  he  himself  has  paid.     So  it  wouM 
seem  more  consistent  with  the  piini'i]ile 
oil  which  these  decisions  are  based,  that, 
although  an  action  will   not  lie  a>,'ainst 
him  on  contract,  yet  when  through  fraud 
ho  has  obtained  the  money  or  prii|i(rty of 
the  other  contracting  part)',  and  jilcails  his 
infancy  as  a  defence,  thereby  repudiating 
and  disaffirming  the  contract,  he  shouM 
be  compelled  by  a  restoration  of  the  iiKiniV 
or  property  to  remit  the  other  jiarty  to  the 
status  quo.     The  contract  is  voidalilc,  ami 
if  he  elect  to  affirm  it  he  can  do  so.    But 
if  he  disaffirm  it  there  would  sccui  to  be 
no  sound  reason  why  he  should  not,  ai,'iee- 

Stocker,  4  De  G.  &  J.  458  ;  S8  L.  J.  C.  760. 
But,  notwithstanding  his  fraud,  an  aetion 
will  not  lie  against  him  on  the  contract, 
either  to  support  the  contract  or  fur  inju- 
ries resulting  from  its  breacli.  Jolinsoni'. 
Pye,  1  Lev.  169;  1  Keb.  913;  I'rio  i'. 
Hewett,  8  Ex.  146  ;  Liverpool  Addplii 
Loan  Assoc,  v.  Fairhurst,  9  Kx.  4'22; 
Wright  v.  Leonard,  11  C.  B.  n.  s.  2jS; 
Bartlett  v.  Wells,  1  B.  &  S.  836;  De 
Boo  V.  Foster.  12  C.  B.  N.  s.  2?2; 
Stikanan  c.  Dawson,  1  De  0.  &  Sni.  PO. 
And  an  infant  is  liable  in  nssuiiijisit  for 
money  stolon,  and  for  the  proceeds  of  sto- 
len propertv  wlien  converted  into  money. 
Shaw  V.  Coffin,  58  Me.  254.  And  see 
Walker  v.  Davis,  1  Gray,  506. 


~p?'. 


PART  I.] 


SALES  WITH  INFANTS. 


185 


ably  to  tlie  general  trend  of  the  decisions 
in  tliis  couiitiy,  bo  made  answerable  for 
his  toit,  and  be  compelled  to  make  resti- 
tution of  tlie  money  or  property  of  the 
ot!ur  I'oiitractinj;  party,  exactly  as  he 
woiiM  have  to  do  if  he  were  himself  taking 
piurti'dings  for  the  cancellation  of  his 
contnat.  We  think,  decidedly,  that  the 
AiiuMiciin  cases  generally,  and  the  English 
decisions  in  e(iuity  and  bankruptcy,  are 
inori'  consistent  with  sound  principle  than 
are  till'  Kiif^lish  decisions  at  law. 

Ill  the  old  case  of  Savage  v.  Foster,  13 
Viii.  Al).  53fi,  it  was  deciiled  that  it  is  not 
ii(.'('(>sary  tiiat  fciucs  coverts  or  infants  be 
active  in  promoting  a  purchase  if  it  appear 
tliat  thi  y  were  i)rivy  to  it,  and  that  it 
eoulil  luit  be  done  without  their  knowl- 
cilgt'.  Tlieie,  A.  had  two  daughters,  B. 
and  C.  A.  was  tenant  for  life  of  lands, 
rciiiiiiiiilerto  B.,  iijhiic  covert  in  tail.  On 
a  treaty  of  marriage  between  J.  S.  and  C, 
,T.  .S,  insisted  on  £1000,  which  A.  could 
not  give.  IJ.  and  her  husband  encour- 
aged the  marriage,  and  solicited  A.  to  con- 
vey the  entailed  lands  to  J.  S.  and  C, 
which  A.  did.  It  was  de>'.reed  after  A.'s 
death  that  B.  should  be  bound  by  the  con- 
veyance, and  levy  a  fine  on  penalty  of  pay- 
ment of  costs  ;  and  a  perpetual  injunction 
was  granted  to  J.  S.  and  C.  for  quiet  pos- 
session. In  Drury  v.  Drury,  4  Bro.  C.  C. 
506,  note,  Lord  Mansfield,  concurring  with 
Loril  Ilardwicke,  denied  that  either  by  the 
law  of  England  or  any  other  law  every  con- 
tract made  by  an  infant  was  void  ;  that 
contracts  for  necessaries,  such  as  diet,  edu- 
cation, etc.,  were  good,  and  the  infant's 
body  is  liable  to  be  taken  in  execution  for 
tlieni  ;  so  of  a  sum  advanced  for  taking  an 
infant  out  of  jail :  that  infancy  could 
never  authorize  the  committing  a  fraud, 
as,  if  goods  wen?  delivered  to  an  infant,  and 
lie  einbez/led  them,  an  action  of  trover 
would  lie  against  iuni  ;  as,  if  he  took  an 
estate,  and  was  ;o  pay  rent  for  it,  he  should 
not  del'eiul  bin  self  against  payment  of  the 
rent,  and  yet  hold  the  estate  upon  pretence 
of  his  int'ai'y;  and  relied  on  a  case  of 
Watts  V.  Hailswell,  where  the  infant  issue 
in  tail,  bi'ing  eighteen  years  old,  had  en- 
grossed the  mortgage  deed,  and  did  not 
discover  his  right  to  the  mortgagee.  Lord 
Cowper  held  him  bound,  because  being  of 


yeara  of  discretion  ho  had  acted  dishon- 
estly in  not  discovering  his  title.  Clarke 
I'.  Cobloy,  2  Cox,  173,  was  decided  on  tlio 
ground  that  an  infant  shall  not  take  ad- 
vantage of  his  own  fraud,  and  was  not  to 
be  allowed  to  retain  his  wife's  pronussory 
notes,  which  had  k'cn  surrendered  to  him 
on  his  giving  his  bond  for  them,  on  his 
pleading  infancy  to  a  suit  on  the  bond. 
In  Cory  v.  Gertcken,  2  Mudd.  40,  too,  it 
was  held  that  a  minor  could  not  avail  him- 
.self  of  his  infancy  as  a  defence  against 
fraud.  The  court  there  said  :  "  Though  in 
general  a  payment  to  an  infant  may  bo 
bad,  yet  if  the  infant  j)ra(!tises  a  fraud  ho 
is  liable  for  the  conse(iueiice3.  At  law  an 
infant  is  liable  in  tort,  and  cannot  jilead 
his  infancy,  as  where  [a  veiy  strong  case] 
an  action  of  a.ssunipsit  was  brought  against 
an  infant  for  money  embezzled  by  him." 
Bristow  I'.  Eastman,  1  Esp.  i;'2.  In 
Wright  V.  Snowe,  2  I)e  G.  &  S.  321,  324, 
the  court  said  :  "  It  is  too  late  to  deny 
that  an  infant  may  comnnt  a  fraud  to  tho 
prejudice  of  his  civil  rights  ;  but  what 
amounts  to  such  a  fraud  is  often  a  delicate 
question."  In  the  case  at  law,  too,  of  Bris- 
tow i;.  Eastman,  1  Esp.  172,  where  a  minor 
had  been  guilty  of  embi'ZKlement,  and  an 
action  of  assumpsit  for  money  had  and  re- 
ceived was  brought  against  him,  the  action 
was  sustained ;  liOrd  Kenyon  saying  that  he 
was  of  opinion  that  infancy  was  no  defence 
to  tho  action  ;  that  infants  were  liable  to 
acticms  ex  delicto,  though  not  w  cnnlrnctu ; 
and  though  the  present  action  was  in  form 
an  action  of  the  latter  descrijition,  yet  it 
was  of  the  former  in  jioint  of  substance  ; 
that  if  the  jdaintiffs  had  brought  an  action 
of  trover  for  any  ]iart  of  tlie  property 
embezzled,  or  an  action  grounded  on  tho 
fraud,  unquestionably  infancy  would  have 
been  no  defence  ;  and  as  the  object  of  tho 
present  action  was  precisely  the  same,  his 
opinion  was  that  the  si.me  rule  should  ap- 
ply, and  that  infancy  was  no  bar  to  the 
action.  These  princiidcs  clearly  are  more 
in  harmony  with  the  doctrines  established 
by  the  cases  at  law  in  this  country  *han 
they  are  with  some  of  the  recent  cases  at 
law  in  England,  in  which  latter  the  plea 
of  infancy  in  actions  ex  delicto  has  been 
held  as  available  as  in  actions  ex  con- 
tractu. 


"I 


S'  I 


rjii'M' 


186 


COMMENTARIES  ON  SALES. 


[book  II. 


I'H.'l 
ill 


BOOK   11. 


PART  II. 


MENTAL  DISABILi.     :S. 


1.  Insanity.  According  to  some  of  the  highest  of  the  old  com- 
mon-law authorities,^  no  man  could  be  allowed  to  stultify  himself, 
and  avoid  his  acts,  on  the  ground  of  his  being  non  compos  tnentU,^ 


1  Littleton,  §  405 ;  1  Coke's  Inst., 
2476;  Beverley's  Case,  4  Rep.  123 ft. 

'■'  A  great  variety  of  tests  or  detiiiitions 
of  insanity  are  furnished  in  cases  where 
the  issue  of  insanity  or  non-insanity  lias 
been  involved.  Lord  Brougluun,  in  "War- 
ing V.  Waring,  6  Moo.  P.  C.  at  p.  354, 
defines  insanity  to  bo  "The  belief  of 
things  as  realities  which  exist  only  in 
thT  imagination  of  the  patient."  Sir  John 
NichoU,  in  Dew  v.  Clark,  rejiorted  by 
Dr.  Haggard  at  p.  7;  s.  c.  3  Addanis,  79; 
says,  it  is  "A  belief  of  facts  which  no  ra- 
tional person  would  have  believed."  In 
Smith  V.  Tebbitt,  L.  U.  I  P.  &  u.  398, 
both  of  these  are  deemed  unsatisfactory: 
the  first  on  the  ground  that  sane  people 
often  imagine  things  to  exist  which  have 
no  existence  in  reality,  both  in  the  physi- 
cal anil  moral  world;  and  the  second  on 
the  ground  of  fixing  the  limit  of  a  rational 
man's  belief.  The  definition  by  Dr.  Wil- 
lis,  a  man  of  great  eminence,  quoted  in 
Dew  V.  Clark  (supm),  "A  pertinacious 
adherence  U  some  delusive  idea,  in  oppo- 
sition to  plain  evidence  of  its  falsity," 
seems  to  otf  ■.■  surer  ground  ;  but  then  the 
evidence  of  the  falsity  is  to  be  plain,  and 
in  doubtful  cases  the  want  of  such  plain- 
ness is  the  very  difficulty  that  arises.  To 
draw  the  exact  line,  if  there  be  one,  which 
defines  the  limits,  may  be  impossible  ;  but 
to  aflSrm  that  some  instiinces  surpass  it, 
is  not  so.  "No  one,"  says  Burke,  "can 
say  when  twilight  begins  or  ends;  but 
there  is  ample  distinction  between  day 
and  night."  In  Smith  v.  Tebbitt,  L.  1{. 
1  P.  &  D.  398,  the  court  concluded  th.at 
no  tests,  however  elaborate,  beyond  the 
common  and  ordinary  method  of  judging 
in  such  matters,  would  be  competent  to 
bear  the  strain  of  individual  cases  in  the 


course   of  experience,   in    atteniptiii;,'   to 
assign  limits  within  which  extravagmico 
of  thought  is  to  be  [)ronounccd  coinpiitible 
with  .sanity.    In  inijuiring  what  that  com- 
mon and  ordinary  method  of  judgini,'  is, 
and  upon  what  it  is  founded,  the  court 
said  :   "  No  man  knows  aught  of  tlie  con- 
dition of  another's  mind  except  !)y  com- 
parison with  his  own.     And  in  instituting 
this  comparison,  we  recognize  tlie  giMii-ml 
fact  that  all  mankind  are  endowed  with 
the  same  senses,  moved  by  the  like  umo- 
tions,  governed  by  the  same  restraints,  und 
guided  by  the  same  faculties.     All  tlu'se 
vary  in  their  force  and  action  in  dillVient 
individuals,  or  the  same  individual  at  dif- 
ferent times.     But  they  vary  within  ter- 
tain  limits,  and  certain  limits  only.     It  is 
when  the  words  or  deeds  of  others,  ndVrred 
to  our  own  standard,  and  that  wiiicli  by 
experience   is   found   to   be  the   coiiinirn 
standard  of  the   human   race,  appear  to 
transgress   these   limits,  that  we  suspect 
these  common  senses,  emotions,  and  fac- 
ulties, which  we  know  to  exist,  to  lio  the 
subjects  of  disorder  or  disease.      If  tlie 
divergence  be  very  marked,  and  exhibit 
itself  on  many  subjects  or  witli  uiiifonn 
constancy   in   the   behavior  of  the  indi- 
vidual,   we    pronounce    disease    witliout 
hesitation.      In  proportion  as  the  diver- 
gence is  either  casual  or  trilling,  <ir  open 
to  some  other  probable  solution,  tln'  in- 
(piiry  is  difficult,  and  the  judgnii'iit  hesi- 
tates.    Here,  then,  I  think,  is  tin-  simple 
rule  by  which  mankind  in  geiicnil  pro- 
nounce  upon    mental    disease.      But   to 
those   who   have  studied   the   sulijiit  of 
insanity,  another  and  alternative  niuthod 
is  open. 

"There  may  be,  and  no  doiild  are. 
many  whose  insimity  is  suspected  Init  not 


PART  II.] 


MENTAL  DISABILITIES. 


137 


But  this  rule,  iii  modern  times,  has  been  relaxed,  and  unsoundness 
of  mind  is  now  a  good  defence,  generally,  to  an  action  upon  a  con- 


proved  ;  but  in  tho  large  majority  of  the 
iiisiUic,  iiH'iitiil  iliseaso  adinits  of  no  doubt 
whati'ViT.  Tiifir  ideas,  thidr  conduct  and 
di'imanor,  contrast  ut  almost  evury  point 
of  Loiiiiiiiiison  with  those  of  their  fi'llow- 
iiuii.  And  it  is  the  especial  business  of 
those  who  devote  themselves  to  the  miti- 
gation or  cure  of  this  fearful  nnilady  to 
study  the  ways,  and  forms  of  thought  and 
cxpicssion,  wiiich  attend  upon  it;  the  sort 
ot  thini^s  that  the  insane  say  and  do;  tiieir 
hcariiij,'  and  demeanor;  the  occasions  they 
clioiise  or  decline  for  the  exhiltitiou  of 
their  ndinj,'  ideas.  All  these  become  fa- 
miliar 1(1  the  medical  attendant.  Hence 
hi'  is  furnished  with  another  road  by 
which  to  approach  the  determination  of 
insanity  in  a  doubtful  case.  Ho  can  rea- 
son from  the  certainly  to  the  probably 
diseased  mind,  and  is  enabled  to  trace  in 
the  latter  lineaments  which  are  clearly 
niari<ed  in  the  former.  Thus  while  the 
world  at  large  can  only  contrast  tho 
doul)ttul  case  with  the  sane,  the  physi- 
cian has  at  hand  tin;  alternative  contrast 
witii  till!  insane.  It  is  a  consequence  of 
these  alternative  methods  of  judgment 
that  the  (pu'stiun  of  insanity,  though  it 
falls  to  the  lot  of  a  legal  tribunal,  is  prop- 
erly a  mixed  one,  —  partly  within  the 
range  of  common  observation,  and  in  so 
far  ht  to  be  considered  by  a  jury;  jmrtly 
within  the  range  of  sjiecial  experience,  and 
in  so  far  the  projier  subject  of  medical  in- 
ijniry.  It  is  the  oltice  of  the  court,  then, 
to  inform  itself,  as  far  as  opportunity  ])er- 
mits,  of  the  general  results  of  medical  ob- 
servation, and  to  approach  the  subject  of 
the  case  on  the  two  opposite  sides  thus 
imlii'ated,  —  searching  for  a  lit  conclusion 
by  alternately  presenting  the  parallel  of 
sanity  and  insanity  to  the  sayings  ami 
iloinf;s  of  the  deceased."  Per  Sir  J.  P. 
^Vilde,  in  delivering  the  judgment  in 
Sniitii  !■.  Tebbitt.  L.  K.  1  P.  &  I).  398, 
4ti3,  (I  si'ij.  And  see  Waring  v.  Waring, 
6  Moo.  1*.  C.  341;  Thornton  i\  Howe,  31 
Beav.  11;  Svnies  v.  Green,  1  Sw.  &  Tr. 
401 ;  Nottidge  v.  Prince,  2  CHW  24tJ ; 
Wood's  Casi-,  27  State  Trials,  at  i>.  1315; 
I'riiisep  V.  Dvce  Sombre,  10  Moo.  P.  C. 
232;  Dew  r.'ciark.  3  Addnms,  79.  Sir 
John  NiehoU,  in  Dew  v.  Clark  {stipra), 
says;  "The  true  criterion  —  the  true  test 
—  of  tlie  absence  or  presence  of  insanity, 
I  take  to  be  the  ab.sence  or  pre.sence  of 
what,  used  iu  a  certain  sense  of  it,  is 
cian]irisalile  in  a  single  term, — delusion, 
>\  lienever  the  jiatient  once  conceives  some- 
thing extravagant  to  exist,  which  has  still 
no  existence  whatever  but  in  his  own 
heated  inuigination,  and  whenever,  at  the 


same  time,  having  once  so  conceived,  he 
is  incapable  of  being,  or,  at  least,  of  being 
jiermanentlj',  reasonetl  out  of  that  concep- 
tion, such  a  patient  is  .said  to  be  under  a 
delusion  in  a  iieculiar,  half-technical  sense 
of  tho  term;  and  the  absence  or  presence 
of  delusion,  .so  unilerstood,  fornis,  in  my 
judgment,  the  true  ami  only  test  or  cri- 
terion of  absent  or  present  insanity."  See 
also  Cartwright  i-.  Cartwright,  1  Phill.  Ec. 
1{.  90;  Austen  v.  Graham,  8  Moo.  P.  C. 
493  ;  Miidway  v.  Croft,  3  Curt.  675  ;  The 
Queen  v.  Hill,  2  Den.  C.  C.  254;  McAdam 
V.  Walker,  1  Dow,  178. 

Tho  ipiestion  as  to  what  is  lunacy  came 
up  before  Hud.son,  J.,  in  Kobertson  v. 
Lyon,  24  S.  (.'.  266,  iu  an  action  to  vacate 
a  finding  of  lunacy,  when  the  court  said: 
"In  this  present  iuciuiry  lumicy  is  a  term 
of  general  im][)ort,  embracing  every  kind 
of  insanity  or  unsoundness  of  mind  that 
incapacitates  a  person  to  attend  to  the 
ordinary  business  of  life.  It  is  not  a  mere 
weakness  of  mind,  nor  a  want  of  good 
business  talent,  nor  is  it  thoughtlessness 
and  improvidence  in  business.  Men  of 
sound  miiul  are  frequently  spendthrifts. 
Such  have  the  full  right  to  use,  enjoy, 
waste,  and  destroy  their  property,  and  it 
is  nobody's  business  nor  right  to  interfere. 
Some  nuui  waste  their  all  in  gambling  and 
dissii)ation,  but  cannot  be  pronounced 
insane  in  the  jiroper  sense  of  the  word. 
That  unsoundness  of  mind,  that  lunacy, 
which  we  are  iixpiiring  after  in  this  issue, 
is  such  an  unsoundness  of  mind  as  is  evi- 
denced by  a  total  absence  of  sufficient  nusn- 
tal  cajiacity  to  attend  to  the  ordinary  busi- 
ness of  life.  When  one  is  entirely  inca))ablo 
of  caring  for,  controlling,  and  managing 
Iiis  own  person  and  jiroju-rty,  he  ie,  in  the 
eye  of  tlie  law,  a  lunatic,  reciiuring  a  guar- 
dian. This  may  arise  from  various  causes, 
and  among  them  from  old  age,  when  it  is 
termed  scni/i.i  denKnliu.  It  happens  when 
the  body  outlives  the  mind.  ...  A  nmi 
coinpoK  mentis — a  lunatic — is  a  jierson 
who  is  so  far  deprived,  from  any  cause,  of 
intelligence  and  sense  as  to  be  incapable 
of  caring  for  and  managing  his  person  and 
property,  and  who  for  that  purpose  ab.so- 
lutely  refjuires  a  guardian.  '  In  PMtz- 
gerald  v.  Slielton,  95  N.C.,  with  reference 
to  the  evidence  to  prove  insanity,  the 
court  said:  "A  very  great  variety  of  facts 
oftentimes  make  evidence  tending  to  prove 
the  insanity  of  a  person  alleged  to  be  in- 
sane. If  his  general  course  of  conduct,  his 
methods  of  business,  his  particular  business 
transactions,  his  conversation,  his  decla- 
rations made  from  time  to  time,  his  or- 
dinary speech,  his  s{)eech  and  actions  on 


iH!i 


5? 


hi' 


\& 


m  ■ 


138 


COMMENTARIES  ON   SALES. 


[book  II. 


tract,  if  it  can  be  shown  that  the  defendant  was  not  of  capacity  to 
contract,  and  the  plaintiff  knew  it.^    But  when  a  person,  apparciitly 


pai'tiuular  ouca.sioii!«,  liis  habits,  are  very 
euueutric,  tbulisli,  uiinutural,  absurd,  and 
shuukiii^'  to  reasonable  iH;o[ilt!,  what  hu  so 
Hays  and  does  is  uvidi-nce  to  prove  that 
he  is  insane.  Snoli  (ividcnce  would  be 
stronger  or  weaker  in  projiortiou  to  the 
degree  of  absurdity,  unreasonableness,  and 
unnaluralncss  of  what  sue!)  person  so  did 
and  said.  It  might  be  very  strong  ;  it 
might  bo  so  very  sligiit  as  not  to  1)0  sulii- 
cieiit  to  go  to  the  jury  at  all.  Merely  im- 
moral, vieioiis,  and  criminal  acts  would 
iiot«f  themselves  bo  evidence  of  insanity; 
but  they  miglit  bo,  in  connection  with 
other  facts.  In  nu  ini[uiry  in  such  re- 
spect, it  becomes  necessary  and  pertinent 
to  scrutinize  the  transactions,  declarations, 
and  conduct  of  the  p  irty  whoso  sanity  is  in 
question,  with  a  view  to  asciu'tain  whether 
or  not  the  same  are  inderd  absurd,  unrea- 
sonable, and  unnatural.  It  is  not  every 
act  tliat  seems  ti>  he  thus  that  is  so  in 
fact.  It  freiiuently  ''irus  out  that  what 
so  appears  is  just  the  reverse,  and  tends 
to  prove  the  intelligence  and  wisdom  of 
the  person  doing  the  act  in  (piestion. 
Hence  explanatory  evidence  as  to  the  rea- 
sonableness, naturalness,  justice,  and  wis- 
dom of  the  particular  acts  or  transactions 
relied  upon  as  evidence  of  insanity,  is 
competent."  And  S(;e  l{;u'bo  v.  Rider,  G7 
Wis.  598  ;  In  re  Will  of  Chapin,  32  Wis. 
657;  Li  re  Will  of  Coh;,  49  Wis.  179; 
Wright  V.  Jackson,  59  Wis.  584;  For- 
Fine's  Case,  41  N.  J.  Ecp  409  ;  Brower  v. 
Fisher,  4  Johns.  Ch.  441;  //(.  re  Barker, 
2  Johns.  Ch.  232 ;  Dic;kenson  v.  Bliss(;t, 
1  Dick.  263 ;  Gibson  v.  Joyes,  6  Vcs.  2G7, 
273  ;  Ridgway  v.  Darwm,  8  Ves.  (55  ;  Ex 
parte  Cranmer,  12  Ves.  445 ;  Riggs  i'. 
American  Home  Missionary  Society,  35 
Hun,  650;  Jackson  v.  Jackson,  37  Hun, 
306;  English  v.  Porter,  109  111.  285;  Doty 
V.  Hubbard,  55  Vt.  278  ;  Pavey  v.  Win- 
trodo,  87  Ind.  379;  Wollf  y.  Connecticut 
Mutual  Life  Ins.  Co.,  2  Flip.  C.  Ct.  355; 
lie  Helmbold,  12  Phila.  424.  Although 
the  mind  of  an  individual  may  be  to  some 
extent  impaired  by  ago  or  disease,  still  if 
he  be  callable  of  transacting  his  ordinary 
business  his  acts  will  be  valid.  English 
V.  Porter,  109  111.  285,  291  ;  Meeker  v. 
Meeker,  75  111.  266 ;  Trish  v.  Newell,  62 
III.  196;  Pickerell  v.  Morss,  97  111.  220  ; 
Lindsey  u,  Lindsey,  50  111.  79.  When 
lunacy  is  once  established,  the  burden  is 
on  the  party  claiming,  through  any  act 
of  the  lunatic,  to  show  that  it  was  done  in 
a  lucid  interval.  Wright  v.  Jackson,  59 
Wis.  569,  576;  Ripley  v.  Babcock,  13  Wis. 
425.  The  adjudication  of  insanity  fixes 
the  legal  status  of  the  party  as  to  his  in- 


capacity to  make  contracts.  Redileii  v. 
liaker,  8G  Ind.  194 ;  L'Anioureiix  v. 
Crosbv,  2  I'aigo,  422 ;  Wadswortli  v. 
Sharpsteen,  8  N.  Y.  388  ;  Wadswortli  v. 
Sherman,  14  Barb.  169;  Fitzhugh  y.  Wii- 
cox,  12  ISarb.  235  ;  Leonard  v.  LedinuiJ, 
14  Pick.  280;  Imhoirw.  Witmer's  Adiurs., 
31  Pa.  St.  243. 

'  Dane  v.  Viscountess  Kirkwall,  8  C. 
k  P.  679;  Gore  v.  Gilison,  6  M.  &  W.  t;.':j; 
Mitchell  V.  Kingman,  5  Pick.  431;  lliie 
V.  Feet,  13  Johns.  543;  Grant  v.  TliDiiiii- 
son,  4  Conn.  103;  Seaver  v.  Plu'ljis,  11 
Pick.  304;  Barsell  v.  Chancellor,  5  Wliurt. 
374;  Yates  V.  IJnen,  2  Str.  1104;  Cole  v. 
Robins,  Bull.  N.  P.  172;  Cooke  y.\:iay. 
worth,  18  Ves.  12;  Baxter  v.  Earl  of  Ports- 
mouth,  5  H.  &  C.  170;  Browuo  v.  Joil- 
drell,  M.  &  Malk.  105. 

In    Browne   c.   Joddrell,   M.  &  M.ilk, 
105,   in   an  action   of  assumpsit,  the  de- 
fenet;  relied  on  was  unsoundness  of  inind ; 
but  it  was  not  claimed  that  the  pliiiititf 
was  aware  of  the  deleiidanl's  malady,  or 
had   in    any   way   been   guilty  of  liaiid. 
Lord   Tonterden   was   willing    to   recuivc 
the   evidence  ofFered,    but  held  that  the 
defence  would   not   avail    unless  it  were 
showji  that  the  plaiutilf  imiiosed  on  tiie 
defen<lant.     Lord  Teiiterdcn  said;  "Tiie 
old  cases  go  the  length  of  saying  that  a 
party  shall  in  no  case  be  allowed  to  si't  up 
his  own  insanity.     That,  I  think,  is  tuo 
general  a  rule.     If  you  can  show  that  any 
means  were  used  to  impose  upon  a  [kisoii 
of  weak  or  unsound  mind,  I  think  that  in 
this,  as  in  all  other  cases  of  liaml,  it  is 
an  answer."     And  in  Levy  v.  Baker,  M. 
&  Malk.   106,  note  h,  which  was  also  an 
action  of  assumpsit,  it  was  proved  that  at 
the  time  of  the  transactions  the  derciidant 
was  manifestly  insane,  and  evidence  was 
given  of  fraudulent  advantage   taken  hy 
the  plaintiff.     Best,  C.  J.,  after  argument 
on  the  admissibility  of  the  defence,  left  it 
to  the  jury  to  say  whether  the  ]daintitt', 
at  the  time  he  dealt  with  the  detVndant, 
knew  of  his  insanity.     If  he  di<l,  it  was  a 
gross  fraud,  and  the  jury  ought  to  find  for 
the  defenilant,  which  they  did.     Where 
R.  was  at  the  time  of  executing  a  mort- 
gage notoriously  insane,  and  was,  to  tlie 
knowledge  of  the  mortgagee,  in  a  state  of 
imbecility,    the   mortgage   was  aniiiilleJ, 
although  at  the  time  of  making  the  mort- 
gage R.  had  not  lieen  interdicted.    Fecel 
Admr.    v.   Guinault,    32    La.    Ann.  91. 
And  where  a  contract  is   .set  aside  be- 
cause one  of  the  parties  to  it  is  notori- 
ously insane  at  the  time  of  making  it,  the 
doctrine  of  restitutio  ad  integrum  will  only 
be  applied  to  the  extent  that  the  insane 


PAKT  II.] 


MENTAL   DISABILITIES. 


189 


of  sound  mind,  and  not  known  to  bo  otherwise,  enters  into  a  contract 
for  the  |)urchase  of  property  which  is  fair  and  bona  fide,  and  which 
is  oxt'cutcd  and  completed,  and  the  property,  the  subject-matter  of 
the  cuiitnict,  lias  been  paid  for  and  fully  enjoyed,  and  cannot  be 
restored  so  as  to  put  the  parties  in  statu  (jho,  the  contract  cannot 
afterwards  be  set  aside,  either  by  the  alleged  lunatic  or  those  who 
represent  him.^ 


piTsuii  lias  (li'vivod  benefit  from  tho  con- 
siili  Tiiiiiiii  iciiiveil  lor  his  coiilnict.  Lcffiiy 
V.  M.iistim,  Wi.  \m.  Ann.  170.  In  Anglo- 
Ciililoniian  Itaiik  v.  Ames,  27  Fed.  \i^^\). 
727,  it  was  lu'lil  that  thi'  ncjjotiabli!  \m[KV 
oljtaiiit'il  liuni  an  insanu  |iersoii  by  t'laud 
auil  ilii(|ition,  and  without  consiih'nition, 
enuld  nut  \w  colluotcil  by  an  innocent  pur- 
I'liasii'  witliDiit  notici'.  Si^o  also  Dexter  v. 
Hall,  i:.  Wall.  20;  Wirebueh  v.  First  Nat. 
Bank,  i'7  I'a.  43  ;  Moore  v.  Hershey,  9 
Nunis,  I'.iO;  Mct'lain  i;.  Davis,  77  Ind. 
41!);  linrke  v.  Allen,  29  N.  II.  lOO;  Mar- 
vin V.  In.u'iis,  39  How.  (N.  Y.)  329.  On 
the  i|ULstic)n  of  knowledge  of  insanity,  tlie 
giin  lal  rule  is  that  iib.sence  of  knowledge 
of  till!  iii.Minity  of  the  jiarty,  as  well  us 
faiiiu'ss  in  other  respects,  must  concur  to 
;;ive  v.ijidity  to  a  contract  with  a  luiiatii;. 
KiiMwh'dge  or  information  such  as  would 
leail  a  prudent  jier.son  to  the  belief  of  the 
iiira|iaiity,  is  such  evidence  of  bad  faith 
as  will  avoid  the  contiaet.  Jlatthie.s.sen  & 
Wfidiiis  lieirig.  Co.  v.  McMahou's  Adiiir., 
3S  X.  .1.  L.  53();  Lincoln  v.  Buckmaster,  32 
Vt.  (iiVJ.  See  Price  v.  Berrington,  7  Hare, 
402;  Klliotl  v.  luce,  7  He  U.  AL  &  V,. 
47,'/;  X-AW'fi'X  V.  Skinner,  1  McCart.  389; 
Eatuii  c.  iiaton,  8  Vrooni,  108  ;  .Matthews 
V.  haxter,  L.  K.  8  Ex.  132.  And  where 
one  who  haii  no  capacity  to  make  con- 
ti'iii'ts  or  transact  business,  and  his  want 
of  suuli  cajiacity  was  apparent  to  any  per- 
son ut'didinary  prudence  and  observation 
wlio  iiiigiit  converse  with  him,  exchanged 
lioisfs  with  the  defendant,  it  was  held 
that  the  guardian  of  the  insane  man  could 
recover  hack  the  liorse  given  by  his  ward 
to  the  defendant,  without  being  compelled 
to  restore  the  defendant's  horse.  Halley 
V.  Twester,  72  Mo.  73.  See  Tolson  v. 
l-Jarner,  15  Mo.  494  ;  Farley  v.  I'aiker,  6 
Oregon,  105  ;  Dexter  v.  Hall,  15  Wall, 
20;  Henry  v.  Fine,  23  Ark.  417;  Lan- 
ca.ster  Co.  Bank  i\  Moore,  78  Pa.  407; 
liuskr.  Feiiton,  14  Bush,  490;  Betts  v. 
CaiTull,  ()  Mo.  App.  518. 

'  Molton  V.  Camroux,  2  Ex.  487,  18 
L.  J.  Ex.  tJ8,  alHrmed  in  error,  4  Ex.  17, 
18  L.  J.  Ex.  356.  And  see  Howard  v. 
The  Kail  of  Digby,  2  Cl.  &  Fin.  634;  Wil- 
liams V.  Wentworth,  5  Beav.  325  ;  Selby 
V,  Jackson,  6  Beav.  192  ;  Niell  v.  Morley, 
9  Ves.  478;  Browne  v.  Joddrell,  3  C.  &  P. 


30,  per  Lord  Tenterden  ;  Beals  v.  Soo,  10 
Barr,  5ti ;  La  Hue  ;;.  (iilky.son,  4  Barr, 
375;  Beaven  v.  .MiDonneli,  9  Ex.  309; 
ElHot  V.  Ince,  7  De  (!.  .M.  &  ti.  475. 

Courts  of  eipiity  have  long  recognized 
tho  principle  that  the  contnnt  of  a  person 
not  liaving  siiliicient  mental  capacity  to 
enter  into  such  contract,  altluiugh  not 
wholly  nun  compiK,  may  be  avoideil  under 
certain  circumstances,  provided  it  can  bo 
done  without  injustice  to  the  opposite  con- 
tracting party.  But  when  the  iiarty  con- 
tracting with  the  lunatic  acted  in  good 
faith,  without  knowdedge  of,  or  rea.son  to 
suspect,  Ids  mental  incapacity,  and  tho 
party  cannot  bo  put  in  ntnta  quo,  a  court 
of  enuity  will  not  interfeie  to  .set  aside 
the  contract.  Biggs  v.  American  Tract 
Society,  26  Ilun  (X.  Y.),  481,  488; 
Loomis  V.  Spencer,  2  Paige,  158  ;  Price 
V.  Barrington,  15  Jur.  999  ;  3  Mac.  &  G. 
486;  Spraguey.  Duel,  11  Paige,  480;  Neil 
V.  Morley,  9  Ves.  478  ;  Person  v.  Warren, 
14  Barb.  488;  Dane  v.  Kirkwall,  8  C.  & 
P.  679;  Tarbuck  v.  Bisphain,  2  M.  &  W. 
6.  Where  a  person  has  been  perniittcd  to 
act  entiiely  at  his  own  discretion,  and  to 
do  all  the  acts  which  the  most  .sane  man 
is  intrusted  to  execute,  anil  this  course 
has  b(!en  going  on  with  the  knowledge  of 
all  his  family  who  had  any  interest  in,  or 
feeling  about,  the  management  of  Ids  af- 
fairs, the  olUcer  to  whom  the  jurisdiction  in 
lunacy  is  contided  will  be  very  cautious  be- 
fore he  establishes,  on  the  petition  of  those 
parties,  a  commission  which  is  sought  to 
nave  a  retrospective  operation,  and  to  af- 
fect tran.sactions  which  took  place  whilst 
the  alleged  lunatic  was  allowed  to  act  as 
if  he  were  sane,  and  to  deal  with  a  variety 
of  jiersons  who,  without  any  unfairness  on 
their  part,  would  be  involved  in  the  con- 
sequences of  establishing  .such  a  eonunis- 
sion.  E.C  jyirte  Hall,  7  Ves.  264.  The 
ca.se  of  Molton  v.  Camroux,  2  Ex.  487, 
4  Ex.  17,  was  decided  on  the  principle 
that  an  executed  contract,  when  the  par- 
ties have  been  dealing  fairly,  and  in  ig- 
norance of  the  lunacy  of  the  l»arty  with 
whom  they  were  contracting,  should  not 
afterwards  be  set  aside.  This  decision,  as 
we  state  in  the  text,  was  approved  in  Elli- 
ott V.  Ince,  7  De  G.  M.  &  G.  475,  as  one 
of  necessity,  and  it  was  declared  that  a 


1} 


N 


;   ■:  -In  i; 


.1: 


5    V 


1 


140 


COMMENTARIES  ON  SALES. 


[book  II. 


PART   11 


r  !i    I 


' 


I!  hU 


'      I 


And,  therefore,  in  a  case  where  a  lunatic  purchased  annuitioa 
for  his  life  of  a  society  which,  at  the  time,  had  no  knuwlcdge  of 
his  unsoundness  of  mind,  the  transaction  being  in  the  ordinary 
course  of  human  affairs,  and  fair  and  bond  fide  on  the  part  of  tiio 
society,  it  was  held  tliut,  after  the  death  of  the  lunatic,  his  persunal 
representatives  could  not  recover  from  the  society  the  premiums 
paid  for  the  annuities.^  And  in  another  case,  the  plaintiff  cun- 
tracted  to  purchase  an  estate  from  the  defendant,  and  i)ui(l  a 
deposit  on  the  terms  that  unless  he  objected  to  the  title  within  a 
certain  time,  the  same  should  be  considered  as  accepted.  No 
objection  was  made  by  him  to  the  title.  The  plaintiff  at  the  time 
of  the  contract,  and  of  the  jiaymont  of  the  deposit,  was  a  lunatic 
incapable  of  understanding  the  meaning  of  a  contract  or  of  man- 
aging his  affairs,  and  derived  no  benefit  from  the  contract,  but 
these  facts  were  unknown  to  the  defendant,  who  made  the  contract 
with  him  fairly  and  bond  fide,  believing  him  capable  of  under- 
standing the  same.  It  was  held,  that  as  the  contract  was  entered 
into  by  the  defendant,  and  the  money  received  fairly  and  in  good 
faith  and  without  knowledge  of  the  lunacy,  and,  so  far  as  con- 
cerned the  deposit,  the  transaction  was  completely  executed,  the 
plaintiff  was  not  entitled  to  a  return  of  the  money  so  dcpositod.^ 


contrary  doctrir  would  rniider  all  ordinary 
dealings  between  man  andniiiii  unsafo.  The 
sumo  doctrine  has  been  acb'il  on  ir  many 
01  'r  cases.  In  re  Heckwith,  3  H'.u,  443; 
Can,  'd  V.  Fairbanks,  63  Barb.  4(il;  Lan- 
caster i*v  Bank  v.  Moore,  78  Pa.  407; 
"Wielderu.  ".'ey,  34  Ind.  181;  Matth- 
iessen  v.  Mo.u  -n,  38  N.  J.  L.  536; 
Behrens  o.  McKeUi.  23  Iowa,  333;  Mu- 
tual Life  Ins.  Co.  v.  Hunt,  79  N.  Y.  5'i; 
Shoulters  i'.  Allen,  51  Miuh.  529;  Nauu  v. 
Boyer,  30  Pa.  99;  Henilerson  v.  McGregor, 
30  Wis.  78;  Young  v.  Stevens,  48  N.  H. 
133;  Hol'i'ick  v.  Garvey,  66  Iowa,  14  ; 
Scanlan  v.  i'obb,  »">  111.  296.  In  this 
las'-i;ued  ca.'s  it  is  said  that  the  English 
doctrinn,  awl  that  generally  recognized  by 
the  f'Oi.i'm  m  this  country,  is,  where  a  pur- 
chas;;  fruin  an  in.sane  person  is  made  and 
a  conveyance  obtained  in  good  faith  for 
a  sutficient  consideration,  and  without 
knowledge  of  the  insanity,  the  considera- 
tion must  be  returned  before  the  convey- 
ance will  be  avoided.  And  the  courts 
have  gone  further,  and  held,  that  where 
persons  apparently  of  sound  mind,  and 
not  known  by  the  adverse  party  to  be 
otherwise,  enter  into  a  contract  which  is 


sent  him.  Eaton  v.  Eaton,  8  Vrooin,  108; 
Niell  V.  Morlcy,  9  Yes.  478;  Moltoii  v. 
Camro  \,  2  E.\.  4S7;  Carr  r.  Holiday,  5 
Ired.  El,.  167;  SpragU(!  i'.  Duell,  11  raij.'e, 
480;  Lavere  v.  Gilkyson,  4  Harr,  ;i75 ; 
Beale  v.  Lee,  10  Barr,  56;  McCorniick  v. 
Littler,  85  111.  62.  But  though  ciiuity 
in  some  cases  will  protect  pcrson.s  dealiiij; 
in  good  faith,  and  without  knowli'ilirt', 
with  lunatics  who  appear  to  be  ralioiiiil; 
yet  iu  no  case  will  a  contract  with  siu'h  a 
person  be  uphcM  as  between  themsi'lves 
when  the  transaction  la  without  any  con- 
sideration. In  such  a  cose,  as  the  insane 
person  has  received  no  benefit,  and  the 
other  i>arty  sutt'ered  no  loss,  no  e(]uity  can 
arise  in  favor  of  the  other  party.  Hull  v. 
South,  109  Ind.  315;  Manning  v.  Cill, 
L.  It.  13  E(i.  485.  See,  further,  (iiibben 
V.  Maxwell,  34  Kan.  8;  Lozear  v.  Shields, 
23  N.  J.  E(i.  509  ;  Darren  v.  \\'U\h;  42 
N.  J.  E(i.  569  ;  Surles  v.  Pipkin,  b!>  N.  C. 
513;  Sawyer?;.  Lufkin,  56  Me.  308;  Van 


Horn  V.  Haun,  39  N.  J.  L.  207-  Wluie 
a  guardian  carries  on  the  business  of  an 
insane  person,  parties  dealing  with  the 
guardian  only  as  such  cannot  hohl  the 
guardian  personally  liable  for  debts  eon- 
fair  and  bond  fide,  and  which  is  executed  tracted  in  carrying  on  the  business  of  the 
and  completed,  and  the  property  which  is  insane  person.  Western  Cement  Co.  i'. 
the  subject  of  the  contract  cannot  be  re-  Jones,  8  Mo.  App.  373. 
stored  so  as  to  put  the  parties  in  statu  quo,  i  Molten  v.  Camroux,  supra. 

such  contracts  cannot  be  set  aside  either  *  Beavon   v.    McDonnell,   9   Es.  309; 

by  the  alleged  lunatic  or  those  who  repre-     23  L.  J.  Ex.  94.     The  same  doctrine,  in 


Tl.oi 

into  by 

otiior  C( 

if  fair,  I. 

ca.sos  wl 

eijin'ty  ',v 

T-;  vitin 

must  1)0 

euni.staiK 

a  rca.son.i 

of  iinsdui 

lionl  V. 

tlin.s :  "  'J 

contracts, 

raiico  of  t 

wlnV'li  mil 

deci.sion  w 

who  sold  1 

mind  ?  .  . 

iiiirs  by  wa 

'>"(  aftorw 

agaiii.st  the 

porson  of  c 

IJiit  it  Ji 

elTwt    is  held 
Snu  .t  (J.  1;-,; 
i'.  Viscountess 
Klli„tt  V.   Inc( 
^«l-.l.  ch.  S: 
'  l-viilcni.'c 
the  insanity  of 
liooti  in  wliidi 
to  prove  tlnit  ; 
"'■It  fact.     (Jiv 
2S4;  24  L.  J.  ( 
Pviilcnuo  of  ins 
''iJ««'-    I'.    C. 
2  Atk.  340;    9 
I'uistian,  1    K 
-9.  31';  ifochfor 
of';    lianiusiy' 
/''winlcsof  jud 
1"  cases  of  {„s,i 
iiett  V.  Va,I(.,  2 
^  H.issard  V. 

/"econrt(|uoteis 
'loin  Story'.s  v2 

"■;'■  'l'<"'e  laid  ,i: 
"Pon  which  cou 
f  i;^'  to  .set  aside 
f>;^ts,  howover  so 
'J'"ts,  lunatics, 


m 


PART  H.] 


MENTAL  DISABILITIES. 


141 


Tlio  rulo,  both  of  law  and  of  equity,  as  to  a  contract  entered 
into  by  a  i)cr8on  apparently  of  sound  mind,  and  not  known  by  the 
otlier  contracting  party  to  be  insane,  is,  that  such  a  contract, 
if  fiiir,  fiond  Jiilc,  and  completely  executed,  is  valid  ;  and  even  in 
cases  where  the  contract  may  possiljly  be  void  at  law,  courts  of 
equity  will  not  interfere  to  set  it  aside,  except  in  the  case  of  fraud. 
T)  vitiate  a  contract,  the  knowledge  of  the  lunacy  or  incapacity 
must  1)0  not  merely  actual,  but  presumably  sulVicient,  from  cir- 
cumstances known  to  the  other  contracting  party,'  to  lead  him  to 
a  reasonable  conclusion  that  the  jjcrson  with  whom  he  is  dealing  is 
of  unsound  mind.'^ 

Lord  ('ranworth,  in  Elliott  v.  Ince,^  put  the  reason  of  the  rule 
thus :  "  The  principle  in  Molton  v.  Camroux  *  was  that  executed 
contracts,  where  the  parties  had  been  dealing  fairly,  and  in  igno- 
rance of  the  lunacy,  should  not  bo  set  aside.  This  was  a  decision 
which  miirht  be  described  as  a  decision  of  necessity.  A  contrary 
decision  would  render  all  dealings  unsafe.  How  was  a  shoi)-keeper 
who  sold  his  goods,  to  know  whether  the  customer  wjia  of  unsound 
minil  ?  .  .  .  The  result  of  the  authorities  appeared  to  be  that  deal- 
intrs  by  way  of  sale  and  purchase  by  a  person  apparently  sane, 
l)iit  afterwards  found  to  be  insane,  woidd  not  be  set  aside  as 
aiiainst  those  who  had  dealt  with  him  on  the  faith  of  his  being  a 
person  of  competent  understanding." 

15ut  it  has  been  generally  held  in  this  country,  not  only  that 


l309; 
L'.in 


elTuit  is  hfld  in  Canipbell  v.  Hooppr,  3 
Sill,  k  V,.  1;)3;  'J4  L.  J.  Cii.  644;  Dime 
V.  Viscountess  Kirkwall,  8  C.  &  P.  679; 
Elliott  V.  IiK't",  7  Do  G.  M.  &  G.  475; 
26  1..  .1.  eh.  821. 

1  Kviilcncc  of  the  general  reputation  of 
thi>  insanity  of  a  person  in  the  iieiglilior- 
liooil  ill  wliiili  he  resides  is  inadmissible 
to  ]irove  that  a  person  was  cof^ni/.ant  of 
tliiit  fact.  Oreenslade  v.  Daie,  20  Beav. 
2S4;  24  L.  J.  Ch.  490.  See  fmther  as  to 
eviilcnce  of  insanity,  Hume  v.  Burton,  1 
Itid^'w.  P.  C.  211;  Clark  v.  Periani, 
2  Atk.  310;  9  Mod.  346;  Blatchford  v. 
niri.^tiiin,  1  Knapp,  73;  1  Hale,  P.  V. 
29,  3(1;  liochfoi't  v.  Ely,  1  Kidgw.  P.  C. 
532 ;  liiiniusly's  Case,"  2  Kii-  Abr.  580. 
The  rules  of  judging  in  equity  and  at  law 
ill  cusi's  (if  insanity  are  the  same.  Ben- 
nett V.  Vaile,  2  Atk.  327;  9  Mod.  312. 

■^  Hassard  v.  Smith,  6  Ir.  R.  Eq.  429. 
The  loiirt  ijuotes  approvingly,  in  this  case, 
from  Story's  Kq.  Jur.,  §§  227,  228,  the 
rule  there  laid  down,  thus  :  "  The  ground 
upon  which  courts  of  equity  now  inter- 
fere  to  set  aside  the  contracts  and  other 
nets,  however  solemn,  of  persons  who  are 
idiots,  lunatics,  and  otherwise  non  coni' 


potcH  mentis,  is  fraud.  And  so,  if  a  pur- 
chase is  made  in  good  faith,  without  any 
knowledge  of  the  incapacity,  and  no  ad- 
vantage has  been  taken,  coiiits  of  equity 
will  not  interfere  to  set  aside  the  contract, 
if  injustice  will  bo  thereby  done  to  the 
other  side,  and  the  parties  cannot  be 
placed  ill  sditu  quo,  or  in  the  state  in  which 
they  were  befoi;;  the  iiurcluise."  In  Niell 
i;.  Jlorley,  9  Ves.  482,  Sir  Wi'liain  Grant 
refused  to  interfere,  and  leii  the  party 
seeking  to  invalidate  an  executed  con- 
tract, entered  'iito  bond  fuli:  and  without 
knowledge  of  the  jdaintiirs  insanity,  to 
his  remedy,  if  an}',  at  law.  And  in  Price 
V.  nerriiigton,  3  McN.  &  G.  496,  Lord 
Truro  acted  ujioii  the  same  jiriiiciple, 
and  dismissed  a  bill  to  set  aside  a  convey- 
ance, although  the  jury,  on  an  issue  di- 
rected by  Lord  Langdale,  iiad  found  that 
the  grantor  was  not  of  sound  mind  when 
he  executed  it,  he  having  been  already 
found  a  lunatic,  by  inquisition,  from  a 
dAte  anterior  to  the  conveyance,  and 
without  lucid  intervals. 

8  7  Dc  "  M.  &  G.  475;  26  L.  J.  Ch. 
821. 

*  2  Ex.  487,  affirmed  4  Ex.  17. 


m 


j'  ■ 


\s 


I  'i 


142 


COMMENTARIES   ON   S\LES. 


[book  II. 


I'i  I 


ii  ' 


executory  contracts  made  by  a  lunatic  cannot  be  enforced,^  but 
that  executed  contracts  not  made  for  necessaries  can  be  rescinded.^ 
And  wh(;re  the  consideration  is  very  inadequate,  a  court  of  equity 
or  an  impartial  jury  will  closely  scrutinize  the  facts,  and  will  give 
weight  to  slight  evidence  of  imposition  and  circumvention  wiion 
one  of  the  parties  is  of  weak  intellect ;  ^  and  to  set  aside  promis- 
sory notes  on  the  ground  of  mental  incapacity,  it  is  not  ncccssai-v 
to  prove  partial  derangement.  It  is  sufficient  if  there  appears 
such  weakness  of  mind  as  to  incapacitate  the  party  to  guard  him- 
self against  imposition  and  undue  influence.*  Jiut  a  want  of  abso- 
lute and  perfect  soundness  of  mind  does  not  necessarily  aft'ect  the 
capacity  to  make  a  valid  contract,  provided  the  mind  is  still  capa- 
ble of  fully  comprehending  the  import  of  the  act.'' 

And  the  cases  in  the  United  States  Supreme  Court  estaljlisli  the 
proposition  that  extreme  weaJiuess  of  intellect,  even  when  not 
amounting  to  insanity,  in  the  person  executing  a  conveyance,  may 
be  sufficient  ground  for  setting  it  aside  when  made  upon  a  nomi- 
nal or  grossly  inadequate  consideration.^  But,  like  the  contract 
of  an  infant,  that  of  a  lunatic  is  voidable  and  not  void.'' 

In  both  countries,  however,  the  law  is  the  same,  that  a  lunatic 
may  contract  for  necessaries  suitable  to  his  degree,  and  that  an 
action  will  lie  against  him  for  necessaries  suitable  to  his  degree, 
notwithstanding  an  inquisition  of  lunacy,  and  notwithstanding  the 
party  supplying  the  necessaries  to  his  order  had  notice  of  his  inca- 
pacity in  any  other  way.^ 


1  Grant  v.  Thompson,  4  Conn.  203; 
Long  V.  Whidden,  2  N.  H.  435;  Mitchell 
V.  Kingman,  3  Pick.  43i. 

2  Sewer  V.  Phelps,  11  Pick.  304;  Fitz- 
gerald V.  Reed,  9  Sm.  &  M.  94;  Johnson 
r.  Chadwell,  8  Humph.  145;  Beller  v. 
.Tone.s,  22  Ark.  92.  And  see  further, 
Henry  v.  Fine,  23  .\rk.  417  ;  Menkens  v. 
J.ightner,  ^8  111.  282  ;  Taylor  y.  Dudley, 
5  Dana  (Ky.),  308;  Uond  v.  Houd,  7 
Allen,  1. 

»  McFadden  v.  Vincent,  21  Tex.  47  ; 
Hale  V.  Brown,  11  Ala.  87;  James  y. 
Langdon,  7  B.  Mon.  193 ;  Wilson  v. 
Oldham,  12  lb.  hn. 

*  Johnson  v.  Chadwell,  8  Humph.  145; 
Beller  r.  Joties,  22  Ark.  92. 

6  Hovey  v.  Hobson,  55  Me.  250;  Miller 
V.  Craig,  36  111.  109;  Speers  r.  Sewell,  4 
Busli  (Ky.),  239;  Hovey  v,  Cliase,  62  Me. 
304  ;  Dennett  i'.  Dennett,  44  N.  H.  531; 
Odell  i>.  Buck,  21  Wend.  142;  Osterhoiit 
V.  Shoemaker,  3  Den.  37  ;  Davis  v.  Cul- 
ver, 13  How.  Pr.  R.  62;  Rippy  v.  Gaunt, 
4  Ired.  Eq.  443.  But  see  Samuel  v.  Mar- 
shall, 3  Leigh,  567;  Smith  v.  Elliott,  1 
Patt.  &  H.  (Va.)  307. 


8  Harding  v.  Handy,  11  Whotit.  103; 
AUore  v.  Jewell,  94  U.  S.  506;  Coiiliy  v. 
Nailor,  118  U.  S.  127. 

'  L-eckenridge  v,  Orinsby,  1  J.  J. 
Marsh.  236;  Somers  v.  Punipliivv,  24 
Ind.  231;  Gates  v.  Woodson,  2  l):in:i, 
452;  Allis  v.  Billings,  6  .Met.'.  41,i; 
Hovey  v.  Hobson,  53  Me.  451  ;  AinuM  i'. 
Richmond  Iron  Works,  1  Gray,  4:U. 

*  Baxter  v.  Earl  of  Port.-jrufMuh,  7 
D.  &  \{.  614;  5  B.  &  C.  170;  Strlmim 
V.  Hart,  1  Kay,  607  ;  23  L.  J.  Cli.  I-hS; 
Manby  v.  Scott,  1  Sid.  112  ;  Wentrt-ortli 
V.  Tub!),  1  Y.  &  C.  171  ;  Mnwanl  r. 
Lord  Digby,  2  CI.  &  F.  6:? !  ,  Bi^'li- 
ardson  v.  Strong,  13  Ired.  Lnw,  W ; 
Ex  parte  Nottiiigton,  1  A'  .  Scl.  Ois 
400;  Pearl  v.  McDowell,  a  J.  J.  Ma.-. 
658;  Skiilmoret).  Romaine,  2  liiadf.  122. 
See  Fitzgerahl  v.  Reed,  17  Mi^^.  !'4; 
Crowther  v.  Powlnndson,  27  Cal.  3"*i; 
Maddox  v.  Simmens,  31  Ga.  .'ii'.  In 
the  case  of  Williams  v.  'V,  Dtwoith,  5 
Beav.  325,  it  was  claimed,  with  rcl'iniic'e 
to  costs  incurred  on  a  commission  ot  lu- 
nacy, and  which  were  held  to  liavi'  Iwn 
properly  incurred  for  the  benefit  of  tlw' 


PART   II.] 


MENTAL   DISABILITIES. 


143 


So  an  insane  husband  is  liable  for  necessaries  supplied  to  his 
wife  during  the  period  of  his  lunacy.^  This  is  put  on  the  ground 
that  as  a  woman  has  the  power  to  bind  her  husband  for  necessa- 
ries Avliich  she  is  compelled  by  his  misconduct  to  procure,  if  the 
husband  becomes  lunatic  by  the  visitation  of  God,  and  therefore 
uuable  to  i)rovide  his  wife  with  necessaries,  he  becomes  as  liable 
to  pay  foi  tiieni  as  though  his  failure  to  provide  them  was  the  re- 
sult of  hill  own  fault  or  misconduct.^ 

lu  a  case  where  the  plaintiff  was  a  ti'adesman,  and  the  defendant 
had  given  his  wife  authority  to  deal  with  the  plaintiff,  and  had 
held  her  out  as  his  agent  and  as  entitled  to  pledge  his  credit,  the 
defeiulant  subsequently  became  insane,  and  wiiile  his  malady 
lasted,  his  wife  ordered  goods  from  the  plaintiff,  who  accordingly 
supplied  them.  At  the  time  of  supplying  the  goods,  the  plaintiff 
was  uuaware  that  the  defendant  had  become  insane.  The  defend- 
ant, ou  recovering  his  reason,  having  refused  to  pay  for  the  goods, 
it  was  held  that  he  was  liable  for  the  price  of  them.^ 


■  iH-U 


lunatic,  ioul  were  necessary  for  tlie  pro- 
tection ot'  Ms  person  and  estate,  that 
however  beneruiiil  to  the  lunatic  the  ex- 
lieiu'iiture  ini^lit  have  been,  yet,  as  the 
liiiiiitic  was  incaiiable  of  contracting,  no 
debt  could  be  constituted  ;  but  the  court 
held  tliat,  in  the  case  of  money  expended 
for  tlie  necessary  protection  of  the  person 
and  estate  of  the  lunatic,  the  law  would 
raise  an  implied  contract,  and  give  a  valid 
demand  or  debt  afjainst  the  lunatic  or  his 
estate  ;  tliat  under  such  circumstances  a 
debt  was  constituted,  and  payuient  of  it 
ini^'ht  be  obtirined  out  of  the  lunatic's  real 
estate  if  the  pei'sonal  estate  were  insulli- 
cient.  Lord  iiangd.de,  in  delivering  the 
jiidi,'n'ent,  said:  "Any  other  conc!usi'.:i 
would,  as  it  appear,  to  me,  be  ext.-eniely 
dangerous,  as  well  as  contrary  to  the  prin- 
eiplcs  upon  wliich  several  cases  have  been 
decidi'd.  Tliat  which  is  necessary  for  the 
protei'tion  of  the  person  and  estate  of  the 
lunatic  may  well  be  subject  to  question 
and  consideration  ;  but  wlien  a  denianil  is 
niadi-  in  respect  of  a  necessary  of  that 
kind,  1  do  not  see  how  it  is  to  be  dis- 
tinguished, in  principle,  from  a  demand 
arising  in  respect  of  the  supply  of  food 
ami  clothing.  A  debt  is  co'istituted  by 
riason  of  a  contract,  which,  in  such  eases, 
the  law  will  su]iply,  and  it  rests,  as  I  con- 
ceive, upon  a  far' better  foundation  than 
the  rule  wliii'h  has  sometimes  been  referreil 
to,  —  that  a  man  shall  not  be  allowed  to 
stultify  himself."  Williams  v.  Went- 
worth,  .■;  Beiiv.  325.  This  furnishes  an 
answer  to  the  position  sometimes  taken 
(see  1  Pars,  un  Con.  435,  noted),  which 
we  think  entireiv  unsound,  applicable  as 


it  would  also  be  to  the  undoubtedly  legal 
"contracts"  of  a  lunatic  for  necessarie.s, 
that,  in  such  cases,  "there  never  was  a 
contract  between  the  parties,"  because  the 
"  jierson  in  a  state  of  intoxication  "  [or 
the  lunatic]  "has  no  agreeing  mind." 
This  i.y  one  of  the  cases  where  the  law  im- 
plies a  contract,  as  an  agency  is  implied  in 
the  cases  considered  jwtif,  I'arts  III.  and 
IV.,  of  a  married  woman  and  a  ship-master 
being  agents  of  necessity,  from  tlie  very 
necessity  of  the  case.  See  Light  r.  Light, 
25  Heav.  248,  where  a  suit  was  allowed  to 
be  brought  by  a  jicrson  of  weak  mind  by 
his  next  friend.  And  see  further,  Hrown 
V.  Joddrell,  3  C.  &  r.  30  ;  Dane  r.  Lady 
Kirkwall,  t^  C.  &  1'.  679  ;  The  .''larl  of 
Bath  ?'.  The  Earl  of  Bradford,  2  Ves.  Sen. 
587  ;  Wentworth  v.  Tubb,  1  Y.  &  V.  171; 
Is'elson  /'.  I)unc(inii;e,  9  Beav.  211. 

J  LVed  V.  Legard,  6  Kx.  637  ;  20  L.  J. 
Ex.  309 

2  See,  also,  Alexander  v.  Miller,  4  Har- 
ris, 213.  Aithougii  one  who  has  been  a 
lunatic  may,  either  by  special  plea  or  tm- 
der  the  general  issue,  avoid  his  express 
contracts,  yet  upon  contracts  implied  in 
law,  a.'  for  necessaries  for  his  wife,  his 
liabiliti'M  continue.  Pearl  ».  McDowell, 
3. J.J.  Marsh.  C58. 

8  Drew  V.  Nunn,  4  Q.  B.  Div.  661. 
In  III  re  Wood,  1  De  G.  J.  &  S.  465, 
proof  was  allowed  in  equity  against  the 
estate  of  a  testator  for  money  advanced  to 
his  wife  during  his  lunacy,  and  a))plied 
by  l.er  in  jiayment  of  her  nec<!s.sary  ex- 
penses, though  she  had  a  separate  in- 
come. 


'  t- 


n 


i 


'    1 


il  > 


'  r*i  '5 


144 


COMMENTARIES   ON  SALES. 


[book  II. 


But  where  in  an  action  for  the  price  of  necessary  repairs  done 
to  the  defendant's  house,  it  appeared  that  he  was  a  lunatic,  and 
that  the  work  was  done  by  order  of  his  wife,  with  knowledge  on 
the  part  of  the  plaintiff  of  the  husband's  lunacy,  the  wife  having 
always  received  a  suthcient  allowance  from  her  husband's  estate, 
it  was  held  that  the  husband  was  not  liable,  as  under  the  circiim. 
stances  the  wife  had  no  more  authority  to  pledge  his  credit  than 
she  would  have  had  if  he  had  been  sane,  and  had  provided  her 
with  means  for  all  necessaries.^ 

Acts  done  by  a  lunatic  during  lucid  intervals  arc  valid,  but, 
general  lunacy  being  established,  the  proof  is  thrown  upon  the 
party  alleging  a  lucid  interval,  and  he  must  establish,  beyond  a 
mere  cessation  of  violent  symptoms,  a  restoration  of  mind  suffi- 
cient to  enable  the  party  soundly  to  judge  of  the  act.^ 

Du  Bois,   L.    11. 
Q 


1  Richardson   i". 
B.  51. 

2  Hall  V.  Warren,  9  Vcs.  605,  610  ; 
Attoniey-Oeneral  v.  Parnthcr,  3  Bro.  C.  C. 
411;  H.issard  i'.  Smith,  6  Ir.  1!.  E'l.  429. 
It' .1  man  has  been  insane  and  afterwards 
recovers  his  reason,  it  is  not  sudicient,  in 
order  to  impeach  an  act  done  by  him  after 
liis  recovery,  to  show  that  he  was  not  as 
sound  a  man  in  Ids  judgments  as  before 
liis  insanity.  All  that  tiie  law  rennires  is 
that  a  man  should  have  possession  of  his 
reason  so  as  to  know  the  elVect  of  the  act 
he  is  abouc  to  ]ierform,  and  to  bo  cafial)lo 
of  eairying  that  act  into  effect.  Creagh 
V.  Blood,  2  J.  &  L.  509  ;  8  Ir.  11.  Ei[. 
434.  See,  also,  Jie  3.  B.,  1  Myl.  &  C. 
538,  as  to  distinction  between  lunacy  with 
lucid  intervals,  and  a  state  of  sound  mind 
subject  to  occasional  unsoundness,  arising 
from  accidental  and  temporary  causes  ;  and 
Harrod  v.  Harrod,  1  Kay  &  J.  4  ;  18  Jur. 
853,  as  to  distinction  between  unsound- 
ness of  mind  and  mere  dulness  of  intel- 
lect. See,  further,  as  to  insane  delusions, 
Creagh  r.  Blood,  supra  ;  Be  Dyce  Som- 
bre, 1  Maen.  &  G.  116  ;  13  Jur.  857 ; 
Ditchburn  v.  Fearn,  6  Jur.  201;  Banna- 
tyno  V.  Hannatyne,  2  Uob.  Ec.  11.  472  ; 
16  Jur.  8ti4.  The  mere  existence  of  a 
delusion  in  the  mind  of  a  person  making 
a  disposition  or  contract  is  not  sudicient 
to  avoid  it,  even  though  the  delusion  is 
connected  with  the  subject-matter  of  such 
disposition  or  coTitract.  It  is  a  (pU'stion 
for  the  jury  whether  the  delusion  alfected 
the  disposition  or  contract.  Jenkins  v, 
Morris,  L.  K.  14  Ch.  1).  674.  See,  also, 
Waring  v.  Waring,  6  Moo.  P.  G.  341; 
Smith  I'.  Tebbitts,  L.  R.  1  P.  &  1).  398  ; 
Banks  v.  Goodfellow,  L.  R.  5  Q.  15.  549  ; 
Kougliton  V.  Knight,  L.  R.  3  P.  &  D.  64  ; 
Smee  v.  Smee,  49  L.  J.  P.  &  M.  8. 
Weakness  of  mind  and  forgetfulness  are 
not  iufficient  to  iuvalidate  a  '.viH  or  con- 


tract, if  it  is  proved  that  the  mind  of  the 
testator  or  contractor  was,  when  ciilkil 
to  exertion,  capable  of  attention  aiui  ap- 
plication. Tufin^l  .  i;.  I'.stahL',  3  Knupp, 
122;  Osmoi.u   •;    F'  1  P.  Wms.  130. 

In  Smith  f.  I'  )'.i  i  , ,.  R.  1  P.  &  D, 
398,  it  was  he.,i  tlKil  a  diseased  stiitt- of 
mind  once  proved  to  haveestablislu'd  itself 
will  be  presumed  to  continue,  and  the 
burthen  of  showing  that  health  lias  been 
restored  falls  upon  tho.se  who  assert  it.  In 
The  Attorney-General  v.  Parnther,  3  Bro, 
C.  C.  442,  Lord  Thurlow  said  :  "  If  de- 
rangement  be  alleged,  it  is  clearly  incum- 
bent on  the  party  alleging  it  to  prove  such 
derangement.  If  such  derangiMnciit  be 
jiroved,  or  be  admitted  to  have  existoil  at 
any  particular  period,  but  if  a  hu'id  in- 
terval be  alleged  to  have  prevailed  at  tiie 
j)eriod  particidarly  referred  to,  tiieii  tlie 
Durthen  of  i)roof  attaches  to  the  nartv  al- 

I  '.vLen 


irthen  of  proof  attaches  to  tin 
leging  such  lucid  interval,  »vlio  inn- 
sanity  and  competence!  at  the  jieri. 
the  act  was  done,  and  to  which  ('  ■  li  '  M 
inter' al  refers;  and  it  certa'  • ,  Ij  >f 
equal  importance  that  the  :•  i.i  "i" 
support  of  the  allegation  of  li!  'lu  " 
val,  after  derangement  at  an_,  )r. .  '  I 
been  established,  should  be  a.*  str.'i  I'.l 
us  demonstrative  of  such  fact  as  wliei  if 
object  of  the  proof  is  to  establish  (iitniin^- 
nient."  Although  this,  not  stated  with 
exact  fairni'ss,  is  disapproved  bv  hord 
Eldon,  in  Ex  part,'  Holland,  11  Ves  10, 
it  was  apjiroved  and  followed  in  Prinsep 
V.  Dyce  Sombre,  10  Mno.  P.  C.  2:!2, 
where  it  was  hehl  that  the  presuiiiiilinn  of 
law  is,  that  the  verdict  of  a  jury  '.iiiiliT  a 
commission  of  lunacy  that  tl;e  piity,  tin' 
subject  of  the  commission  ■  of  unsoiiiid 
mind,  is  well  founded,  an  *  i''  mp  lonniii.s- 
sion  remained  unsuperseded,  'i.^*  t!  ■  piniy 
continued  to  be  a  lunatic  dn:  i-  .r-t  life- 
Such  presumption,  howev'er,  n;  ly  be  re- 
batted  and  displaced  by  positive  proof  of 


PART  II.] 


MENTAL  DISABILITIES. 


145 


2.  Idiocy.  The  law  relating  to  idiots  and  lunatics  is  very 
much  the  same.  An  idiot  is  defined  hy  Lord  Coke  as  one  non 
compos  from  liis  nativity.^  Bacon  adds  to  Coke's  definition,  that 
he  is  •'  Olio  wlio  never  has  any  lucid  intervals."  ^ 

tiitiiL'  ivtuvi'iy,  or  j-.,ssession  of  a  lucid 
jiiti'ival,  wlii'U  ill!  act  was  performed. 
'[W  iiiKi^  I'l'iibiiiidi,  tliouf^h,  lies  upon  tlio 
liiiiiiiiii,'  under  such  act,  done  dur- 


puity 


the 


of 
of 


iMj;  iiie  subsistence!  ot  a  coniniussiou 
liimicy,  to  estiililish  the  allirniatiou 
(■i)tn|iiet('  iir  ]i;irliid  recovery  of  the  lunatic 
at  till'  time  of  the  [lerlorniance  of  the  act. 
And  it  liiis  been  held  that  if  the  nund  is 
uii.-ouiiil  on  one  subject,  provided  that 
uiisDiiiiiliiess  is  at  all  times  existing  upon 
tliiit  subject,  it  is  erroneous  to  sujiposo 
such  a  iiiind  is  really  sound  on  other  sub- 
jects. It  is  oidy  sound  in  appearance,  for 
if  tlie  subj(!ct  of  the  delusion  be  presented 
to  it  the  unsoundness  would  bo  manifested 
liy  such  a  iierson  believing  in  the  sugges- 
tii)iis  of  fiiu'y,  as  if  they  were  realities. 
Any  act,  therefore,  done  by  such  a  i)erson, 
howuver  rational  that  act  may  appear  to 
be,  is  oi"ii  to  attack  as  the  act  of  a  mor- 
lm(i  unsound  mind.  And  to  constitute  a 
lucid  iiitirvul  in  such  case,  the  party  must 
fiveiy  and  voluntarily,  and  without  any 
di'sif,'n  at  the  time  of  pretending  sanity 
auil  freedom  from  delusion,  confess  ids 
dehisinu.  Waring  r.  Waring,  6  Moo. 
1'.  C.  341.  See  Ellavs  u.  Mossbenger,  9 
111.  App.  122.  As  in  tlie  case  of  infancy, 
the  deletiee  of  disability  to  contract  can- 
not be  raised  by  the  other  party  to  the 
contract.  Tims,  in  Alien  v.  Berryhill, 
'27  Iowa,  nnt,  it  was  held  that  where  a 
|H'rsuii  of  uiisdund  mind  makes  a  contract 
which  is  beneficial  to  him,  the  law  sujt- 
[ijifs  or  presumes  the  existence  of  the 
r«|iiisite  capacity,  or,  for  his  prottotion, 
esto|is  the  otlier  party  from  setting  up  and 
sustaiiiin;;  the  insanity. 

1  Co.  Litt.  247  ;  4  Co.  R.  124.  See 
1  Hales  Hist.  P.  0.  30  to  37. 

■^  IJaciiii  Ab.  tit.  Idiots  and  Lunatics, 
A.  1,  3.  ISaeoii  heresays;  "Though  this 
siilijcct  rf  madness  may  be  si)un  out  to 
fjri'iUcr  hiigtli,  and  branched  into  several 
liiiuls  and  ilegrces,  yet  it  appears  that  the 
liii'vailiiig  ilistinetion  herein,  in  law,  is 
("'tween  i(iiocy  and  ainaey  ;  the  lirst,  a 
taliiitv  'I  nii/iviliitf,  vel  dftiicntiii  natural  is, 
wiiicii  ex(  uscth  the  party  as  to  his  acts, 
iiiidiiitilles  the  king  to  the  receipt  of  the 
iviits  and  pi  ilits  of  Ids  est.ate  dtiring  his 
htc,  witiioiit  I'liiig  obliged  to  render  any 
ai'Cdiiiit  lor  the  sai:io  :  the  other,  accidental 
iir  adventitious  niailness,  which,  whether 
Iii'iinaiuiit  and  fixed,  or  with  lucid  inter- 
vals, ffcH's  under  the  name  of  lunacy,  and 
•''inally  cxcusetli  with  idiocy,  as  to  acta 
done  loiiiig  the  idirensy.  '4  Co.  125  a. 
But  hci,  .11  they  differ,  that  in  the  latter 

VOL.   I.  10 


case  the  king,  as  hath  been  .said,  is  only  a 
trustee  for  the  lunatic,  and  accountable  to 
him,  if  he  happens  to  be  restored  to  his 
understanding,  or  to  his  representatives, 
if  it  happens  otherwise."  The  most  ma- 
terial dill'erence  is  that  as  an  idiot  has  no 
lucid  interval,  therefore  the  law  a|)|diuable 
to  lucid  intervals  of  lunatics  is  inappli- 
cable to  idiots.  The  word  "idiot"  is  a 
technical  one  well  known  in  our  ancient 
law,  and  confined  to  the  precise  ca.se  of  a 
jiersou  "/(»^«MS  n  nativitatc."  The  wonls 
of  the  statute  17  Kd.  2,  c.  9,  are  "  AVx 
hahcbit  custndiain  tirrarum  fiituorum 
natural iiim,"  whereby,  says  Cowell's  In- 
terpreter, it  ajipears,  an  idiot  must  bo 
"J'atuus  a  nativitatc.  For  if  he  was  ever 
wise,  or  became  a  fool  by  chance,  etc.,  the 
king  shall  not  have  the  custody  of  him." 
Tiiere  are,  however,  some  Ibrms  of  writs 
directing  in(|uiries,  "«;(.  iiti<da  et  J'atuus 
naliv  tale  a'titit."  In  Lord  Donegal's 
Case,  2  Ves.  Sen.  407,  Lord  Ilardwieke  said 
an  i(liot  was  such  as  was  so  ex  nativitatc 
(1  Will.  702)  ,  md,  therefore,  the  court  at 
common  law  held  that,  finding  a  man 
idiot  for  so  many  years  jiast  was  good  ;  for 
finding  him  idiot  was  including  that  he 
was  such  from  his  nativity,  ami  the  rest 
was  mere  surplusage.  But  there  has  been 
an  alteration  since  Lord  Ilardwicke's  time, 
and  commissions  in  the  nature  of  those  of 
lunacy  are  now  ap]died  to  cases  where 
there  is  such  an  imljecility  of  mind  as 
renders  a  ]i(!i'son  incompetent  in  the  nnin- 
agement  of  his  nflair.s,  or  lialde  to  be  im- 
posed on.  See  Hidgway  v.  Darwin,  8 
Ves.  6.5,  66  ;  Kc  parte  CrannRr,  12  Vcs. 
445,  447  ;  Kyre  v.  Wake,  4  Ves.  71»8, 
note  ;  Gibson  v.  Jeyes,  6  Ves.  266,  273. 
Sec,  for  further  ca.ses  relating  to  idiocy,  — 
In  the  matter  of  Harker,  2  .lolins.  ("h. 
23.')  ;  Trodgers  v.  Frazier,  3  Mod.  43  ;  2 
Cb.  ("as.  70  ;  Saunderson  i'.  Saundeison, 
19  Ves.  286;  liird  r.  Lefevre,  4  I5r.  100; 
A'r  iiartr,  Toiiilinsiui,  1  Ves.  &  B.  [)8  ; 
Ex  jKirte  Atkinson,  Jacoli's  11.  23.')  ;  Hume 
r.  The  Karl  Klv,  7  Br.  V.  V.  31!»  :  liocli- 
fort  V.  Iliiine,  6  I5r.  1'.  C.  32'.l  ;  Co.  Lit. 
246  b;  Heverley's  Case,  4  Co.  123:  /,'x 
)>arte  Barnsley,  3  Atk.  168  ;  Wendell's 
Case,  1  Jolin.s.  Ch.  600  ;  ISiasher's  Kx'a 
V.  Cortlandt,  2  Johns.  Ch.  233. 

Formerly,  one  born  deaf  and  dumb  was 
considered,  in  presumption  of  law,  an 
idiot.  1  Hale  V.  C.  34.  But  where, 
from  education,  they  manifest  fair  under- 
standing, as  under  instruction  in  deaf  and 
dumb  institutions  they  now  do,  there  is  no 
longer  such  presumption,  and  they  are  ordi- 


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146 


COMMENTARIES   ON  SALES. 


[book 


3.  Drunkenness.  Coke  classifies  drunkards  with  lunatics  and 
idiots,  as  those  who  are  tion  compos.  His  fourth  class  is  :  "  Oue 
that  is  drunk;  which  last  is  so  far  from  coming  within  the  pro- 
tection of  the  law,  that  his  drunkenness  is  an  aggravation  of  wiiat- 
ever  he  does  amiss."  *  Coke's  remark  is  generally  true  as  to  tln' 
criminal  acts  of  a  drunkard,  but  where  a  party,  when  he  enters 
into  a  contract,  is  in  such  a  state  of  drunkenness  as  not  to  know 
what  he  is  doing,  and  particularly  when  it  appears  that  this  was 
known  to  the  otiier  party,  the  drunken  man  cannot  be  conipelkd 
to  perform  tlie  contract.'-^  A  person  who  takes  an  obligation  from 
another  under  such  circumstances  is  guiltv  of  actual  fraud.  The 
modern  decisions  have  qualified  the  old  doctrine,  that  a  nmn  shall 
not  be  allowed  to  allege  his  own  lunacy  or  intoxication;^  and 
total  drunkenness  is  now  held  to  be  a  defence.* 


■larily  as  iespoiisililc  for  their  acts,  ami  as 
'lie  to  make  biiidinj;  contracts  in  <;ood 
(iiitli  as  tlio.se  who  have  not  been  ■■iurdus  ft 
mutus  a  loitiviliitc.  For  eases  liearing  on 
this  question,  see  Steel's  Case,  1  Leauh, 
4;'>1  ;  .loues'  Case,  1  Leach,  1U2  ;  Kex  v. 
rritchanl,  7  C  &  V\  303  ;  Hex  y.  Dyson, 
7  C.  i  P.  30'!,  note  (<;);  Thompson's  Case, 
2  Lewin  C.  C.  137  ;  Snvder  v.  Nations, 
5  Blaekt'.  2;>5  ;  The  People  v.  McUee,  1 
Denio,  li)  ;  Commonwealth  v.  Hill,  14 
Mass.  •2(17  ;  The  State  u.  DeWolf,  8  Conn. 
i)3 ;  Cliristinas  v.  Mitchell,  3  Iivd.  Kq. 
535;  Dickenson  v.  Hlissott,  1  Dick.  2i>S. 
In  .Snyilerw.  Nations,  5  Blaekt'.  (Iml.)  2it5, 
it  was  held  that  a  witness  tieiiij^  deaf  and 
duini)  forms  no  objection  to  his  admissiliili- 
ty ;  but  that  such  a  person,  who  can  be  ooni- 
municated  with  by  sij,'ns,  is  a  competent 
witness  at  coininon  law,  if  he  has  sullicient 
discretion  and  a  proper  sense  of  the  sanc- 
tity of  an  oath.  A  fortiori,  where  a  deaf 
and  dumb  person  can  be  coinmunicated 
with  by  means  of  writing,  as  usually  now 
can  be  done,  the  old  presiunption  against 
liis  ability  to  contract,  or  his  liability  for 
his  acts,  is  virtually  of  no  force.  See 
John  lUiston's  t'ase,  1  Leach,  455. 

The  act  of  an  iiliot  before  iiiijuest 
found  is  voidable  oidy,  like  the  e<inti'ai't  of 
an  infant  or  insane  pci'son.  IJurnham 
V.  Kidwcll,  113  111.  4-25;  AUis  w.  Billings, 
(J  Mi-tc.  415;  (Jilison  v.  Loper,  (i  Grav, 
27!<;  Hovcv  r.  llobson,  53  Me.  455;  Chew 
V.  Bank  .if' Baltimore,  14  Md.  308;  Scan- 
Ian  V.  Cobb,  85  111.  2!»«.  And  the  eon- 
tract  ot  the  infant  cannot  be  rescinded,  and 
he  recover  buck  the  property  he  lias  jiarted 
with,  and  still  retain  the  consideration  for 
the  jirop  itv  sold.  Ilurnham  v.  Kidwell, 
113  111.  4'i5  :  Scanlan  v.  Cobb,  85  111. 
296 ;  Katon  i\  Katon,  37  N.  J.  L.  103  ; 
Lincoln  v.  Buckmaster,  3'2  Vt.  659  ;  Carr 
V.  Halliday,  5  Ired.  E([.  67.  In  Mouse  v. 
House,  6  lud.  60,  where  an  adult  idiot 


.son  was  living  with  his  father  as  a  num- 
ber of  the  family,  and  was  supiiortnl  U 
him,  and  subseouently  they  were  both  re 
ceived  to  board  with  the  phiiiitill',  tk 
father  having  said  that  he  would  piy  for 
the  sujiport  of  his  idiot  son  ;  it  was  luld 
that  the  jury  wen;  right  in  liiuliiig  tint  a 
contract  for  the  father  to  pay  I'or  tlu'  sup- 
port of  the  idiot  son  might  be  inlcri vil  trmii 
the  circumstances.  For  further  casus  n- 
lating  to  idiocy,  see  Lang  v.  Whi'Mcii.  i 
N.  H.  435;  Treat  v.  Peck,  5  Vmiu.  iMi; 
Teal  V.  Wood  worth,  3  Paig<',  470  ;  Faulk- 
ner I'.  Mcrlure,  18  Johns.  134;  Li  '■ 
.Mason,  1  Barb.  436;  Brown  v.  Cliasc,  1 
Mass.  436;  Web.ster  v.  Woodwani,  3  Ihiy. 
ftO  •  Uice  V.  Peat,  15  Johns.  5^i:!  ;  V^Uvs 
V.  Baen,  2  Str.  1104  ;  /;(  re  Vanankiii, 
10  X.  J.  Ell.  186. 

1  Co.  Litt.  247  ;  4  Co.  124.  uwm- cri- 
men chrictas  inccndit  ct  dcffijii.  V\  "\.  19- 

^  There  is  a  material  distinction  be- 
tween what  a  drunkard  docs  against  in- 
other  ill  invitiim,  and  what  a  party  Joes 
with  respect  to  him  by  way  of  contract, 
knowing  him  to  be  drunk.  /'  ,•  ,\Mcr-ffli, 
B.,  in  Core  c.  Gibson,  13  M.  v<;  W.  •i-'l. 

*  According  to  the  old  antiioiiiifj,  a 
man  was  not  allowed  to  stultify  himself 
by  alleging  his  own  incapacity  to  contrail, 
whether  from  in.sanity  or  diiinkcniie^>, 
which  was  held  a  crime  in  itself,  ami. 
therefore,  as  not  all'ording  any  excuse  Im 
other  crimes,  or  for  avoiding  a  civil  cui- 
tract.  Co.  Litt.  247  n,  >' ,•  Bcvcrlev'' 
Ca.se,  4  Co.  123  b.  All  the  old  aiitlioritu- 
were  to  this  eH'ect.  See  Jeiik.  Cdit.  ■!"; 
Fitz.  N.  B.  202  I)  :  1  Rolle,  2  ;  Br.  T'-iA. 
62  ;  Cr.  Eliz.  398,  622  ;  Johnson  v.  MeJ- 
dlicott,  3  P.  Wms.  130,  note  A. 

•»  r,r  Parke,  B.,  in  Gore  v.  i^H'S'i". 
13  M.  &  W.  62(i  ;  Yates  v.  Bocn,  2  Stni. 
1104;  Cole  (..  Hobins,  Bull.  N.  !'■  1'- 
Cooke  V.  Clayworirli,  18  Vcs.  1:2;  rii"i'ip- 
son  V.  Leech,"  2  Yen.  198  ;  Sniitli  r.  Carr, 


PAKT   II.] 


MENTAL   DISABILITIES. 


147 


A  drunkard,  like  a  lunatic,  is  liable  for  necessaries,^  and  his 
contract  is  voidable  only  and  not  void,  and  is  therefore  capable  of 
ratification  l)y  him  when  he  becomes  sober.^ 


citeil  in  V;it(s  r.  lioeii,  supra;  Molti'ii  v. 
Caiiiiniix,  4  Kx.  iit  !>.  li).  In  Uoiu  i'.  Gib- 
..011,  13  -M.  &  W.  C-Jo,  ToUuck,  C.  15., 
siiitl ;  "  Ahln)ii,i,'li  Ton  lie  ily  it  was  coiisid- 
(■reil  that  a  man  sliuiilil  bu  liablu  uiion  a 
(iiiitiact  iiiadc  by  him  \vhi;n  in  a  stato  of 
intoxiuatiuii,  on  iht;  j,'rounil  that  he  sliouhl 
not  lie  alliiweil  to  stultify  hiniself,  the 
ri'sult  of  tlio  motk'iii  iinthoritii'M  is,  that 
no  coMtiaet  mailu  by  a  jwison  in  that 
state,  when  he  does  not  know  tho  coiise- 
iliU'iices  of  his  aet,  is  bindin,!,'  ujion  liini. 
That  iloi'tiine  a[iiiears  to  me  in  aeeordaneo 
with  reason  and  justice.  With  ref,Mrd, 
however,  to  eoiitraets  which  it  is  soui,'ht 
to  avoid  oil  the  giouiid  of  intoxication, 
there  is  a  ilistinction  between  cj-pirss  and 
implicil  eiiiitraets.  AVheru  the  n;,'ht  of 
.lution  is  grouiiiled  upon  a  s[)eoifi(;  distinct 
lontraet  ivijuiriiii:  the  assent  of  both  par- 
ties, and  OIK-  of  them  is  incapable  of  as- 
seiitiiij,',  in  such  a  case  there  can  be  no 
hiiidinj,' eoiitiaet  ;  but  in  many  cases  the 
law  lUies  not  rei|uire  an  actual  agreement 
hetweeii  the  parties,  but  implies  a  coii- 
tra't  from  the  circumstances.  In  fact, 
the  law  itself  makes  the  contract  for  the 
]«utii's.  Thus,  in  actions  for  money  had 
;md  received  to  the  jilaintitr's  us(>,  or 
iiioney  paid  by  him  to  the  defendant's 
ii>:o,  the  action  may  lie  against  the  de- 
fiiidaiit,  even  though  he  may  liavc  pro- 
ti'steil  against  such  a  contract.  So,  a 
trailosniaM  who  supplies  a  drunken  man 
with  iieii'ssaries  may  recover  the  jirice  of 
thiiii  if  the  party  keeps  them  when  he 
K'cmnes  solier,  ahluuigli  a  count  for  goods 
liaivaiiK-d  and  sold  would  fail.  In  tliis 
t'dsi'  the  d<-feiiilaiit  is  still  lialile  for  the 
oonsiilciati(jii  lor  his  indorsement,  al- 
tlifmi;li  tlie  indorsement  itself  can  give  the 
I'liiimiirno  title."  And,  accordingly,  the 
jili'a  of  the  defendant,  in  ail  action  by 
till' iinlorsee  of  a  bill  of  exchange  against 
!h''  indnr.er,  that  when  he  indorsed  the 
liill  he  was  so  intoxicated,  and  thereby  so 
eiUiiily  deprived  of  sense,  understanding, 
aiul  the  ii>e  of  his  reason,  as  to  be  unable 
to  coinpfeheiiil  the  meaning,  nature,  or 
ttr''i't  of  tlie  indorsement,  or  to  contract 
tlifietiy  ;  of  which  the  jilaintiff,  at  the 
tinii!  of  the  indorsement,  iiad  notice,  was 
InM  a  good  jilea.  (iore  v.  (iibsoii,  13 
M.  &  W .  (i'j:i.  Courts  of  eipiity,  on 
firoiinds  of  pulilic  policy,  do  not  incline, 
oil  the  0111'  hand,  to  lend  their  assistance 
to  a  pefMiii  who  hasiibtainedan  agreement 
'Tilt'iil  from  another  in  a  state  of  intoxi- 
fatioii;  iiiiil,  on  the  other  hand,  they  are 
e'lually  unwilling  to  assist  the  intoxicated 


party  to  get  rid  of  liis  agreement  or  deed, 
merely  on  the  ground  of  his  intoxication 
at  the  time.  Tliey  will  leave  the  parties 
to  their  ordinary  remedies  at  law,  unless 
there  is  some  fraudulent  contrivance  or 
imposition  practiseci.  Caniplit  11  v.  Ketch- 
am,  1  Bibb,  4U0  ;  Wiiite  v.  Cox,  3  Jlayw. 
82  ;  \Viggles\vorth  v.  Steers,  1  lien,  k  M. 
70  ;  Taylor  v.  Patrick,  1  ISibli,  Kis.  See, 
also,  us  to  tlie  etl'ect  of  intoxication  on 
contracts,  Barrett  v.  Baxton,  2  Aiken, 
1(57;  King  v.  Bryant,  2  Ilayw.  (N.  C.) 
394;  IJornaighs  y.  liiciiman,  1  (Jieeii,  243; 
Keiuicker  v.  Smith,  2  Il.ir.  &:  J.  423; 
Arnold  v,  Hickman,  C  Muiif.  \i>  ;  AVil- 
liams  V.  Inabuot,  1  Bailey,  343  ;  Seymour 
V.  Delancy,  3  Cow.  445  ;  Dorr  v.  Munstdl, 

13  Johns.  430  ;  Butler  v.  Mulvihill,  1 
Bligh,  137  :  Cole  v.  Hobin.s,  Bull.  N.  1*. 
172  ;  I'itt  r.  Smith,  3  Campb.  34  ; 
Stockley  v.  Stockley,  1  Ves.  k  Bea.  31  ; 
Itich  V.  Sydenham,  1  Ch.  Cas.  2(»2  ;  Say 
t'.  I5arwick,  1  Ves.  &  I5ca.  l'.»'J;  Dunnage  v. 
White,  1  Swanst.  I,"i0  ;  Alountain  v.  Ben- 
nett, 1  Cox,  3.')3  ;  Faille  v.  Brown,  cited 
in  2  Ves.  Sen.  307.  But  a  contract  ob- 
tained by  fraud  and  circumvention  from  a 
person  in  a  state  of  intoxication  is  void 
in  e(|uitv.  Buth'r  v.  Mulvihill,  1  liligh, 
m  ;  Rich  V.  Svdenham,  1  Ch.  Cas.  2ii2  ; 
Say  V.  Barwiek^  1  Ves.  &  r,ea.  Hi!»  ;  Dun- 
nage V.  White,  1  Swanst.  ITiO;  Mountain 
V.  Beiinet,  1  Cox,  3.")o  ;  Faine  v.  Brown, 
cited  in  2  Ves.  Sen.  i5o7  ;  Anonymous 
Case,  cited  in  8  Ves.  (57  ;  L'owlv  v.  Nai- 
lor,  118  U.  S.  127-  And  where  there  is 
any  unfair  advantage  niaile  of  his  situa- 
tion, or  any  contrivance  or  management 
to  draw  him  into  drink,  he  is  a  proper  ob- 
ject of  relief  in  a  court  of  ei|uity.  I'ooke 
V.  Clavworth,  18  Ves.  15;  Cory  v.  Cory, 
1  Ves".  lit;  Jdlmson  v.  Medlicott,  3  P. 
Wins.  130,  note  n.  But  a  jiarty  cannot, 
in  general,  resist  s])ecilic  ]iei  rormaneo 
merely  upon  the  ground  of  his  intoxication 
at  tiie  time  of  making  the  contract,  tho 
other  partj'  not  liaving  been  aware  of  liis 
condition.  Lightfoot  v.  Hi'ion,  .'5  Y.  &  C. 
.ISi!  :  Shaw  r.  Thackiay,  1  Sin.  &  (I.  .537. 
But  a  contiaet,  unreasonable  in  itself,  en- 
tered into  by  an  habitual  drunkard  when 
in  a  state  of  exciteineiit  from  excessive 
drinking  almost  amounting  to  madness 
with  a  person  who,  at  the  time,  had  liiii 
in  complete  subjection,  will  be  set  aside 
It  is  not  necessary  in  such  a  case  to  ]irove 
actual  madness.     Wiltsiiire  v.    Marshall 

14  W.  K.  602  ;  14  L.  T.  \.  s.  39t5. 

J  <!ore   V.    Oibson,    13  M.  &  W,   (523. 
2  Matthews  V.  Baxter,  8  L.  li.  Ex.  132  ; 


it 


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148 


COMMENTARIES  ON  SALES. 


[book  II. 


Molton  V.  Cainroux,  2  Ex.  487;  Wiggles- 
worth  V.  Steers,  1  Hen.  &  M.  70. 

See,  further,  as  to  a  drunkard's  con- 
tracts, Darby  1'.  Cabaune,  1  Mo.  App.  126; 
Menkius  v.  Lightiier,  18  111.  282  ;  Wig- 
glesworth  v.  Steers,  1  lien.  &  M.  70;  Hall 
V.  Warren,  9  Ves.  608 ;  Niell  v.  Morley, 
!)  Ves.  478  ;  Say  v.  Barwick,  1  Ves.  &  B. 
199;  MeCrillis  v.  Bartlett,  8  N.  H.  569; 
Coombs  V.  Janvier,  31  N.  J.  L.  240 ; 
Clarke  v.  Dunham,  4  Don.  262  ;  Wads- 
worth  V.  Sherman,  14  Barb.  169  ;  L'Araor- 
eux  V.  Crosby,  2  Paige,  427;  Griswold  v. 
Miller,  15  Barb.  520  ;  Tozer  v.  Saturlee, 
3  Grant  (Pa.),  162  ;  In  re  Heller,  3  Paige, 
199  ;  Copenrath  v.  Kienby,  83  Ind.  18  ; 
Motley  V.  Head,  43  Vt.  633;  In  r«Tracey, 
1  Paige,  580;  Underhill  v.  Jackson,  1 
Barb.  Ch.  73;  Ridgway  v.  Darwin,  8  Ves. 
65.  In  Jenners  v.  Havard,  6  Blackf.  240, 
the  court  held  that  mental  incapacity 
at  the  time  of  contracting,  produced  by 
drunkenness  or  any  other  cause,  is  a  good 
defence  against  a  contract,  whether  that 
contract  be  evidenced  by  deed  or  parol. 
Drunkenness  of  itself  merely,  unless  fraud 
be  practised,  will  not  avoid  a  contract ; 


but  if  the  party  be  in  such  a  state  of  in- 
toxication that  he  is  I'or  the  time  deprived 
of  reason,  it  will  do  so.  In  Harbison  v. 
Lemon,  3  Blackf.  51,  where  a  contract 
was  souglit  to  be  set  aside  on  the  ground 
of  intoxication,  the  contract  not  Imvinir 
been  shown  to  bo  unfair,  nor  was  tlii'ie 
any  proof  that  the  intoxication  was  pro- 
duced by  the  contrivance  of  the  otlirr 
party  to  the  contract,  the  court  held,  that 
to  set  the  contract  aside,  in  the  absence  of 
fraud,  it  must  bo  shown  that  the  ilnink- 
enncss  was  so  great  as  to  produce  an  abso- 
lute i)rivation  of  understanding  fur  the 
time,  similar  to  cases  of  idiocy  or  insanity. 
This  doctrine  is  sustained  by  both  Kiij;- 
lish  and  American  authorities.  See  Pitt  r. 
Smith,  3  Camp.  33 ;  Fenton  v.  Hollnway, 
1  Stark.  126;  Baxter  t>.  Ea  of  Ports- 
mouth, 7  D.  &  Ry.  614  ;  Cou^e  v.  Clav- 
worth,  18  Ves.  12  ;  Gore  v.  Gibson,  13 
M.  &  W.  623;  Yates  v.  Boen,  2  Str.  Ilfi4; 
Cole  c.  IJobbins,  Bull.  N.  P.  172  ;  Jlitch- 
ell  V.  Kingman,  5  Pick.  431  ;  Sainiul  v. 
Marshall.  3  Leigh,  567  ;  Barrett  v.  Bux- 
ton, 2  A  :en,  167  ;  Prentice  v.  Achorn,  2 
Paige,  ou. 


h  i 


'If '11 


'    ! 


PART  III.] 


MARRIED  WOMEN. 


149 


BOOK   II. 

PART  III. 

MARRIED  WOMEN. 

1.  General  Principles. 

At  common  law  a  married  woman  is  incapable  of  making  a 
valid  contract  so  as  to  render  herself  liable  thereon,  and  any  at- 
tempted contract  made  with  her,  unlike  those  made  with  infants, 
lunatics,  and  drunkards,  is  absolutely  void ;  ^  and,  therefore,  is  in- 
caitablc  of  being  ratified  by  her  after  her  coverture  has  ceased.'-* 
The  personality  of  the  wife  is  merged  in  that  of  her  husband,'^  and 
so  far  as  her  contracts  at  common  law  are  binding  at  all,  they  are 


binding  on  the  husband.* 


1  "Tlie  contract  is  void,  for  a  feme 
covert  lias  not  jwwerot'  herself  to  make  any 
contract.  And  it  is  not  like  to  the  case  of 
infants,  for  their  contracts  are  to  some 
intents  good,  and  may  be  made  good  by 
them  at  their  age  ;  but  the  contracts  of 
femes  covcrfs  are  absolutely  void,  for  they 
have  not  any  i)ower  of  will,  but  are  subject 
to  tlu'  will  of  their  husbands."  Manby  v. 
Scott,  1  Lev.  at  p.  C. 

•i  Sou  .Marshall  v.  Rutton,  8  T.  R.  545  ; 
Moirir,  V.  Norfolk,  1  Taunt.  212  ;  France 
V.  White,  1  Jl.  &  G.  731  ;  Burch  i'.  Leeke. 
7  M.  &  (t.  377.  AVhen  a  married  wor.ian, 
wlio  is  also  an  infant,  execute-s  an  insvru- 
nicnt  witli  her  husband,  which  is  void  be- 
canse  of  her  infancy,  she  has  a  reasonable 
time  after  the  coverture  has  ceased  to  avoid 
the  act.  Sims  v.  Everhardt,  102  U.  S. 
3U0. 

'  They  are  "one  person  in  the  law." 
Co.  Litt.  112  fit. 

*  In  Carn  v.  Rrice,  10  L.  J.  Ex.  28,  a 
wile's  clothes,  bought  with  her  separate 
income,  were  seized  under  an  execution 
asainst  her  husband.  And  this  rule  still 
prevails  wherever  the  common  law  is  in 
torce,  and  is  not  varied  by  married  women's 
relief  acts.  By  the  common  law  the  per- 
sonal jiropcrty  of  the  wife  is  the  absolute 
liroperty  of  the  husband,  and,  at  his 
tleath,  becomes  assets  in  the  hands  of  his 


personal  representative,  and  if  the  hus- 
band and  wife  sell  and  convey  her  land, 
and  he  receives  the  consideration-money 
without  any  reservation  of  rights  on  h«r 
part,  the  money  belongs  to  him.  Ken.ser 
V.  Trigg,  98  U.  S.  50  ;  Ham  bin  v.  Jones, 
20  Wis.  536. 

It  was  held  in  Illinois,  that,  as  it  is  a 
presumption  alwavs  indulged  in  by  the 
courts  that  the  common  law  prevails  in 
such  of  the  States  of  the  Union  as  are 
formed  from  territory  which  onee  bi^longed 
to  the  colonies  of  England,  unless  it  is 
proven  as  a  fiict  to  the  contrary,  it  will  be 
j>resumed  in  Illinois  that  the  common  law 
prevails  in  Indiana  and  Wisconsin,  as  re- 
gards the  marital  rights  of  the  husband. 
It  was  hence  held  tliat  furniture  bought 
by  the  wife,  out  of  money  given  to  her  by 
her  father  before  her  marriage,  and  earned 
by  her  after  her  marriage,  and  which 
moneys  she  had  with  her  in  Indiana  and 
Wisconsin,  kept  in  her  own  possession, 
control,  and  management,  was  liable,  at 
common  law,  to  be  taken  in  Illinois  under 
an  execution  issued  against  her  husband ; 
such  furniture  not  having  been  brought 
within  the  protection  of  the  Married 
Woman's  Act  of  1874.  Hanehett  v.  Rice, 
22  111.  App.  442.  Accord,  Dubois  v.  .lack- 
son,  49  111.  49 ;  Cummings  v.  Cummings, 
143  Mass.  340;  Farrell  v.  Patterson,  43 


•'H: 


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150 


COMMENTARIES  ON   SALES. 


[book  II, 


2.  Married  Women  Living  with  thkir  Husbands. 


While  a  wife  is  living  with  her  husband,  the  general  rule  is  that 
a  wife  cannot  bind  her  husband  by  her  contract,  except  as  liis 


111.  52;  Tinkler  v.  Cox,  68  ill.  119; 
Siivagu  V.  O'Ncil,  •14  N.  Y.  2'.i8;  Liuhtuu- 
burg(!r  V.  (Jniliaiii,  [A)  I  ml.  288  ;  lifcvcs  v. 
^Webster,  71  111.  307  ;  Walker  v.  IJcaiiiey, 
36  Pa.  St.  416.  So,  in  Hainill  v.  Henry, 
69  lowii,  7r)2,  it  Was  held,  in  nn  action  in 
chancery  to  subject  certain  n.'iil  estate,  the 
title  whereof  was  in  a  wife,  to  a  jii(lf,'ineiit 
against  her  husband,  that  moneys  paid  for 
the  purchase  of  the  property  from  the 
earnings  of  the  wife  (who  was  living  with 
li(!r  husband),  in  keeping  boanlers  in  the 
family,  selling  butter  and  milk  and  the 
like,  belonged  to  tho  husband,  ami  the 
property  to  that  extent  was  subject  to 
the  judgment  against  him.  See  Croup  v. 
Morton,  49  Iowa,  Itj,  to  the  same  ell'ect. 
In  (Jeorgia  (Code,  §§  175()-17t;o),  where  a 
wife  has  been  living  sejiarate  from  her  hus- 
band, or  has  been  declared  "a  jiublic  or 
free  trader,"  under  the  Code,  then,  in 
either  event,  her  ac(|uisition3  become  her 
sei)arate  e.-'ate,  to  which  the  marital  rights 
of  her  hu  au\  do  not  attach.  IJut  when 
she  is  living  with  her  husband,  anil  ha.;  !iot 
been  declared  "  a  public  or  free  trader,"  her 
earnings,  no  matter  in  point  or  princijile  ot 
law  how  claimed,  whether  from  keeping  a 
boarding-house,  or  from  washin",  ironing, 
or  cooking,  vest  in  her  husband,  and  real 
estate  bought  by  him  with  such  earnings 
is  liable  to  his  debts,  and  is  not  alFected  by 
any  trust  in  favor  of  his  wife.  Gorman  v. 
Wood,  73  Ga.  f.70  ;  68  Ga.  524.  And, 
notwithstanding  the  statutes  which  have 
been  passed  giving  to  married  women 
rights  of  property  against  the  husband 
and  his  creditors,  property  purchased  by 
a  woman  on  credit,  or  with  her  earnings, 
has  been  held  to  be  subject  to  the  levy  of 
nn  execution  against  her  husband.  Rob- 
inson V.  Wallace,  3  Wright,  129.  And 
where  the  contest  was  between  a  wife  and 
her  husband's  creditors,  it  was  ruled  that 
mere  evidence  that  she  purchased  the  prop- 
erty during  the;  coverture  was  not  sufKcient 
to  give  her  title  ;  that  it  must  bo  satisfac- 
torily shown  that  the  property  was  jiaid 
for  with  her  own  separate  funds,  and, 
that,  in  the  absence  of  such  evidence,  the 
presumption  is  a  violent  one,  that  the 
husband  furnished  the  means  of  payment ; 
and  it  was  held  that  this  rule  applies  to  the 
purchase  of  both  real  and  personal  estate. 
keeny  v.  Good,  21  Pa.  St.  349  ;  Camber 
V.  Gamber,  18  Pa.  St.  306.  And  to  over- 
come this  presumption  theie  must  be  satis- 
factory evidence  that  the  money  was  her 
own  and  not  that  of  her  husband.     Seitz 


V.  Mitchell,  94  IT.  S.  580;  Walker  v. 
Ueaniey,  36  Pa.  St.  410  ;  I'.irvin  v.  Ciipo. 
well,  9  Wright,  89  ;  Uradi'md's  Ap|iciil,  5 
Casey,  513  ;  Aurand  c.  Sbaetler,  7  \\'ri;,'lit, 
?A')'-i  ;  Switzer  v.  Valentine,  4  Ducr,  iiti; 
Glann  v.  Vounglove,  27  Harl).  4Sii  ;  Wod.l. 
beck  V.  Havens,  42  Marl).  66;  llidcr  v. 
Hulse,  24  X.  V.  372;  Cainors  v.  Cainors, 
4  Wis.  131  ;  Klliott  v.  IJentlev,  17  Wis. 
610;  Edson  v.  Ilayderi,  20  Wis.  .N2; 
Duncan  v.  lluselle,  15  Iowa,  501  ;  Cnii:  it 
V.  Redford,  17  N.  J.  Ivj.  ;5(;7.  In  .Vis. 
souri,  too,  it  has  been  held,  tl::it  tiie 
ilarried  Women's  Acts  are  to  be  siiiiily 
construed,  on  the  ground  that  st.ituti'S 
innovating  upon  well-estal)lishcd  coininon- 
law  principles  are.  to  bci  restricted  to  the 
limits  of  tlie  precise  extent  to  wliiili  tlii' 
language  of  the  statute  goes,  and  to  e.\ti'ii(l 
no  further.  Hence,  on  the  coniiuuii-liiw 
presumption  that  personal  pi'operty  t'ouiij 
in  the  possession  of  a  fciiic  covcrl  is  the 
l)rcperty  of  her  husband,  — her  possession 
being  his  po.ssession,  —  whei'e  a  niarriid 
woman  undertook  by  her  own  testitnony, 
unsupported  by  any  other  eviilcnce,  to 
overcome  this  presumption,  and  the  jury 
found  against  her,  the  court  refused  to 
disturb  the  verdict,  llenielreieh  v.  Carlos, 
24  Mo.  App.  264.  See,  also,  McKciriui  <: 
Kinney,  22  Mo.  Apji.  555  ;  Weil  v.  Sim- 
mons, 66  Mo.  619,  620.  In  Alaljaina,  also, 
it  has  been  lu^ld  that  the  eainings  of  the 
wife  are  the  property  of  the  husbiUhl,  ami 
though  the  husband  may  renounce  ail  rii,'lit 
to  the  earnings  of  the  wife,  and  pcniiit  iier 
to  retain  them  as  her  own,  such  rcmin- 
ciatiou  is  void  as  against  his  existing 
creditors.  Glaze  v.  Bhike,  56  Ala.  379 ; 
Gordon  v.  Tweedy,  71  Ala.  202  ;  rioyitt 
V.  Potter,  80  Ala.  476  ;  Pvnum  v.  FnMer- 
ick,  81  Ala.  489  ;  Shaetler  v.  Slic|iiiar(l, 
54  Ala.  244  ;  Carleton  v.  liivers,  //-.  4<w  ; 
jMcLemore  v  Pink.ston,  31  Ala.  2i)ti,  3flS. 
And  in  Booker  v.  Waller,  81  Ala.  5,'iti,  it 
was  held,  that  a  husliand  could  net  create 
for  his  wife  a  sejiarate  estate,  to  tlie  preju- 
dice of  those  to  whom  he  was  under  ]ei;;il 
obligations,  and  that  he  could  not  vest 
her  with  a  separate  estate  even  in  lur 
future  earnings  to  the  prejudice  of  existiii? 
creditors ;  and  that,  where  jiropcrty  Ine] 
been  purchased  in  the  name  of  a  /<»: 
covert,  the  burden  was  upon  her  to  prove 
distinctly  that  she  paid  for  the  tliiiit;  piir- 
cha.sed  with  funds  that  were  not  furnished 
by  the  husband.  Evidence  that  she  pur- 
chased amounts  to  nothing,  unles.s  it  is 
accompanied  with  clear    and  full  proof 


m 


•ART   III.] 


MARRIED   WOMEN. 


161 


aiicnt.  There  arc,  however,  cases  in  which  a  jury  may  infer  such 
aircncy.  In  the  cases  of  orders  given  by  tlie  wife  in  tliosc  depart- 
ments of  her  husband's  household  whicli  she  has  under  her  con- 
trol, the  jury  may  infer  that  the  wife  was  tjie  agent  of  her 
hushand  till  the  contrary  appears.  So,  for  sueli  articles  as  arc 
iiL'cesstuT  for  the  wife,  such  as  clothes,  if  tlie  order  is  given  by  the 
wife,  and  she  is  living  with  her  husband,  and  nothing  a^ipcars  to 
tlic  contrary,  the  jury  do  right  by  inferring  tlie  agency  ;  but  if  the 
iinler  is  excessive  in  point  of  extent,  or  if,  when  the  husband  has 
11  small  income,  the  wife  gives  extravagant  orders,  these  are  cir- 
cumstances from  which  the  jury  would  infer  that  there  was  no 
agency.  The  tradesman  who  supplies  the  goods  tahes  the  risk ; 
and  it'  the  bill  is  one  of  an  extravagant  nature,  such  as  the  hus- 
band would  never  have  autb.orized,  that  would  alone  be  suflicicnt 
to  repel  the  inference  of  agency.* 


that  she  jiaM  for  it  with  her  own  separate 
fuiiils  ;  iKit  that  she  had  the  ineaii.s  of  pay- 
iiii,',  but  that  she  in  fact  iiaid.  In  the 
iilisi'ine  (if  siii'li  ]iioof,  the  presiiniiitioii  is 
that  licr  liusliaiiil  fiiinislieil  the  means  of 
liaviiiiiit.  See  McAnally  v.  O'Neal,  56 
Aia.  iW;  Oaniber  V.  Oamher,  18  l*a.  St. 
'■W->;  Kciiiv  i>.  ("rood,  21  lb.  34t»  ;  Ilallow- 
v\\  V.  llusiei',  .'!,'.  Ih.  375  ;  Wititci-  V. 
Walter,  :!"  ///.  l.'>5  ;  liobinson  v.  Wallace, 
;i'.'  ///.  I'J'.i.  But,  ill  Alnhamn,  under  the 
Co,le  (if  lS7t'>,  §  'J709,  it  was  lield,  where 
lui'Miiiid  iir(i|icrty  jinrehased  by  tlie  hus- 
iiaii'l  w.is  [laid  for  with  money  that  was  of 
tliu  ('ii/7/('.<  of  the  wife's  statutory  separate 
cs  ate,  the  ]iroiieity  tlius  purchased  became 
tlic  .S('iJarate  cslate  of  the  wife,  and  that 
the  iModiuts  of  lands  which  were  the 
statiitiiiy  estate  of  the  wife,  could  not  be 
taken  fur  [layineiit  of  the  husliand's  del)ts. 
Ivniiiiii  V.  Dibble,  75  Ala.  351.  Sec 
Fldiininy  i'.  Owens,  74  Ala.  44<3.  And 
set'  lirl(li,'iiiaii  I'.  Uridfonan,  138  Mass.  58  ; 
Howard'  V.  Bryant,  <»  Gray,  23!*  ;  Alex- 
ander !'.  Crittciideii,  4  Allen,  342;  Com- 
iiioinvealtlw.  Manley,12  Pick. 173  ;  Turner 
r.  N'vc,  r  Alien,  17(),  as  to  reduction  of  a 
wife'.';  i7/i.s,,s'  /,)  action  to  possession.  .And 
'(■(',  also,  as  to  a  husbaiul's  ri^'hts  therein, 
ill  Indiana,  on  surviving  his  wife,  not 
liaviiiL;  reduced  the  chmc  into  possession, 
I'dinii  V.  CritclKdl,  110  Ind.  31.  See  as  to 
tin;  cxeiniitidi)  of  a  feme  cnv-rt  fr.>m  lia- 
liility  under  her  contracts,  where  her  sepa- 
rate estate  is  not  cliarf,'(!(l.  Post  >•.  Koch, 
30  Fed.  hep.  '2ii8  ;  or  where  she  has  none, 
''"11(1(111  V.  r.iur,  4!)  N.  J.  L.  53  ;  Eckert  v. 
R'Miter,  4  Vidoin,  2ii6  ;  Von  Kirk  v.  Skill- 
man,  5  VrooMi,  10!» ;  Lewis  v.  Perkins, 
7  Vrooni,  l.'iH ;  Wilson  v.  Herbert,  12 
Vroom,4r(i,  Penty  u.  Simonson,  2  Heas. 
232,    Iteal  estate  paid  for  by  a  member  of 


a  firm  out  of  the  assets  of  the  firm,  and 
conveytul  to  his  wife,  was,  on  the  bank- 
ruptcy of  the  firm,  held  to  be  the  assets 
of  the  linn.  I'hipps  v.  Sedgwick,  95 
U.  .S.  3. 

In  the  National  Bank  of  Railway  v. 
Brewster,  49  N.  .1.  L.  231,  an  action  was 
brought,  by  the  indorsee  before  maturity, 
against  a  married  woman,  on  a  note  given 
by  her  to  a  lirm  of  whi(di  her  husband 
was  a  member.  It  was  Indd  that  the  con- 
tract between  husband  and  wife  was  null 
and  void,  and  that  the  defect  was  inherent 
in  the  contract,  which,  thcrcl'ore,  iiould 
not  be  enforced  at  law.  In  Oould  i». 
Oould,  8  Stew.  Eq.  37,  anirnied,  Ih.  5tJ2, 
a  wife  lent  money  to  her  husband's  lirm 
upon  their  jironiissory  note.  After  his 
death,  she  brought  suit  at  law  against  the 
surviving  members  of  the  lirm.  .Shi!  was 
nonsuited,  and  it  was  held  that  in  order 
to  recover  the  money  she  must  have  re- 
coursi!  to  e(iuitv 

»  Ereestone"(  Butcher,  9  C.  &  P.  643, 
per  Ivord  Abiii^er ;  Atkins  i'.  Curwood, 
7  C.  (&  P.  756  ;  Waithniau  r.  Wakefudd, 
1  Camp.  12(1  ;  Etherington  v.  Parrot,  1 
Salk.  118;  Scott  v.  .Manby,  Sid.  109; 
Montague  V.  Es|iiinisse,  1  ('.  (&  P.  356, 
5112;  Ilouliston  v.  Smith,  2  C  >&  P.  22; 
Mainwaring  J'.  Leslie,  /(/.  5(i7  ;  <  lillord  v. 
Lalon,  3  (''.  &.  P.  15  ;  Heed  v.  Moore,  5  C. 
(.t  P.  200  ;  Atkins  v.  Curwood,  1  C.  &  P. 
756.  In  Lane  v.  Iroiiiiionger,  13  .M.  &  \V. 
368,  the  court  Indd  that  the  law  as  laid 
down  in  Ereestone  v.  Butcher,  9  V.  Si,  P. 
647,  is  substantially  correct,  though  there 
may  be  a  trilling  inaccuracy  in  stating  that 
the  cvtravagance  of  the  bill  would  nhme 
repol  the  inference  of  agency ;  that  that 
alone,  perhaps,  would  not  lie  sufficient, 
but  it  might  be  repelkd  by  that  and  other 


""'Mi 


il  ,i: 


it' 


152 


COMMENTARIES   ON  SALES. 


[book  11, 


As  stated  above,  the  whole  question  is  one  of  agency,  express 
or  implied.     Where  a  plaintiff  seeks  to  charge  a  husband  or  a 


circuiiistaiicps  to^jethor.  But  in  this  cnso 
(Liiiio  V.  lri)iiiii()ii,i;er)  the  judgf,  iit  thu 
triiil,  read,  aiiinovcd,  nnd  adopted  tiie  law 
ns  laid  down  in  B'reestone  o.  Butcher  by 
Lord  Abiiijjer  ;  and  the  Court  of  Exclieijuer, 
in  Lano  (.'.  Ironmonger,  by  their  ju<lgMiciit 
KU.stained  the  ruling.  The  court  thus  fur- 
ther laid  down  the  law  :  "The  whole  turns 
u|)oii  the  ([uestion  of  the  hunband's  author- 
ity ;  and  it  is  for  the  jury  to  say  whether 
the  wife  had  any  such  authority,  and 
whether  the  plaintilf,  who  supplied  her 
with  these  articles,  must  not  have  known 
that  she  was  exceeding  her  husband's  au- 
thority to  pledge  his  credit.  If  he  had 
any  doubts  upon  the  subject  he  might 
liave  made  imjuiric^s  of  the  husband.  It 
was  not  proved  that  the  husband  knew  the 
articles  had  been  ordered  or  saw  his  wife 
wearing  them."  And  the  verdict  of  the 
jury  for  the  defendant,  in  an  action  against 
liini  for  i;r)2S7  "for  bonnets,  feathers, 
lace,  and  ribands,"  supplied  by  the  plain- 
tiff to  the  defcmlant's  wife  during  part  of 
one  year,  was  sustained.  Lane  v.  Iron- 
monger, 13  M.  &  W.  3()8.  See,  also,  Mon- 
tague V.  Beneilict,  3  H.  &C.  635  ;  Jewsbury 
V.  Newbold,  2G  L.  .T.  Kx.  247  ;  Kilmer  v. 
Lynn,  4  N.  &  M.  559.  Where  the  pre- 
sumption of  law  in  favor  of  an  authority 
to  contract  rests  upon  the  fitness  of  the 
articles  supjilied  to  the  j)osition  of  the 
party  who  lias  received  them,  it  may  as 
well  be  rejielled  by  a  deviation  from  what 
is  proper  in  point  of  quantity  as  of  ijuality. 
Johnson  v.  Lines,  6  W,  &  S.  80.  Hut  as 
it  is  a  question  of  agency,  the  pro])er  ipies- 
tion  to  be  submitted  to  the  jury  is  not 
whether  the  goods  supplied  were  necessa- 
ries for  a  jierson  in  the  station  in  life  of 
the  party,  but  whether,  under  all  the  cir- 
cumstances,  there  was  any  authority  in  the 
wife,  .'xpress  or  iin|)lied,  to  contract  for 
them  as  her  linsband's  agent,  lieid  v. 
Teakle,  13  C.  B.  627.  Or,  as  is  laid  down 
by  Bayley,  J.,  in  Montague  v.  Benedict,  3 
B.  &  0.  631 ,  whenever  the  husband  and  wife 
<ire  living  together,  an<l  he  jtrovides  her 
with  necessaries,  the  husband  is  not  bound 
by  contracts  of  the  wife  except  where  there 
is  reasonable  evidence  to  show  tl.at  the 
wife  has  made  the  contract  with  his  assent. 
Etheringtou  v.  Parrot,  2  Ld.  Rayni.  1006  ; 
1  Salk.  1 1 8.  The  question  of  agency  must 
be  left  to  the  jury  on  all  the  facts.  Sea- 
ton  V.  Benedict,  5  IVng.  28  ;  Manby  v. 
Scott,  1  Lev.  4 ;  Freestone  v.  Butcher, 
9  C.  &  P.  643  ;  Lane  v.  Ironmonger,  13 
M.  &  W.  368  ;  Frost  v.  Willis,  13  Vt. 
202  ;  Shelton  v.  Hoadley,  6  Ala.  651  ; 
Shelton  v.  Pendleton,  18  Conn.  417  ; 
Fredd  v.  Eves,  4  Haning.  385  ;  Camerat 


r.  Goldsmith,  4  0a.  14  ;  Cornelia  r.  Ellis, 
11  111.  584  ;  Sawyer  v.  Cutting,  S)  \\ 
486  ;  Ah  :ander  v.  Miller,  16  I'enii.  215, 
But  cohabitation  with  a  wife,  or  with  n 
woman  who  is  held  out  to  the  woiM  iw  Ik.. 
ing  a  wife,  is  evidence  of  tlie  exi^t(•||l■(,l  ol 
an  implied  authority  to  her  to  piutlnisr 
whatever  is  ri'asonably  necessary  lor  Iut- 
self  and  the  family  of  her  real  or  siip|iosi(l 
husband.  See  previous  authorities  eitiil 
in  this  note,  and  see  Uuddock  v.  Marsh, 

I  II.  &  N.  601,  which,  except  as  con- 
fined to  thu  si)ecia!  circumstances  of  thi' 
case,  and  as  regards  authority  whiili  wouM 
as  much  exist  in  favor  of  a  sister,  a  lioust- 
keeper,  or  other  iiorson  presiding  ov('r  tlii> 
management  of  the  house,  was  doulitwlbv 
Brain  well,  L.  J.,  in  Debenham  v.  .Mellon', 
5  (J.  B.  Div.  at  p.  3!)'.>,  where  it  was  lieM 
that  the  wife  is  the  general  agi  nt  ot  Ikt 
husband  with  reference  to  sueli  matters, is 
are  usually  under  the  control  of  the  wife, 
and,  therefore,  where  the  wife  of  a  laborer 
incurred  a  debt  for  provisions  for  tlie  nsc 
of  the  family,  the  husband  was  lieM  liuMe, 
"  with  reference  to  the  circuni.itaiioes  of 
this  ca.se,"  thougli  ho  had  supplied  liis 
wife  with  money  to  keej)  the  lioiise ;  and 
Read  V.  Legard,  6  Ex.  636,  wheie  it  wis 
held  that  a  husban<l  is  liable  lor  neces- 
saries supplied  to  his  wife  duriiiij  tiic  pe- 
riod of  his  lunacy.  See  also  Furlong'  i'. 
Hysoni,  35  Me.  332  ;  Mitchell  r.  Treaiwr, 

II  C.a.  324  ;  McCutcheon  ;;.  .M.(!aliav,ll 
Johns.  281  ;  Gary  w.  I'atton.  2  Asinii.HO. 
But  see  Holt  v.  Brien,  4  B,  &  AM.  2:.2, 
where  the  plaintiff  knew  that  the  wife  li.nl 
an  allowance  for  necessaries  from  her  liiiv 
band.  As  to  what  are  necessaries,  sif 
Morgan  v.  Chetwynd,  4  V.  &  1'.  4,il ; 
Jewsbury  v.  Newbold,  26  L.  .1.  Ex.  '24'; 
Reneaux  v.  Teakle,  2  Kx.  6Sii  ;  Atkiii- 
V.  Curwood,  7  C.  &  P.  756.  When'  liii- 
band  and  wife  are  cohabiting  it  is  a  pre- 
sumption  of  fact  that  she  is  liis  aj,'.!ntfjr 
ordering  articles  supplied  to  their  estali- 
lislnnent  which  are  suitable  to  tiie  statien 
which  he  allows  her  to  assume  ;  but  il 
they  be  un.suitible  to  that  station  a  pre- 
sumption arises  that  she  was  not  his  iigeiii 
to  jiledge  his  credit  for  them.  Harrison 
V.  C.rady,  12  Jur.  N.  s.  140  ;  13  L.  J. 
369. 

A  husband  who  is  able  and  willing  to 
supply  his  wife  with  necessaries,  ami  wti" 
has  forbidden  her  to  pledge  his  (Medit,  can- 
not bo  held  liable  for  necessaries  bouglit 
by  her  ;  and  a  tradesman,  without  imtiie 
of  the  husband's  prohibition,  ami  without 
having  had  previous  dealings  with  tiie  »* 
with  his  a-ssent,  cannot  maintain  an  action 
against  him  for  the  price  of  articles  of 


PART  III.] 


MARRIED   WOMEN. 


153 


contract  made  by  his  wife,  the  question  is  whether  the  wife  had 
Ills  authority,  express  or  implied,  to  malce  the  contract ;  and  that, 


female  attire  suitable  to  her  station  in  life, 

luiil  sii]i]ilit'(l  to  her  upon  iiis  credit,  but 
willioiil  Ills  knowleilj;!'  or  assent.  l)et)en- 
hiiiii  r.  Mtlion,  ji).  15.  D.  'Mi,  ali'nined  in 
the  House  of  Lonls,  Ih.  (5  A  p.  Cas.  24. 

Till'  law  on  the  sulijcet  in  this  country 
is  Hi'ji  sfttlecl,  and  it  is  and  ha.s  lonj;  been 
iincisi'ly  in  accordance  with  the  latest  and 
most  critical  of  the  Knj,'lish  eases.  We 
Lave  ii.iwliere  found  the  law  more  clearly 
or  correitlv  laid  down  than  it  is  by  Wood- 
riili;  .1.,  in  Keller  v.  Phillii.s,  39  N.  Y. 
351 ;  40  Harb.  ;J9() ;  thus  :  "The  rules  of 
law  rclatiuf^  to  the  power  of  tiio  wife  to 
iniid  her  husband  to  payment  for  goods 
|mnliased  by  her  for  the  use  of  herself 
ami  tlie  laniiiy  are  well  settled.  The  hus- 
band is  biaind  to  ]>rovido  for  her  and  them 
vliatfvcr  is  necessary  for  their  suitable 
I'lutliiiif,'  and  maintenance  according  to  his 
and  tlicir  situation  ami  condition  in  life. 
.\n(l  unlinarily  he  will  be  presumed  to  as- 
sent to  her  making  such  i)urchases  as  in 
tlm  cdMiluit  of  the  domestic  concerns  are 
proiiiM-  tor  her  management  and  supervi- 
sion ;  but  he  is  at  liberty  to  withhold  such 
assent  and  destroy  such  presumption  by 
an  express  proliihition  ;  and  if  lie  do  so, 
no  one,  having  notice  tln^reof,  may  trust 
the  wifi'  in  reliance  upon  his  credit,  uidess 
the  Inisband  so  neglects  his  own  duty  that 
suiiplies  become  absolutely  necessary  ac- 
cording to  their  condition.  In  the  pres- 
ent case,  therefore,  tlie  sale  of  the  goods 
being  iMoved,  or  not  being  denied  by  the 
(lel'endant,  the  burden  of  proof  was  ujion 
the  ilefendant  to  show  that  the  credit  was 
given  against  his  express  dissent,  and  no- 
liee  thereof  to  the  plaintilfs.  This  being 
prnved,  the  burden  was  upon  the  plaintilfs 
to  slinw  tliat  the  defendant  did  not  suitably 
]irovide  for  his  family  according  to  his  and 
their  condition,  (if  that  the  plaintiffs 
were  nut  to  bo  the  judges  excejit  at  the 
risk  of  establishing  it  by  proof,  anil  of 
that  they  oll'ered  no  testimony  whatever  ; 
bnt  on  tJie  trial  objected  to  the  defendant's 
lirovini;  al!irmativ(dy  that  he  did  so,  and 
tile  justice  excluded  evidence  offered  by 
liini  tending  to  show  in  what  mode,  and 
in  iKut  to  what  extent,  that  provision  was 
inaile.  The  defendant  was  not  bound  to 
siinw  alliriuatively  that  he  did  so  jirovide, 
an(l  \et,  so  far  as  he  appears  to  have  been 
lienriitted,  his  testimony  went  to  show  that 
he  did  niaku  suitable  provision.  Nor  is  it 
enough  that  the  articles  sold  are  in  their 
nature  and  description  necessary  and  suit- 
able for  the  use  of  the  wife  and  family. 
If  they  were  not  so  there  would  be  no  pre- 
sumption of  the  husband's  assent  to  the 
purehase  in  any  case.    It  is  indispensable, 


where  the  vendor  has  boon  forbidden  to 
Hell  upon  the  wifii's  reiiuest  mi  the  hus- 
band's credit,  that  the  vendor  show  not 
only  that  the  goods  were  in  their  nature 
.suitable  and  necessary,  but  that  the  bus- 
banil  neglei'ti^d  liis  duty  to  jirovide  su|i- 
plies,  and  that  for  that  reason  they  were 
necessary.  Tliese  rules  are  elementary. 
Modern  le'.dslatioii,  in  preserving  to  the 
wife  all  her  own  property,  has  taken  nway 
some  of  tlie  grounds  upon  which  tiic  duty 
of  the  husband  wns  placed  by  the  common 
law ;  but  it  has  not  yet  gone  so  far  as  to 
invest  the  wife  with  a  discretion  which 
the  husband  cannot  control,  and  enable 
her  to  siM'iid  his  proj^rty  or  involve  him 
in  debt  against  his  will."  This  .sound  ex- 
l)osition  of  the  law  has  been  folioweil  in 
this  country  witii  even  greater  uniftu'iiiity 
than  it  has  been  in  Kngland,  where,  as 
will  be  seen  from  the  authorities  we  cite, 
some  of  the  decisions  cannot  be  sujiported, 
and  have  been  in  elfect  overruled  by  some 
nf  the  hitest  cases.  See,  further,  Mott  v. 
Comstock,  8  Wend.  .'')44;  Kimball  v.  Kcyes, 
11  Wend.  33;  Blowers  v.  Sturtevant,  4 
Denio,  49;  Oilman  i-.  Andrus,  28  Vt.  241; 
Waithman  v.  Wakefield,  1  Camp.  121,  pi'.r 
lioril  EUenborougli  ;  Sawyer  v.  Cutting, 
23  Vt.  486  ;  Heiijamin  v.  Benjamin,  15 
Conn.  347  ;  Fclker  i".  Kmerson,  10  Vt. 
653  ;  Church  v.  Landers,  10  Wend.  "!•  ; 
Kotch  V.  Mills,  2  Conn.  638;  Hughes  r. 
Chadwick,  6  Ala.  651.  In  Savage  r. 
Davis,  18  Wis.  608,  the  law  is  succiiictly 
laid  down  thus  :  — 

"  A  wife  may  undoubtedly  act  as  the 
agent  of  her  husband,  and  in  that  char- 
acter transact  his  business,  coiitnd  his 
property,  and  make  contracts  in  respect 
to  it  which  will  bind  him.  This  agency, 
its  nature  and  extent,  and  whether  it  in- 
cludes the  particular  contract,  may,  as  in 
other  cases,  be  inferred  from  a  variety  of 
eirciimstances.  It  is  a  question  for  the 
jury  to  determine  from  all  the  evidence, 
whether  the  wife  li.id  the  authority  to  do 
the  act  or  make  the  contract  in  c|Uestion, 
or  whether  her  act,  unauthorized  at  the 
time  i'i  i-i  performance,  was  rendered 
valid  '  ■  ■  siibse(iuent  ratifii'ation  by  the 
husband,  in  the  management  of  house- 
hold affairs  it  is  said  that  it  will  he  pre- 
sumed, until  the  contrary  apjiears,  that 
she  acts  as  the  agc^  of  her  husband 
(I'iekering  i'.  Pickering,  ^  ...  11.  120); 
but  her  j)ower  to  bind  her  husband  by  her 
contracts  rests  upon  the  sole  ground  of 
agency,  .she  having  as  wife  no  original 
and  inherent  jiower  to  bind  him  by  any 
contract  made  by  her."  Leeds  v.  Vail, 
15  Pa.  St.  185  ;    Freestone  v.  Butcher,  9 


,^!1 

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N  .i 


154 


COMMENTARIES   ON   SALES. 


[hook  II. 


if  there  be  express  authority,  there  is  no  room  for  (loul)t;  nnd  if 
the  authority  ia  to  be  inijilied,  the  presumptions  whieh  may  be  ud- 


C.  &  I'.  043  ;  Diiy  v.  Huriilinm,  3rt  Vt.  37  ; 
ilohnstoii  r.  I'ikc,  14  Lii.  Ann.  731  ;  Mur- 
Him  V.  IIii>,'lii!.s,  'JO  Tux.  Ill;  Fuilonj;  v. 
llysoiii,  3,1  Mu.  332 ;  Ktlicriiigtoii  v. 
raiTot,  1  Sulk.  11«  ;  AI.;f 'utcliuii  v.  Mc 
(iiilmy,  11  .lohiis.  2Sl.  Tin-  liiw  as  laid 
(luwii  ill  Holt  V.  Hi'ii'ii,  4  H.  &  Aid.  25'2, 
was  fdllowt'd  ill  ilai'shiiw  v.  .MtM'rviiiuii, 
18  Mo.  iDii,  that  it'  tln^  liu.stiainl  inakuH  a 
ri.'asoiialilo  allowaiKso  to  thu  wile  fur  lu'ct's- 
mirit'N,  diirinj^  his  tciii|iorary  alisuiicc,  aii<l 
a  tradcsiiiini,  with  iiotioi'  of  this,  su|i|>linH 
hor  with  ^foods,  tho  hiushaiid  is  not  lialilo 
uu!(!ss  the  tradi'sinan  can  hIiow  that  tho 
nllowMiico  was  not  siiii](iii'd.  Si't!  further, 
».H  to  the  husband's  lialiilitii's  on  his  wife's 
contracts,  .Sterling'  i".  I'otts,  f)  N.  .1.  L. 
773  ;  VVillianis  v.  Oowaid,  1  (Irant  (Pa.) 
Cas.  21. 

Ill  Thciiott  i\  na^ior,  9  Bosw.  (X.  Y.) 
i»78,  th(!  ]ilaintill's  sold  j^oods  to  the  de- 
fendant's wife,  after  having  been  forbid- 
den by  the  husband  to  do  so.  The  court 
held  that  the  plaintill's  coultl  not  re- 
cover, unless  under  a  .subseiiueiit  jironi- 
iso  to  pay,  or  that  they  niadu  it  appear 
that  the  articles  funiislicd  were  necessary 
and  suitable  to  her  condition  in  life,  and 
tliat  she  was  not  otherwise  jtrovided  for 
by  her  husband.  The  husljand  is  bound 
to  provide  liis  wife  with  necessaries  suit- 
able to  her  situation  and  his  condition  in 
life.  He  is  liound  by  her  contract,  for 
onlinary  purchases,  from  a  ])resunici  as- 
sent-on his  part  ;  but  if  his  dissent  be 
jjieviously  made  known,  the  presumption 
of  his  a.ssent  is  rebutted,  and  he  is  not 
liable,  unless  the  seller  shows  the  abso- 
lute necessity  of  the  purchase  for  her 
comfort.  Ktherinston  v.  Parrot,  1  Salk. 
118.  Outside  of  the  matter  of  necessa- 
ries, a  wife,  as  such,  has  no  oiif^inal  or 
inherent  i)ower  to  make  any  contract  which 
is  obligatory  on  her  husband.  No  such 
rif^ht  arises  from  the  marital  relation  be- 
tween them.  If,  therefore,  she  possesses 
a  power  in  any  case  to  bind  him,  by  her 
contracts  made  on  his  behalf,  it  must  bo 
by  virtue  of  an  authority  derived  from 
him,  and  founded  on  his  assent  ;  although 
such  assent  may  be  precedent  or  subse- 
iiueiit, and  cx[)ress  or  implied.  Whore 
such  authority  is  conferred,  the  relation 
between  tlieiu  and  the  conseiiuences  of 
that  relation  are  analogous  to  those  in 
the  ordinary  case  of  principal  and  agent. 
Anrl  that  she  has  the  capacity  to  be  consti- 
tuted, by  the  husband,  his  agent,  and  to 
act  as  such  equally  with  any  other  person, 
there  is  no  doubt.  Fitz.  Nat.  Brev,  120 
(x.  ;  Vin.  Abr.  tit.  Baron  <b  Feme,  E. 
A.  ;   1  Bac.  Ab.  499 ;  Bull,  N .  P.  136. 


But,   admitting  the  correctness  of  tlicsi' 

iirincipics,  it  wai  held  in  Keiijaiiilii  r. 
Icnjamin,  LI  Ci  nn.  347,  in  u  will-inii- 
siilcicd  Jiidginei'f,  that,  as  u  ]iiisiuii|). 
tion  arising  Iroiii  the  statu  of  suiiriy,  tli*' 
law  will,  in  some  cases,  prisiimc  tiio  witi' 
to  be  the  agent  of  the  husl)aiiil,  wjirii  no 
such   i>rcsuiiiptioii  would  cxi.-.t  as  to  aii- 

other  person;  and  also  will,  in  soi mm.s, 

imply  a  larger  authority  to  the  \\\{r  liiiiri 
to  an  ordinary  agent  ;  and  this  piiliajis, 
whether  the  hllsiialld  be  alisi'iit  liiiiii  liiimu 
or  not ;  and  that,  in  other  cases,  wlieii'  lio 
III!  is  absent,  a  presuiiiptioii  would  aiise 
that  his  wife  has  authority  to  ait  in  liis 
behalf,  which  would  not  exist  if  he  wimv 
at  home  ;  thesit  inferences  being  fouiiiliil 
on  the  fact  that  it  is  usual  and  eusuiMiuiy 
to  permit  the  wife  to  act  in  such  cases. 
See  ileader  v.  Page,  3i)  Vt.  Iloi!,  whm 
the  wife's  agency  was  sustaiiieil  ;  .\ii(ia., 
1  Str.  r>i7  ;  Church  v.  Landers,  In  Wcml. 
TJ  ;  Spencer  v.  Tisne,  Addis.  It,  ;jlij. 
I!ut  this  does  not  sanction  the  ilmlriiie 
that  the  wife,  whether  the  IuisIhiimI  is 
abroad  or  at  home,  is  presumed  to  lii'tiii' 
agent  of  her  husband  geni'rally,  <!r  to  bo 
entr  \l  with  any  other  authority  as  to 
hi  s,  than  that  whieh  it  is  usual  iiinl 

ci  •'  to  confer  ujioii   the  wile.     It 

Wuii.  lie  not  only  unreasonalile,  anil,  us 
it  respects  the  husband's  inteivsts,  un- 
safe ;  but  it  would  be  going  beyond  what 
could  fairly  be  presumed  to  be  his  inten- 
tion, to  extend  the  pow<'r.s  of  the  wile  liy 
implication  or  piesumption  farther  tliiiii 
this  princiido  warrants.  Hence,  in  liinjii- 
min  I'.  Benjamin,  15 ( 'oiiii.  347,  it  \v,is Inlil, 
that  the  husband  was  not  bound  by  a  idii- 
traet  made  by  his  wife,  not  for  neirssa- 
ries,  and  not  within  the  ^cope  ul'  liir 
agency,  in  respect  to  a  matter  that  woiilii 
only  belong  to  his  general  agent,  or  tn  <iiii' 
to  whom  a  special  authority  was  given. 
liut,  as  fre(]uently  is  the  case  whcio  ii 
married  woman,  liy  the  cruelty  of  iier 
husband  is  driven  from  his  home  witlimit 
means  of  sujiport,  — a  subject  whirli  we 
fully  consider  in  the  next  section  of  tliis 
Part,  —  th  husliand  may  be  lialile  lor 
necessaries  furnished  the  wife,  in  ceiti'ii 
cases,  thimgh  the  existence  of  an  aueiiey 
or  a. .sent,  exjuess  or  implied  in  fart,  is 
wholly  disproved  by  the  eviilciiee  ;  and 
this,  upon  the  ground  of  agency  iin]ili"l 
in  law,  though  there  can  be  none  pre- 
sumed in  fact.  It  is  a  settled  prineiple 
in  the  law  of  husband  and  wile,  tli  it,  by 
virtue  of  the  marital  relation,  ami  in  'Hii- 
sequence  of  the  obligations  nssniuol  by 
him  upon  marriage,  the  jiusband  is  lejally 
bound  for  the  supply  of  necessaries  to  the 


I'ART   III.] 


MARRIED  WOMEN. 


155 


vanced  on  one  side  may  be  rebutted  on  the  other ;  and  although 
tlicic  in  iv  presumption  tliat  a  woman  livinu;  with  a  man  and  rep- 
rcst'iitt'd  by  liini  to  be?  his  wife,  has  hi!=i  p.uthority  to  bind  him  l>y 
her  contract  for  artieU's  suitable  to  that  station  which  he  per- 
mits lur  to  assume,  still  this  prosumption  is  always  open  to  be 
n.'liiiltcil.' 

Hut  this  does  not  militate  ajj^ainst  the  rule  that  the  liusband,  as 
wi'li  as  every  principal,  is  conelud(!d  from  dcnyinir  that  the  a<.'ent 
luid  siK'h  iiutliority  as  he  was  held  out  by  his  priiuMpal  to  have,  in 
.siicli  a  manner  as  to  raise  a  belief  in  such  authority,  acted  on  in 
inukiau'tiie  contract  sought  to  l)e  enforced.  On  these  principles,  it 
was  held  that  a  verdict  for  necessaries  suitable  to  the  estate  and 
ilcgree  of  the  husband,  ol)tained  from  th(!  plaintiffs  by  tin;  wife  of 
tlie  defendant  without  his  authority  and  contrary  to  his  order, 
could  nut  be  sujiported.^  This  case  has  iicen  since  repeatedly  fol- 
lowed and  approved,  and  it  seems  in  harmony  with  all  the  well- 
(k'cideil  cases  on  the  subject.  We  follow  up  the  consideration  of 
flic  siiiiject  under  the  liglit  cast  upon  it  by  the  latest  cases. 

\\'lic'ro  the  husband  neither  does  nor  assents  to  any  act  to  show 
that  lie  has  held  out  his  wife  as  his  agent  to  i)ledgc  his  credit  for 
irooils  supplied  on  her  order,  the  question  whether  she  bears  that 
clianioter  uuist  be  examined  U|x)n  the  circumstances  of  the  case. 
That  question  is  one  of  fact.  The  management  of  the  husband's 
house  would  raise  a  presumption  of  agency  as  to  matters  neces- 
sarily connected  with  that  management,  which  miglit  not  be  got 
rid  of  liy  a  iww  i)rlvatc  arrangement  between  husljand  and  wife ; 
otherwise  where  such  management  did  not  exist. 

Thus,  A.  was  the  manager  of  a  limited  conqiany's  hotel  at  Brad- 
ford, where  his  wife  acted  as  manageress.  They  cohabited.  He 
made  his  wife  an  allowance  for  clothes,  but  forbade  her  to  pledge 
his  credit  for  them.     She  purchased  clothes  in  London,  the  bills 


i    < 


wifi>,  sn  Inng  as  she  dops  not  violate  her 
duty  as  will' ;  that  is  to  say,  so  loii<{  as 
siic  is  not  f,'uilty  oC  ailulti-ry  or  elopoiiicut. 
Till'  Jmsliaiiil  may  ilisciiart^c  tliis  ohlij;a- 
tii>ii  hy  suiiplyiii;,'  her  with  necessaries 
liiiiisi'li' ur  liy  his  a^'eiits,  or  giviiij^  her  an 
■iilii|iiiite  alliiwaiiee  in  money,  and  then  lie 
i-i  not  iialile  to  a  tiaih-snian  who,  witliout 
liis  authority,  t'uniishes  her  witli  necessa- 
•  ii'.-' ;  hut  it  he  does  not  himself  ]<roviile 
lor  licr  suiiport,  he  is  legally  liable  for 
ni'pissiiries  liindsheil  to  her  1)y  tradesmen, 
'Via  tlioiiuli  against  his  orders.  Croni- 
"'■11  V.  Hcnjaniiii,  41  Harb.  .ISS.  And 
«iu>tlier  the  liushand  is  liahle  for  services 
rpnilireil  his  wife,  or  goods  supjilied  to 
nor,  though  the  general  rule  is  that  the 
husband  is  not  liable  without  his  assent, 


express  or  implied,  yit  this  assent  may  he 
inferred  from  eiri'iiiiistunres,  such  as  the 
necessity  the  wile  stood  in  lor  them,  and 
the  relative  situation  of  the  ]iarties,  as 
connected  with  the  treatment  of  each 
otiier  ;  the  (iiii'stioii  ol  necessaries  being 
a  relative  lact,  de|iendiiig  upon  tlu;  stand- 
ing and  cireiimstances  of  the  party.  .*>hel- 
ton  V.  Iloadley,  1;")  Conn.  535  ;  Ford  v. 
Fothergill,  1  Msp.  211.  .See  .Scgelbaum 
V.  Knsniinger,  117  Pa.  St.  248,  where  the 
wifii's  purchases,  against  the  husband's 
notice,  were  liehl  not  to  bind  him. 

1  Manby  «?.  .Si'utt,  1  Sid.  10!);  Kthering- 
ton  V.  Parrot,  2  Ld.  l!avm.  100« ;  1  Salk. 
118;  .Tolly  v.  I  tees,  15  C.  B.  N.  s.  tJ28. 

'•^  Jolly  I'.  Rees,  15  C.  B.  N.  s.  628. 


if 


156 


COMMENTARIES  ON  SALES. 


[book  II. 


i'iii 


mj.i 


for  wliich  were  made  out  in  her  name  and  were  paid  by  her.  She 
iifterv/ards  incurred  with  the  same  tradesmen  a  debt  for  clothes, 
payment  for  which  was  deraanded  from  the  husband,  with  wliom, 
previously,  they  had  had  no  communication.  On  the  trial  before 
Bowen,  J.,  the  jury  found  that,  at  the  time  the  goods  were  ordered, 
tht  defendant  had  withdrawn  from  his  wife  authority  to  pledge 
)iis  credit,  and  had  forbidden  her  to  pledge  it.  Judgment  liaviii" 
been  entered,  accordingly,  for  the  defendant,  the  Queen's  Bench 
Division  refused  a  new  trial.  On  appeal  to  the  Court  of  Appeals, 
the  lords  justices,  following  and  adopting  the  decision  in  Jolly  v. 
Rees,'  affirmed  the  ruling  in  the  court  below.'*  The  House  of 
Lords  sustained  the  judgment.^ 


-  15  C.  B.  N.  s.  623 ;  33  L.  J.  C.  P. 
177. 

2  Debonham  v.  Mellon,  5  Q.  B.  D.  394. 

8  Ibid.,  6  App.  Cas.  24.  The  law  on 
the  (iiu'stion  is  thus  laid  down  by  Lord 
Blarkbuni  in  his  judj^iupnt :  "  I  premise, 
as  did  the  majority  of  the  court  in  Jolly  v 
Bee?  (15  C.  H.  N.  s.  628  ;  33  L.  J.  C.  P. 
177),  by  saying  that  no  question  arises 
here  as  to  what  would  be  the  case  if  the 
wife  had  been  left  destitute,  and  had  not 
been  allowed  what  was  i)roper  for  her 
estate  and  condition.  If  there  had  been 
desertion  and  cruelty,  so  that  she  had  not 
been  supplied  with  what  was  proper,  no 
question  arises  here  as  to  wliether  she 
would  not  have  had  authority  to  pledge 
her  husband's  credit  to  get  such  things. 
That  is  not  the  case  here  at  all.  This  is 
simply  a  case  where  a  husband  is  living 
with  his  wife,  though  they  are  not  keeping 
up  any  household  e.  tablishment  ;  and  he 
in  fact  makes  iier  an  allowance  which 
both  husband  and  wife  seemed  to  think, 
so  far  as  one  can  judge  from  appearances, 
would  be  sutlicient  to  enable  her  to  supply 
herself  with  all  necessary  clothes.  She 
did  get  clothes,  and  there  v"<s  evidence 
which  sartistied  the  jury  that  tho  husband 
really  and  truly  told  \wv  thac  she  was  not 
to  pletlge  his  credit,  and  that  she  had  as- 
sented. The  question  comes  to  be,  first, 
had  she,  from  hei  position  as  '.wie,  a'.'thor- 
ity  to  pledge  her  husband's  credit,  although 
the  husband  had  revoked  that  authority  ? 
I  grant  that  the  fact  of  a  man  living  with 
his  wife,  frequently,  and  indeed  always, 
does  afford  evidence  that  he  entrusts  her 
with  such  authorities  as  are  coinnionly 
and  ordinarily  given  by  husband  to  wife. 
I  should  SUV  that  it  migiit  In;  a  matter  of 
doubt  whether  it  is  so  perfectly  certain 
that  the  articles  supjilied  by  miliinei-s  are 
always  to  be  procured  upon  the  ciedii  uf 
the  husband,  so  as  to  make  that  a  primd 
facie  part  of  the  authority.  But  I  will 
assume  that    it  would  be  so.      In    the 


ordinary  case  of  the  management  of  a 
household  the  wife  is  the  manager  ot  iiie 
household,  and  would  necessarily  gn 
short  and  reasonable  credit  on  buiuliers' 
and  bakers'  bills,  and  such  things  ;  aiiil 
for  those  she  would  have  authority  to 
pledge  the  credit  of  the  htisband.  1  think 
that  if  the  husband  and  wife  are  liviii); 
together,  that  is  a  presumjition  of  fait 
from  which  the  jury  may  infer  that  tiif 
husband  really  did  give  his  wife  such 
authority.  But  even  then,  I  do  not  think 
the  autiiority  would  arise,  so  long  as  he 
supplied  her  with  the  means  of  procuring 
the  articles  otherwise.  Hut  that  is  no: 
the  present  question,  which  is  this :  liad 
the  wife  a  mandate  to  order  the  clotlits 
which  it  would  be  proper  for  her  in  her 
station  in  life  to  have,  though  the  husbami 
had  forbidden  her  to  pledge  his  credit, 
and  had  given  her  money  to  buy  clothes! 
I  think,  for  the  reasons  given  by  the  ma- 
jority of  the  court  in  Jolly  c.  ivees  (15 
C.  B.  N.  s.  628 ;  33  \,.  J.  C.  P.  177),  and 
also  by  the  judges  in  the  Court  of  Aiijica! 
in  this  case,  that  there  is  no  atitlioiity 
and  no  princinle  for  saying  that  the  wife 
had  authority  to  plei^e  her  husbands 
credit.  I  quite  agree  that  if  the  liiisbaoii 
knew  that  the  wife  had  got  credit,  if  lie 
had  allowed  the  tradesmen  to  Mippose 
that  he  himself  had  sanctioned  the  tniiiv 
actions,  by  paying  them  or  in  other  ways, 
it  might  very  well  be  argued  that  he  would 
have  given  such  evidence  of  authority 
that  if  he  did  revoke  it  he  would  helwiind 
to  give  notice  of  the  revocation  to  the 
tradesmen  and  to  all  who  had  aeteil  iijion 
the  faith  of  his  authority  and  sanction. 
That  would  lie  the  general  rule,  for  when" 
an  agent  is  clothed  with  an  aulhority.  and 
afterwards  that  authority  is  vevokid,  un- 
less that  revocation  has  Wen  niaile  known 
.  to  those  who  have  dealt  witli  liiiii,  tiiey 
would  be  entitled  to  say,  'the  ]iriiici|ial  is 
f r-'iluded  from  denying  that  that aiithorit) 
continued  to  exist,  which  he  had  led  us 


PART  III.] 


MARRIED  WOMEN. 


157 


The  plaintiff  sued  the  defendant  for  the  price  of  goods  supplied 
to  the  defendant's  wife.  Tha  defendant,  at  the  time  the  goods 
were  supplied,  was  a  clerk  at  £400  a  year ;  living  in  a  house  the 
rent  of  which  was  £70  per  annum  ;  having  two  children,  and 
kecpiii'f  three  servants  ;  the  wife  having  a  separate  income  of  £90 
a  year.  The  goods,  though  luxuries,  were  luund  by  the  jury  to  be 
suitable  and  proper  to  the  wife's  condition.  The  defendant  had 
no  knowledge  that  his  wife  was  purv-jlmsing  the  goods,  and  swore 
that  he  had  never  bought  any  goods  at  the  plaintiff's  shop  on 
credit;  and  that  he  had  never  authorized  his  wife  to  pledge  his 
credit,  but,  on  the  contrary,  had  expressly  desired  her  not  to  do 
so.  Two  successive  juries  gav-j  verdicts  for  tiie  plaintiff.  In 
leaving  the  case  to  the  latter  of  die  two  juries,  the  judge  (Bylcs, 
J.)  said :  "  For  myself,  I  certainly  had  thought,  but  erroneously, 
that  a  tradesman  was  not  bound  by  a  limitation  of  the  ordinary 
autliority  between  husband  and  wife  unknown  to  him.  But  the 
Court  of  Common  Plet's  has  held  a  contrary  opinion  ;^  and  the  law 
is,  as  I  understand  it,  that  even  if  these  things  were  all  of  them 
necessary,  yet  if  the  wife  in  point  of  fact,  although  the  tradesman 
did  not  know  it,  was  prohibited  by  her  husband  from  incurring 
those  or  any  other  debts,  the  plaintiff  cannot  recover."  On  mo- 
tion to  enter  a  nonsuit,  the  principles  goveri.'ug  the  case  were 
thus  laid  down  :  '^  — 

"  In  this  case  the  wife  eloped  from  her  husband,  and  then 
he  for  the  first  time  discovered  that  siie  had  been  professing 
to  pledge  his  credit  for  things  which  he  never  in  any  sensc; 
authorized  her  to  purchase,  and  which  he  never  before  saw  oi 
heard  of.  If  he  is  bound  to  pay  for  those  articles  it  must  be  be- 
cause the  law  infers  from  the  relation  of  husband  and  wife  some 
autlioritv  in  the  wife  to  order  them.  What  the  law  does  in^'er  is 
that  the  wife  has  authority  to  contract  for  things  that  are  really 


to  believe,  as  reasonable  people,  did  for- 
merly exist.'  Now  there  may  be  ninny  cases 
in  wiiiih  the  liusbiUKi  has  so  sanctioned 
his  wife's  ]ile(lpii(r  liis  credit,  but  there  is 
imt  any  siicli  case  here.  The  case  in  Ire- 
land to  whicli  we  have  been  referred, 
se.Mus,  as  far  as  1  could  see  by  a  slight 
yliinee,  to  be  a  case  where  the  husband 
had  assented  to  the  contracts  in  such  a 
way  that  he  could  not  deny  them  after- 
Aards.  With  tliat  we  have  nothing  at  pres- 
ent to  do.  Hut  I  cannot  agree  with  jny 
hretliiT  Pyles  that  there  is  any  autliority 
entalilisheii  by  the  cases  that  the  fact  that 
.1  wife  is  liviiii;  with  a  husband,  alone  ?n- 
titles  the  tradesmen  to  iircsunie  that  the 
imsliand  has  f,'iveii  an  authority  so  as  to 
lireclude  the  husband  from  denying  it.     I 


think  that  when  husband  and  wife  are 
living  together,  it  is  opi^n  to  the  husband 
to  prove,  if  he  can,  the  fact  that  the 
authoiity  docs  not  exist,  it  l)eing  a  ques- 
tion for  the  jury  whether  a  ixmd  fi,de 
autb  inty  did  or  did  not  exist.  This  is 
noi,  "  ia.se  of  withdrawing^  authority  once 
gi'"  >i.  Th(!  question  is  whether  the  plnin- 
t'i;.-.  \.-ho  had  ncverdeiilt  with  the  husband 
fefu.e,  were  entitled  to  assume  that  th  "» 
was  such  an  authority  to  the  wife  im]ilied 
in  the  mere  fact  that  the  wife  was  living 
with  her  husbaml ;  and  I  think  the  law  is 
not  so."  See  Moylan  »'.  Nolan,  17  Ir.  (.'. 
L.  U.  427;  the  Irish  ca.se  referred  to  above. 

»  In  .lollv  V.  Hees,  15  C.  B.  N.  .s.  628  ; 
33  L.  .1.  C.  r.  177. 

a  Per  Willes,  J.,  at  p.  42. 


>l  H.J  I 


158 


COMMENTARIES  ON  SALES. 


[book  II. 


necessary  and  suitable  to  the  style  in  which  the  husband  chooses 
to  live,  in  so  far  as  the  articles  fall  fairly  within  the  domestic 
department  which  is  ordinarily  confided  to  the  management  of 
the  wife.  And  it  is  incumbent  on  the  tradesman  who  relies  upon 
the  goods  coming  within  that  description  to  prove  affirmativeh' 
that  they  do  so.  The  burden  of  proof  lies  on  him.  Ho  must 
show,  not  that  they  must  have  been  such  articles  as  come  vvitliin 
that  im[)lied  authority,  but  so  strong  a  probability  that  they  were 
as  to  induce  any  reasonable  mind  to  infer  that  the  wife  was  actinfr 
under  the  authority  of  her  husband.  It  is  not  enough,  where  the 
burthen  of  proof  lies  on  the  plaintiff,  for  him  to  prove  facts  which  are 
equally  consistent  with  the  affirmative  or  the  negative  of  the  proposi- 
tions sought  to  be  made  out."   A  nonsuit  was  entered  accordingly.' 


Kl 


»  Phillipson  v.  Hayter.L.  R.  6  C.  P.  38. 
And  see  Freestone  v.  Butcher.  9  C.  &  P. 
643  ;  Kelly  v.  Phillips,  40  Barb.  390 ; 
Cromwell  v.  Benjamin,  41  Barb.  5.i8 ; 
Lane  v.  Ironmonger,  13  M.  &  W.  368  ; 
Ruddock  V.  Marsh,  1  H.  &  N.  601 ;  Manby 
V.  Scott,  Sid.  109  ;  1  Lev.  4  ;  Dyer  -k 
East,  1  Mod.  9 ;  Tod  v.  Stokes,  12  Mod. 
244  ;  Ethevington  v.  Parrot,  2  Ld.  Raym. 
1006  ;  Waithman  v.  Wakefield,  1  Camp. 
120 ;  Bolton  v.  Prentice,  2  Str.  1214 ; 
Holt  V.  Brion,  4  B.  &  Aid.  2:)2 ;  Montague 
V.  Benedict,  3  B.  &  ('.  631  ;  Ryan  v. 
Sams,  12  Q.  B.  460  ;  Read  v.  Legard,  6  Ex. 
636  ;  Johnston  v.  Sumner,  3  H.  &  N.  261 ; 
Reid  V.  Teakle,  13  C.  B.  627  ;  Munro  v. 
lie  Chemant,  4  Camp.  215  ;  Atkyns  v. 
Pearce,  2  C.  H.  N.  s.  763  ;  ,\tkins  v.  Car- 
wood,  7  C.  &  P.  506  ;  Mizen  v.  Pick,  3 
M.  &  W.  481  ;  Uichardpoii  v.  Du  Bois, 
L.  R.  5  Q.  B.  51  ;  Eastland  v.  Burcheil, 
3  Q.  B.  D.  432 ;  Shoolbred  v.  Baker,  16 
L.  T.  1357;  Moylan  v.  iNokn,  17  Ir.  C. 
L.  R.  427. 

By  section  2214  of  the  Iowa  Code  it  is 
provided  "  that  expenses  of  the  family  are 
chargeable  ujioii  the  property  of  botii  hus- 
band and  wife,  or  either  of  them,  and  in 
relation  thereto  they  may  be  sued  jointly 
or  separately."  In  Devendorf  w.  Emerson, 
66  Iowa,  698,  the  defendant,  in  writing, 
forba<le  plaintilfs  to  sell  goods  to  his  wife 
on  his  account,  tlie  husband  having  no 
account  with  the  plaintiffs  at  the  time. 
Plaintiffs  thereiifter  sold  to  defendant's 
wife  family  .-,up[ilies  on  the  husband's  ac- 
count, and  the  same  were  nsed  as  such, 
and  there  was  no  evidence  that  there  was 
a  ne.-esaity  for  such  pundiase  V)y  the  wife 
by  failure  of  the  husband  to  furnish  .said 
supplies.  The  court  held,  that  while  the 
section  of  the  Code  is  a  necessary  protec- 
tion to  merchants  who  in  good  faith  fur- 
nish family  supplies,  and  authorizes  them 
to  look  to  tiie  husband  or  wife  for  pay- 


ment,   without    any   investigation  a.s  to 
which  of  them  is  tlie  owner  of  the  fiunily 
property ;  yet  as  tiie  plaintiffs  sold  the 
goods  to  the  wife,  against  his  written  pro- 
test, and  knowing  that  tiie  husbaud  was 
supplying  his  family  in  his  own  way,  the 
section  did  not  take  away  the  rigiit  of  a 
provident  husband   to  supply  his  faniily 
with  a  support  and  mainteniince  in  hi.s 
own  way,  in  cases  where  the  family  de- 
pends upon  him  for  support ;   and  that, 
as  he  furnished  the  family  snp]ilies,  the 
statute  did  not  deprive  him  of  tiie  rij^lit  to 
make  the  necessary  purchases  from  such 
persons  as  he  saw  fit.     The  legal  impli- 
cation  is  that   purchases  of    necessaries, 
although  made  by  the  wife,  are  on  accoiint 
of  the  husband  ;  and  before  the  wile  can 
be  charged  with  liability,  this  iniplicatinii 
must  be  overcome  by  proof  that  by  tier  ex- 
press contract,  or  by  circumstances  other 
than  the  purchase  of  the  goods  by  her, 
fo'rly  establishing  a  case  of  implied  con- 
tract, she  has  assumed  an  individual  re- 
sponsibility.    Chester  v.  Pierce,  33  Minn, 
370  ;  Flynn  v.  Messenger,  28  Minn.  'JuS; 
Wilson  I'.  Herbert,  41  N.  J.  L.  4,14.    A 
joint  pundiaso  of  necessaries  by  husliand 
and  wife  is  regarded  in  law  as  the  coiitnict 
of  the  husband  alone ;    and   while  liouk 
entrie.s,  charging  the  gocds  to  thcni  jointly, 
are  picsumptive  eviilence  of  a  sale  on  his 
credit,  they  are  not  conclusive  of  that  tact. 
It  may  nevertheless,  under  tiie   I'ennsyl- 
vania  Married  Woman's  Act,  be  shown  that 
they  were  purchased  by  the  wilr  ami  on 
her  credit.     Uigoney».  Nerinan,  i'-i  1'.  F. 
Smith,  330.     But  while  that  net  enables 
the  wife  to  bind  lier  separate  estate  tor 
necessaries,  the  very  essence  of  her  liahility 
is  that  they  were  furnished  at  her  ie(|ncst 
and  on  her  credit.    If  not  so  furnished,  her 
separate  estate  cannot  be  made  liable,  .'^iw'- 
teile's  Appeal,  3  Nonis,  306,  311  ;  ilolli'. 
Koerper,  103  Pa.  St.  396.    Tlie  coiiunon- 


PAKT  in.] 


HARRIED   WOMEN. 


159 


3.  Married  Women  as  Agents  op  Necessity. 


The  author  of  a  very  popular  law  work  in  this  country,  stating 
a  principle  that  would  render  not  "  voidable "  only,  but  abso- 
lutely "  void,"  all  the  contracts  of  infants,  lunatics,  drunlcards, 
aiifl  married  women,  says :  "  Some  of  the  above  authorities  cer- 
tainly seem  to  be  inconsistent  with  the  principle  that  a  person  in 
a  state  of  intoxication  has  no  agreeing  mind,  and  therefore  there 
never  was  a  contract  between  the  parties.  We  think  this  princiflej 
however,  the  true  one."  ^ 

The  learned  author  evidently,  in  that  connection,  lost  sight  of 
the  difference  between  express  and  implied  contracts,  which  is  well 
pointed  out  by  Pollock,  C.  B.,  thus  :  "  With  regard,  however,  to 
contracts  which  it  is  sought  to  avoid  on  the  ground  of  intoxica- 
tion, tlicre  is  a  distinction  between  express  and  implied  contracts. 
Where  the  right  of  action  is  grounded  upon  a  specific,  distinct 
contract,  requiring  the  assent  of  both  parties,  and  one  of  them  is 
incapable  of  assenting,  in  such  a  case  there  can  be  no  binding  con- 
tract ;  but  in  many  cases  the  law  does  not  require  an  actual 
agreement  between  the  parties,  but  implies  a  contract  from  tlie 
circumstances  ;  in  fact,  the  law  itself  makes  the  contract  for  the 
jiarties.  Tlius,  in  actions  for  money  had  and  received  to  the  plain- 
tiff's use,  or  money  paid  by  him  to  the  defendant's  use,  the  action 
may  lie  against  the  defendant,  even  though  he  may  have  protested 
against  such  a  contract.  So  a  tradesman  who  supplies  a  drunken 
man  with  necessaries,  may  recover  the  pri^'e  of  them  if  the  party 
keeps  tliem  when  he  becomes  sol  "r,  although  a  count  for  goods 
bargained  and  sold  would  fail.'''"^ 

Where  a  married  woman  is  com|iclled,  through  the  miscojuluct 
of  her  husband,  to  leave  him,  she  is  clothed  with  the  jtuwer  of 
binding  him  by  her  contracts  for  necessaric .  Here  i>  very 
aiicli  less  of  the  " agreeing  mind,"  of  which  Prof.  Parson  speaks, 
than  in  the  cases  to  which  he  refers.     For  not  only,  in  clothing 


l^w  nilo  in  rogard  to  the  presumed  author- 
ity of  tin;  wife  to  bind  her  husbi^iid  hv  her 
coiitriK  ts  for  iieeossaries  has  been  heiu  "not 
to  lie  cliauged  in  Minnesota  by  the  stat- 
iiti's  ivhitin};  to  the  rifjhcs  and  liabilities 
iif  niiinircl  women.  Flyiin  t'.  Messenger, 
28  Minn.  208.  Henee.'it  has  been  held 
tilcrc,  where  a  wife  living  witii  her  hus- 
liainl  einjiloyed  a  servant  for  ordinary 
iloinestic  '.-ivice  in  their  family,  her  hus- 
Iwiiil  was  iniiiliidly  liable  forsueh  services. 
It  is  not  necessary  to  show  any  exjiress 
aiitiuiiity  fniin  the  husband  to  make  the 
contract.  This  is  within  the  presumed 
authority  of  the  wife,  and  in  employing 


such  servant  she  is  prcsunn  1  to  be  acting 
for  the  husband.  "\Vagner  v.  Nagel,  \i'i 
Minn.  348. 

1  1  Pars,  on  Con.  434,  note  d. 

2  Gore  V.  Gibson,  13  M.  &  \V.  i,t  ].  r.25. 
In  this  case  both  Parke,  I!.,  ni  i  .Xlder- 
son,  H.,  make  the  very  conininn  mistake  of 
using  the  word  "  void  "  where  tboy  evident- 
ly meant  only  "voidable,"  and  as  e(|uiva- 
lent  to  "  he  cannot  be  compelled  to  perform 
the  contract,"  i.  c,  without  aflirming  it. 
See  this  reflected  on  by  Martin,  B.,  in 
Matthews  v.  Baxter,  L.  U.  8  Kx.  133. 
See  Molton  v.  (^amroux,  2  Fx.  487,  for 
another  instance  of  such  a  mistake. 


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160 


COMMENTARIES  ON  SALES- 


[book  II. 


the  wife  with  such  a  power,  is  there  generally  no- agreeing  mind; 
but,  as  a  rule,  such  power  is  exercised  by  the  wife  against  the 
express  dissent  of  her  husband.  She  is  clothed  with  the  implied 
power  to  bind  him  as  his  agent,  which  arises  out  of  the  necessities 
of  the  case ;  and  she  is,  therefore,  not  infrequently,  and  very  prop- 
erly, called  an  Agent  of  Necessity.^ 

Tlie  usual  cases  of  agency  of  necessity  are  those  of  married 
women  and  ship-masters ;  ^  although  there  are  many  other  in- 
stances where  such  a  power  springs  into  existence  from  the  neces- 
sities of  the  case.* 


1  In  Johnson  v  Sumner,  3  H.  &  N. 
261,  265,  I'ollock,  C.  B.,  says  :  "  We  havo 
not  to  interpret  a  positive  law,  but  to  as- 
eortain  the  iirincipie  on  which  a  husband 
has  been  held  hable  for  goods  furnished 
to  his  wife,  and  see  how  far,  or  wliether  at 
all,  it  applies  to  this  case.  Now,  the 
principle  seems  to  bo  merely  that  of 
aj?ency ;  the  wife  is  spoken  of  as  the  hus- 
band's agent,  as  having  his  authority, 
and  the  declaration  is  as  upon  a  contract 
by  him  through  his  wife  as  an  agent. 
The  ((Uestion  then  to  be  resolved  is,  had 
the  wife  authority  to  pledge  the  husband's 
credit.  Now,  authority  may  be  express  or 
implied,  or  arising  from  conduct,  as  where 
one  person  holds  out  another  in  such  way 
as  to  induce  a  Ixdief  of  authority ;  or  there 
may  be  an  aiUkorily  from  necessity,  as  in 
the  case  of  the  captain  of  a  ship  under  cer- 
tain circumstances.  If  a  nian  and  his 
wife  live  together,  it  matters  not  what 
private  agreement  they  may  ntake,  the 
wife  has  all  usual  authorities  ' "  a  wife.  If 
the  husband  turns  his  wife  away,  it  is 
not  unreasonable  to  say  she  hasajt  author- 
ity of  necessity ;  for  sl»e  by  law  has  no 
property,  and  may  not  be  able  to  earn  her 
living  ;  but  we  should  hesitate  to  say  that 
if  a  laboring  man  turned  his  wife  away, 
she  being  capable  of  earning,  and  earning 
as  much  as  he  did  ;  or  if  a  man  turned 
his  w'.fe  away,  she  having  a  settlement 
double  his  incomi!  in  amount,  the  wife 
in  such  cases  couid  bind  her  imsband." 
And  see,  per  Lord  Kllenborough,  in  Lidd- 
low  V.  Wilmot,  2  Stark.  86  ;  and  Clifford 
V.  Laton,  3  C.  &  P.  15.  In  Manljy  v. 
Scott,  Sid.  109,  it  is  somewhat  quaintly 
said  :  "  Here  the  question  is,  will  the 
contract  of  .i  wife  for  necessaries  make  her 
husband  liable  ?  For  nobody  will  dispute 
that  usually  the  contracts  of  wives  are 
voit',  as  all  their  power  is  transferred  to 
the  husband  by  their  marriage.  This  is 
founded  on  the  necessity  of  the  thing  ; 
and  our  law  allows  many  persons  who  are 
otherwise  disabled,  in  cases  ot  necessity 
to  enter  into  contracts  ;  as  an  instance, 
it  is  a  general  rule  that  the  contracts  of 


all  infants  are  void,  but,  nevertheless,  in 
cases  of  necessity  their  contract  siiall  bind 
them.  And  that  not  only  quoad  cssr,  sed 
quoad  nccessitalcm  cnnvenientim.  (Peters 
V.  Fleming,  6  M.  &  W.  45  ;  Burgliart  v. 
Hall,  4  M.  &  VV.  727.)  As  our  law  gives 
all  that  the  wife  has  to  her  liusbaiul  on 
marriage,  if  wives  shall  not  be  allowed  to 
obtain  food  and  other  necessaries,  wives 
will  be  in  a  worse  condition  than  those 
who  commit  treason  or  felony,  for  felons 
shall  be  allowed  from  their  goods  reasona- 
ble estovers,  to  save  them  from  starving. 
And  the  statute,  Art.  Cler.,  provides  that 
l)ersons  who  abjure  the  realm  shall  have 
sufficient  estovers  of  their  goods.  13ut 
women  cannot  enjoy  this  privilege  if  they 
can  take  nothing  without  the  permission 
of  the'r  husbands,  but  they  will  be  left  to 
perish,  Tantalus-like,  from  thirst  and  hun- 
ger, amid  the  overHowiiig  exuberance  of 
their  husbands'  plenty." 

2  If  the  master  of  a  ;.hip  contracts  for 
the  necessary  repairs  therefor,  this  binds 
the  owner,  although  in  that  case  the  mas- 
ter was  not  obliged  to  lepair  the  shii).  Yet, 
inasmuch  4s  the  repairs  were  necessary  to 
save  the  ship  from  foundering,  the  law  en- 
ables him  to  bind  the  defendant  by  his 
contract.  Bridgman's  Case,  Hob.  11; 
Manby  v.  Scott,  Si.l.  109. 

*  "  For  when  siie  returned  to  her  hus- 
band ai:d  he  woulii  not  receive  her,  nor  pro- 
vide a  maintenance  for  her,  if  iKibody 
would  trust  her  so  as  to  charge  the  hus- 
band, she  must  starve,  for  she  canuoi; 
earn  her  living  by  her  labor,  for  wliaU'VT 
she  gains  by  her  labor  the  husband  sliall 
have,  and  therefore  of  necessity  she  must 
be  trusted,  and  the  thii-gs  being  neeessim' 
for  her  living,  tlie  husband  ought  to  l* 
charged  for  them  ;  and  the  iiusbanJ's 
prohil)iting  the  plaintiffs  to  trust  Inr, caii- 
not  deprive  her  of  the  liberty  \\]\'w\\  tk 
law  gives  her  for  preservation  of  in'i  HI'': 
for  the  law  for  necessity  ilispeiiscs  «ilh 
things  which  otherwise  are  not  lawful  t' 
be  done,  as  to  throw  down  my  neif^liboi  s 
house  for  preventing  the  sjjreading  nf  lir'' 
to  throw  goods  out  of  a  boat  when  it  is 


PART  III.] 


MARRIED   WOMEN. 


161 


The  law  is  well  established  that  if,  through  the  misconduct  of 
the  liusband,  his  wife  is  driven  from  home,  the  law  presumes  an 
authority  conferred  on  her  as  his  agent  to  contract  for  her  neces- 
sary sustenance,  and  he  is  liable,  even  though  he  may  have  cau- 
tioned tradesmen  not  to  trust  her.  In  Read  v.  Legard,'  it  was 
decided  that  when  a  man  contracis  marriage  with  a  woman,  he 
thereby  becomes,  in  point  of  law,  liable  to  maintain  her ;  and  if 
he  fail  to  do  so,  unless  under  circumstances  which  justify  him, 
she  has  authority  to  pledge  his  credit;  the  true  principle  being 
that  when  a  man  marries,  he  contracts  an  obligation  to  support 
Ills  wife,  and  in  point  of  law  he  gives  her  authority  to  pledge  his 
credit  for  her  support,  if  circumstances  render  it  necessary,  she, 
herself,  not  being  in  fault.  By  the  marriage  contract,  the  parties 
contract  a  relation  which  gives  the  wife  certain  rights  which  the 
law  recognizes.  One  of  them  is  that  the  wife  is  entitled  to  be 
supported  according  to  the  estate  and  condition  of  her  husband. 
If  slie  is  compelled  by  his  misconduct  to  procure  the  necessary 
articles  for  herself,  as,  for  instance,  if  he  drives  her  from  his 
house,  or  brings  improper  persons  into  it,  so  that  no  respectable 
woman  could  live  there,  according  to  the  decided  cases  he  gives 
her  authority  to  pledge  his  credit  for  her  necessary  mainte- 
nance elsewhere ;  which  means  that  the  law  gives  that  authority 
by  force  of  the  relation  of  husband  and  wife.^ 

And  if  a  wife  quits  her  husband's  house  under  a  fair  apprehen- 
sion of  personal  violence,  or  because  he  brought  a  disreputable 


oveiladen,  and  Uie  like."   Manby  v.  Scott, 

1  Li'v.  4.    Closely  analogous  in  principle, 

as lUrivti]  fioiu  the  same  ncccssUy,  is  the 

way  of  necessity,  with  reference  to  which 

it  lias  been  held  that  if  a  way  is  claimed 

and  enjoyed  as  one  of  necessity,  and  the 

way  pii'vimisly  in  use  shall  be  obstructed 

withuiit  the  fault  of  the  owner  of  it,  by 

lliiiid,  li)r  instance,  he  may,  if  necessary, 

Iiass  over  other  lands  of  the  owner  of  the 

.-"il,  doinj;  no  unnecessary  damage  thereby. 

Wash,  on  Kase.,  lit?  ;   Leonard  v.   Leon- 

aid,  2  .Mien,   543  ;    Farnum    v.     I'latt, 

8  I'iek,  :m  ;  Holmes  i;.  Seely,  19  Wend. 

J5n7;  T;iyl..r  v.  Whitehead,  •,:  Doug.  749; 

K'apeis  r.  MeKee,  1   Strobh.  \(iS  ;  Henn's 

I  Case,  W,  Jones,  296.     And  where  a  pub- 

jlic  way  beeoiTu's    impa.ssable,    by    being 

luverllowed  or  out  of  repair,  the   namsih/ 

Iwill  j\i.stily  a  traveller  in  removing  enougli 

ol  tlie  fences  of  the  adjoining  close  to  en- 

ible  liini  to  ))ass  around  the  obstruction, 

piling  no  unnecessary  injurv.     Wash,  on 

"ase.,     V.iQ;    Taylor    v.    Whitehead,     2 

l)oiif,'.  74.1 ;  Campbell  v.  Race,   7  Cush. 

|fS  ;  liiiilard  I'.   Harrison,  4  Mau.  &  S. 

^■;   ibdnies  V.  Seely,    19  Wend.    507; 

ptate  w.  Northumberland.  44  N.  H.  631; 

TOL,  1.  U 


Williams  i'.  Safford,  7  Barb.  309.  In  ■\ 
later  part  of  this  work  {/lost,  Hook  II., 
Part  1 V. )  we  treat  of  ship-masters  as  agents 
of  necessity. 

1  6  Ex.  636. 

'^  Per  Alderson,  R.,  in  Kead  v.  Legard, 
6  Ex.  at  p.  642.  If  the  husband  turns 
his  wife  away,  it  is  not  unreasonable  to 
say  she  has  an  authority  of  neeessity  ;  for 
she  by  law  has  no  property,  and  may  not 
be  able  to  earn  her  living.  Johnston  v. 
Sumner,  3  ^  &  N.  261  ;  Evans  v.  Fisher, 
5  tiilm.  569  ;  Snorer  v.  Blair,  1  Dutch. 
94  ;  Nortor  v.  Hhodes,  18  liarb.  100  ; 
Zeigler  V.  David,  23  Ala.  127  ;  Clement 
V.  Mattison,  3  Kich.  L.  93  ;  Mayhew  v. 
Tliair,  8  (Jrav,  172  ;  Emery  v.  Emery,  I 
V.  &  J.  SOI  ;■  6  Price,  336  ;  Horwood  v. 
Hetfer,  3  Taunt.  421  ;  Baker  v.  Sampson, 
14  C.  B.  N.  s.  383  ;  Williams  v.  Fowler, 
McClel.  &  Y.  269  ;  Turner  v.  Rooks,  10 
A.  &  E.  47  ;  Brown  r.  Ackroyd,  5  El.  & 
Bl.  819  ;  Johnston  v.  Manning,  12  Ir. 
C.  L.  R.  148  ;  Forristall  v.  Lawson,  34 
L.  T.  903  ;  Harris  v.  Morris,  4  Esp.  41 ; 
Harrison  v.  Grady,  12  Jur.  n.  h.  140  ;  13 
L.  T.  369. 


n 


i :  ]  m 


162 


COMMENTARIES  ON  SALES. 


[book  II. 


woman  to  reside  in  it,  that  is  equivalent  to  her  husband's  turning 
her  out  of  doors  ;  ^  as  is  also  the  reasonable  apprehension  on  the 
part  of  a  wife  of  being  placed  under  improper  restraint ;  ^  or  of 
being  actually  restrained  improperly  in  a  madhouse.^ 

If  the  husband  has  turned  the  wife  out  of  doors,  and  does  not 
give  her  adequate  means  of  subsistence,  according  to  his  degree 
in  life  and  his  fortune,  the  law  makes  her  his  agent  to  order  such 
things  as  are  reasonable  and  necessary  for  herself,  but  it  givca  her 
no  liberty  to  go  into  any  extravagance,  or  to  pledge  his  credit  for 
anything  beyond  what  would  be  reasonable  and  necessary  for  her 
sulbslstence.  If  she  be  living  in  open  adultery,  her  husband  is  not 
bound  by  any  contract  which  she  may  make  even  for  necessaries. 
If  the  husband  has  not  turned  the  wife  out  of  doors,  and  they  have 
separated  in  consequence  of  domestic  differences,  and  they  do  not 
live  together,  another  consideration  arises,  which  is  this :  Has  the 
husband  given  the  wife  sufficient  for  necessaries  suitable  to  his  de- 
gree ?  For  if  he  has  he  is  not  liable  for  her  debts,  even  for  neces- 
saries; for  if  the  wife  has  from  her  husband  wherewithal  to 
provide  herself  with  necessaries,  she  cannot  go  as  her  husband's 
agent  and  bind  him  even  for  necessaries.* 

If  a  married  woman  be  living  separate  and  apart  from  her  hus- 
band, it  is  the  duty  of  tradesmen  to  inquire  under  what  circum- 
stances the  separation  took  place,  before  they  part  with  their 
goods ;  and  if  a  tradesman  do  part  with  his  goods  to  a  woman 
living  apart  from  her  husband,  the  onus  lies  on  him  to  prove  that 
the  separation  took  place  under  such  circumstances  as  will  entitle 
him  to  recover  the  price  of  those  goods  against  the  husband.  If 
a  tradesman  will  trust  any  woman  that  comes  into  hi '.  shop,  be 
must  do  so  at  his  peril.^ 

If  a  husband  improperly  compels  his  wife  to  leave  his  house, he 
thereby  gives  her  power  to  pledge  his  credit  for  necessaries ;  but 
if  she  goes  away  without  his  consent  and  against  his  will,  a  trades- 
man giving  her  credit  docs  so  at  his  peril.^ 

Where  the  separation  is  voluntary  on  both  sides,  the  husband  is 
liable  unless  he  has  made  sufficient  provision  for  her  maintonance.' 


»  Houliston  V.  Smyth,  3  Bing.  127. 
'*  Teinpany  v.  Hakewill,  1  F.  &  F.  438. 

*  Houliston  t».  Smyth,  3  Bing.  127. 

*  Per  Ld.  Abinger,  in  Enunett  v.  Nor- 
ton, 8  C.  Jt  P.  506. 

*  Clifford  V.  Laton,  3  C.  &  P.  15.  And 
see  Montague  v.  Espinas.se,  1  C.  k  P.  356; 
Montague  v.  Baron,  5  D.  &  R.  532 ; 
Houliston  v.  Smith,  2  C.  &  P.  22  ;  Mnin- 
Wf.ring  !'.  Leslie,  2  C.  &  P.  507  ;  Hine  ey 
V.  Marquis  of  Westmeath,  6  B.  &  C.  200  ; 
Waithman  v.  Wakefield,  1   Camp.  120 ; 


Metcalfe  t>.  Shaw,  3  Camp.  22  ;  Rentleyr. 
Griffin,  5  Taunt.  356  ;  Etli.iiiit'ion  r. 
Parrott,  Ld.  Kavm.  1006  ;  1  Salk.  IIS. 

•  Hindley  v.  The  Marquis  of  West- 
meath, 6  B.  &  C.  213,  per  Biiytcy,  .1. 

">  Hindley  v.  The  Marquis  of  West- 
meath,  6  B.  &  C.  215  ;  per  I.ittWalf, 
J.  ;  Allen  v.  Aldricks,  9  Foster,  (J3  ;  Fmid 
V.  Eves.  4  Harring.  385  ;  Ciilkiiis  v.  Ung. 
22  Bare.  97 ;  Cary  v,  Pattou,  2  Ashm. 
14U. 


her  lius- 

circum- 

ith  their 

woman 

ove  that 

entitle 

nd.   If 
sliop,he 

!,he 

js ;  but 

a  trades- 

usbandis 
touaucc.' 

;  Uontley^ 

|j,,.ington  r. 

vilk,  US. 

ts  of  ^Vesl• 

l,ittle.l»lf; 

,  03  ;  Ftf<M 

liiis  V.  Un& 

2  Ashiii' 


PART  III.] 


MARRIED  WOMEN. 


163 


One  or  two  of  the  American  cases  intimate  that  the  onus  of 
proof  Is  on  the  husband  to  show  that  he  has  made  such  sufficient 
provision,'  but  we  think  the  law  is  as  stated  in  tlie  English  cases.^ 

And  a  husband  is  not  bound  to  give  notice  to  a  tradesman  with 
whom  lie  has  dealt  lor  ready  money  during  his  cohabitation  with 
jiis  wife,  of  his  separation  from  her,  and  the  consequent  revo- 
cation of  her  ordinary  authority  to  bind  him  by  her  contract 
for  necessaries.  If  he  had  during  the  cohabitation  authorized 
her  to  deal  with  the  tradesman  on  credit,  he  would  have  been 
bound  to  give  notice  of  the  revocation  of  that  authority  on  the 
separation.'' 

And  where  the  wife  is  living  separate  from  her  husband,  and 
he  makes  her  an  adequate  allowance  for  her  support,  he  is  not 
liable  for  her  debts.* 

Where  a  wife  abandons  her  husband  without  just  cause,  he  is 
no  longer  liable  for  her  maintenance  or  for  medicine,  or  medical 
aid  furnished  to  hor.  And  where  a  physician  who  furnished  med- 
icine and  medical  aid  to  a  wife  who  had  previously  abandoned  her 
husband,  afterwards  sues  the  husband  for  such  medicine  and  med- 
ical aid,  it  devolves  upon  the  plaintiff  to  show  affirmatively  that 
the  abandonment  was  for  a  sufficient  cause.^  In  order  to  bind  the 
husband  for  goods  sold  the  wife  after  notice  to  cease  furnishing, 
the  seller  must  show  not  only  that  they  are  necessaries,  but  that 
the  husband  has  failed  to  make  an  adequate  supply.^ 

And  one  who  has  received  into  his  house  a  woman  and  her 
child  who  have  been  forced  to  leave  their  home  through  the  cru- 
elty of  the  woman's  husband,  cannot  recover  from  the  husband 
for  their  maintenance,  if  one  of  his  motives  for  receiving  the 
woman  was  that  he  might  maintain  an  adulterous  intercourse 
with  her.' 


1  Sep  Frost  v.  Willis,  13  Vt.  202  ; 
Rumtii'vc.  Kcvcs,  7N.  H.  571. 

«  See  Mitcfiell  v.  Treanor,  11  Ga.  32/, 
following  the  Kiij^lish  cases,  Holt  v.  liricii, 
4  B.  &  Aid.  252  ;  Montague  v.  ncnotlict, 
3  H.  k  C.  631  ;  Montague  v.  Baron,  5 
D.  &  R.  ri32  ;  Harvey  v.  Norton,  4  Jur. 
42  ;  Fn'c  tone  v.  But<'her,  9  C.  &  1'.  647  ; 
Metcalf',  c.  Shaw,  3  Camp.  22  ;  B>n»'  y  v. 
'■riftiii,  5  Taunt.  3.56.  S.^e  also,  '  iinston 
I'.Sumner.  31I.&N.  261;  E  Iw  ..sv.  Tow- 
els,  6  Seott  X.  R.  641  j  f  M.  &..  G.  624. 

»  Wall  is  V.  Bi.Klick,  12  \V.  R.  76.  See 
Jolly  V.  hi'es,  16  C.  B.  N.  s.  628  ;  Renean 
I'.  Teakle,  8  Ex.  680  ;  Phillii.son  o. 
Hytcr,  L.  R.  6  C.  P.  38  ;  Johnston  v. 
mnwr,  3  II.  &  N.  261. 

•  iliiclrjkinson  v.  Fletcher,  4  Camp.  70  ; 
M»'n  I'.  I'i.k,  3  M.  &  W.  48i  ;  Rawlvns 
"Vandyke,  3  Esp.  260  ;  Roeve  t.  Conyng- 


ham,  2  C.  *  K.  444  ;  Holder  v.  Cape,  2 
-:".  k  K.  437  ;  Biffin  v.  Bignell,  7  H.  &  N. 
f77  ;  Mallaliei.  v.  Lyon,  1  F.  &  F.  431  ; 
Eastland  v.  Hurchell,  3  Q.  B.  D.  290. 

'  Hartniann  v.  Tegart,  12  Kans   177. 

*  BaiT  i>.  Armstrong,  56  Mo.  5. 7. 

'  Alniy  V.  Wilcox,  110  Mass.  443. 

AVith  the  exception  stated  above,  where 
some  of  the  American  cases  (im])roperly 
we  think)  place  the  burden  on  the  hus- 
band of  showing  that  he  has  provided 
necessaries  for  his  wife,  who  has  left  him 
without  her  fault,  and  is  living  separate 
from  him ;  the  mass  of  the  cases  in  this 
country  are  in  perfect  accord  with  tiiose 
in  England  on  the  subject  of  the  hus- 
band's liabilities  for  the  wife's  oontracta 
for  necessaries  under  such  circumstances. 
We  examine  some  additional  ca.<es.  Tims 
in  Billing «;.  Fl'cher,  7  B.  Hon.  (Ky.)  458, 


I. 


}■  -■> 


164 


COMMENTARIES   ON   SALES. 


[book  II. 


There  is  a  case  in  the  Supreme  Court  of  the  Province  of  New 
Brunswick  ^  on  the  question  of  a  married  woman  as  an  "  agent  of 


Marshall,  C.  J.,  of  the  Kentucky  Court  of 
Appeals,  well  lays  down  the  law.  This 
was  a  case  where  a  niai'ried  woinau 
commenced  proceedings  for  a  divorce, 
which,  after  bill  and  answei  tiled,  were 
stayed,  at  her  instance,  on  bciiifj  recon- 
ciled to  her  husband.  An  action  was 
brought  against  the  husband  by  the  wife's 
attoriioy,  for  the  expenses  in  hling  the 
bill.  The  defendant  proved  tiuit  his  wife 
liad  no  cause  for  bringing  the  suit.  Under 
the  directions  of  the  .judgi?  of  tiie  Circuit 
Court,  that  if  the  bill  was  tiled  in  good 
faith  on  the  wile's  representations,  tlie 
plaintiff  was  entitled  to  recover  against 
the  husband,  the  jury  found  for  the  i)laiu- 
tiir.  On  error,  tlie  juilgnieiit  Iwlow  was 
reversed.  The  law,  as  laid  down  by  Chief 
Justice  Marshall,  is  applicable  to  the 
whole  subjuet.  He  says  :  "  It  is  well  set- 
tled that  a  wife  who  is  wrongfully  turned 
out  of  doors  by  her  husband,  or  from  ill 
treatment  is ol)liged,  by  a  regard  to  her  own 
.safety,  to  leave  his  house,  carries  with  her 
an  implied  credit,  ot  an  implied  authority 
to  charge  him  for  necessaries,  which,  as  a 
wrong-doer,  he  shall  not  be  ])ermitted  to 
repel.  The  ]irinciple  is,  that  Ijcing  bound 
to  support  and  protect  his  wife,  he  cannot 
relieve  hitnself  from  this  obligation  by  his 
own  wrongful  act ;  but  that  if  by  his  own 
improper  conduct  towards  her,  he  drives 
lier  to  seek  support  and  protection  from 
others,  or  justilies  her  in  so  doing,  the  law, 
still  holding  him  to  his  duty  under  the 
new  circumstances  which  ho  has  brought 
about,  implies  an  authority  from  him  to 
any  one  who  may  furnish  at  his  charge 
the  necessary  supplies  or  assistance,  or  an 
authority  from  him  to  his  wife  to  ])rocure 
them  upon  his  cn^dit.  But  the  essential 
basis  of  this  implication  is  that  the  bus- 
band  shall  have  wrongfully  i)rodueed,  or 
shall  at  le;ust  have  assimted  to  the  .st:pa- 
ration  which  has  rendered  it  necessary 
that  the  wife  should  receive  from  others 
the  supplies  or  assistance  which  are  essen- 
tial to  her  support  or  jirotection.  Hence 
it  is  laid  down  that  if  a  tru  lesman  deal 
with  a  wife  sc[)arated  from  her  imsband, 
it  is  incuml)cut  on  him  to  make  in- 
quiry ;  that  he  trusts  her  at  his  peril,  and 
that,  if  he  would  make  the  husband  re- 
sponsible for  the  articles  furnished,  he 
must  prove  that  the  separation  occurred 
under  such  circumstances  as  will  render 
the  husband  primd  facie  li.ible.  The  same 
principles  apply  to  the  case  of  legal  assist- 
ance furnished  to  the  wife.  If  the  con- 
duct of  the  husband  towai-ds  her  makes  it 


ecessary   that  she  should  apjjly  to  tlw 
law  for  securing  either  i)rotectiun  oi  sup- 
port, or  if  it  be  such  as  justifies  litr  in  so 
doing,  the  husband  will  be  chargciililV  lor 
the  expenses  thus  rendered   neccs.ian  In 
his  own  im|>roiier  conduct.    We  liavi-  sciii 
no  case  and  perceive  no  sound  ]iiiii(i|ilH 
which  sanctions  the  iloctrine  that  tlic  mi 
thority  of  the  wife  to  bind  her  liii>liaii.i, 
or  the  rights  of  others  who  deal  w  itii  lur 
or  render  assistance,   to  charge;  her  Inis 
band,   may   be  established   either   by  tlio 
mere   rei)resentations  of   the  wife,  ')r  bv 
the  credit  which  those  representations  iniiy 
gain  with  the  i>ersons  to  wIkmh  .slie  ap. 
peals.     The  authority  rests  not  upon  tlie 
representations  ol  the  wife,  nor  ii]k)ii  the 
credit  given  to  them,  but  upon  the  ovi- 
dence  of  the   facts  upon   which   the  law 
gives  the  authority.     In  case  of  s.'pura- 
tion,  good  faith  renuires  that  thoso  who 
deal  with  the  wife,   intending  to  chaise 
the  husband,  should   iiKiuire  t'nnn  otlier 
sources,   whether  the   circumstances  will 
authorize   them   to  charge   iiiiii.     Ami  if 
they  trust  to  the  mere  representations  of 
the  wife,  they  do  it  at  their  peril."    See 
Shepherd  v.  McKone,  3  Camp.  32<J.    Ami 
where  the  husband  consents  to  his  wile 
living  apart  from  him,  he  is  as  lialilo  for 
necessaries  furnished  her,  on  his  cicilit,  as 
though  thev  were  living  togetlicr.     Frost 
V.  Willis,   13  Vt.   202.     And   in  Hall  p. 
Weir,    83    Mass.    261,    it  was   held  that 
where    the    husband,   without   le;,'al  anJ 
sufficient  cause,  deserts  his  wife  and  fur- 
nishes no  adoijuate  means  for  her  support, 
the  wife  has  an  implied  authoiity  tit'iiveJ 
from  the    legal   duty  of  the  liiisliatu!  to 
make  suitable  provision   for  her  ami  her 
children,  to  act  as  his  agent,  imhI  iirooiiie 
such   supplies   as  might    be  nn  >  -.^aiv  on 
his  credit  ;  and  the  rpi-'slion  as  to  wlnther 
the  articles  sold  and  dc  'vercd  are  such  a* 
iire  actually   necessary   and  propor  uinli'r 
the  circumstances  of  the  particular  cas)', 
is  properly  left  to  the  jury.     And  wiifr*- 
the  defendant's  wife  left  hiiii,  and  niitaiiieii 
a  divorce  from  him  for  cruelty,  a  suit  for 
her  board  down  to  the  time  of  olitainiii; 
the   decree,    was   sustained  ai;aiiist  liiiti. 
Hancock  v.  Merrick,  64  Mass.  41. 

So,  if  the  husband  introduces  a  woniii: 
of  profligaie  habits  into  his  honsi-,  an! 
permits  her  to  remain  there  as  aii  in- 
mate, his  wife  will  be  justified  in  with- 
drawing from  his  protection,  and  he  m" 
be  liable  for  necessaries  furnislu'd  her 
The  law  requires  the  husband  to  sup- 
ply his  wife  with  necessaries,  such  as  meat, 


»  Bennett  v.  Jones,  4  Allen,  N.  B.  R.  397. 


PART  III.] 


MARRIED  WOMEN. 


165 


necessity,"  which  is  of  sufficient  value  to  justify  very  full  reference 
to  it.    It  is  a  case  where  the  defendant  turned  away  his  wife  with- 


iliiiik,  clotlifs,  iiicdicines,  etc.,  suitable  to 
lii,,  lif^'ive  iiinl  ciivuiiistauces ;  iiiul  if  ho 
hv  his  trcatiui'iit  sliall  rciuler  hi-r  sitiiu- 
tidii  iinsal'i',  or  tliuir  lioinc  unlit  for  a 
iiunli'st  ami  cliiiste  woiiiuu  to  remain  in, 
111'  si'iiils  licr  from  liomu  as  olfectually  as 
if  111-  tiinu'J  her  out  of  iluors  without 
luiiso,  aiul  uiuli'r  such  circumstnnct's  he 
(.'ivcs  liiT  a  general  credit  for  ncct'ssaries, 
lor  wliii  li  lie  will  he  liable  to  any  one  fur- 
iiisliiii^'  them.  De.scelles  i:  Kailmus,  8 
luwa,  ;'>1.  In  Mott  v.  Conistock,  8  Wend. 
544,  the  (leliiiilant,  who  was  liviu};  anart 
troiu  his  wile,  claimed  that  he  supplied 
liis  wile  with  necessaries  suitable  to  her 
cuiiilitioii  ;  and  the  court  held,  that  as  ho 
|iiulV.>seil  to  imividc  for  her,  it  was  ineum- 
heiit  iii"iii  a  jiarty  who  had  been  exi)ressly 
fiirliiilileii  to  i;ive  credit  to  a  wife,  in  order 
to  riiuhr  tlit^  husband  liable  for  subse- 
i|iaiit  supplies,  to  show  allirniatively  and 
iliaily  that  the  husband  did  not  supply 
luT  with  necessaries  suitable  to  her  condi- 
tion. Kdf  cases  where,  under  the  appli- 
latioii  ol  these  and  analoj;ous  ])rineiples, 
tik'  hiisliaud  has  been  liable,  and  not  lia- 
ble, le.speilively,  under  the  circumstances, 
for  necessaries  furnished  his  wife  living 
aiiait  limn  him,  see  Wrav  i'.  t.'ox,  24  Ala. 
337;  Black  v.  Bryan,  18  Tex.  453,  Ferren 
V.  M'KMv,  :>!•  X.  H.  106  ;  iMinck  v.  Mar- 
tin, ;'>4  N.  V.  Il5t) ;  Lord  v.  Thompson,  41 
N.  V.  Sni)ei.  Ct.  11.");  .Svkes  v.  Hal.stead, 

1  Sandl.  4>;i:  Eiler  v.  Cmll.  99  Ind.  375; 
^V,Ukins  i:  l)e  Annond,  89  Ind.  553;  Lit- 
son  r.  r.iowii,  26  Ind.  489;  Loekwood  v. 
Thomas,  I'J  Johns.  348;  Horner  v.  Lewis, 
li'  .iohns.  38  ;  Shelthan  V.  (iref^ory,  2 
Wen.l.  4'J'J  ;  Tebbets  i'.  Haj.good,  34 
N.  H.  4'Ju;  Pidjjin  v.  Cram,  8  N.  H.  351; 
All.n  V.  Ahliich,  9  Fost.  73  ;  Kiitherford 
I'.  Cuxe,  11  Mo.  347;  Cany  v.  I'atton,  '2 
A>hni  (I'a.)  1|0;  Heed  v.  Heed,  52  Mich. 
117;  Collins  I-.  Mitchell,  5  Harr.  (Del.) 
3tii';  Kemp  V.  Downham,  [b.  417;  Hall  y. 
I'aviil,  'io  Ala.  127;  Sturtevant  v.  .Starin, 
I'.i  Wi.s.  21)8;  Brown  v.  Patton,  3  Humph. 
nVnn,)  l;J5;  I'orter  i\  Bobb,  25  Mo.  36; 
Haislmwc.  .Merrvman,  18  Mo.  118;  Fredd 
».  Kves,  4  llarr.  385;  Kimball  c.  Keyes,  11 
^\l■n(l.  .34.    .S'c  also  Mainwarint{  V.  Leslie, 

2  C.  .^  1'.  507;  Hindley  v.  Westmcath,  6 
li.  &C.  200.  But  see  Uuinney  v.  Keyes, 
"  N.  H.  .'.71,  wliere,  contrary  to  the  gen- 
«n\  1  nhliiijT,  ;uid  to  wiiat  wo  think  is  the 
law  ii,  the  case,  it  was  held  that  proof  of 
the  n  nrrinse,  and  that  the  articles  were 
iii'cissiiies  suitable  to  the  condition  of  the 
husl.iinil  in  lif,.^  }»  primd  facie  evidence  of 
tile  hnsliiind's  liability,  and  it  rests  upon 
him  til  rebut  the  presumption  in  law  aris- 
ing from  the  obli.'ation  of  such  relation 


and  expenditures.  This  is  ordinarily  the 
law  when  a  wife  is  living  with  lier  hus- 
band. But  when  she  is  living  separate 
from  him,  a  dill'erent  rule  applies;  and,  in 
accordance  with  the  English  and  the  mass 
of  the  American  a\itliorities,  we  think  that 
any  one  trusting  the  wife  does  .so  "at  his 
own  jieril,"  anil  that  the  burden  ol  jjroof 
is  east  on  him  ti>  show  both  the  non-lault 
of  the  wife  in  leaving  her  husband,  and 
that  the  articles  supplied  her  art'  nrces- 
snrii'fi,  to  the  full  extent  of  their  being 
suitable  as  to  degree,  and  as  to  their  not 
being  supplied  by  the  husband. 

The  rule  at  common  law  is,  that  where  the 
husbaiul  abandons  the  wife  and  leaves  the 
country,  or  where  he  is  banished,  even  for  a 
limited  time,  the  disabilities  of  coverture 
under  which  the  wife  labors  are  so  far  re- 
moved as  to  enable  her  to  lie  contracted 
with,  to  sue  and  be  sued,  and  to  ac(piire, 
liold,  and  dispo.se  of  jiroperty.  Gregory  v. 
Paul,  15  Ma.ss.  32;  Starrett  v.  Wynn,'  17 
S.  &  H.  132.  Un  th(!  principle  ol  tliese 
cases,  it  has  Ix'on  held  in  Texas  that  when 
the  husband  abandons  the  wile  and  fails  to 
provide  for  the  family,  this  authorizes  the 
wife  to  manage,  control,  ami  dispo.se  of 
the  comuion  property,  so  as  to  secure  a 
su]i[iort  loi'  herself  anil  children,  lleiden- 
hemer  v.  Thomas,  5  Tex.  Law  llev.  205  ; 
Fullerton  v.  Doyle,  18  Ti-x.  13;  Cheek  v. 
ilellows,  17  Tex.  613;  Wright  v.  Hays, 
10  Tex.  130.  And  the  conviction,  sen- 
tence, and  confinement  of  the  husband  in 
the  'cnitentiary,  rendering  it  impo.ssible 
for  li.ni  to  manage  and  control  tlii>  com- 
mon p.-operty,  or  to  aid  in  supporting  his 
wifj  :;!!'!  children,  is  eiiuivab.  nt  to  and  is 
enisidered  .such  an  nbandonnient  of  his 
wife  as  would  authorize  her  to  manage, 
control,  and  dispone  ol  the  common  prop- 
ertv  in  securing  a  support  for  herself  and 
chi'ldren.     Slater  v.  Neal,  64  Tex.  222. 

As  the  decisions,  both  Fnglish  and 
American,  are  virtually  uniform,  that, 
where  a  married  woman  is  living  separate 
and  apart  from  her  husliand,  parties  suji- 
])lying  her  even  with  necessaries  do  so  at 
their  peiil,  a^;'  can  only  hold  the  husbip;id 
for  the  i)riee  )f  Mich  necessaries  when  the 
wife  is  not  in  fau't,  and  when  the  hus- 
band has  not  himself  supplied  the  neces- 
saries, there  would  .seem  to  be  no  fiue.tion 
that  the  onus  jirohnndi  on  both  tin  .•<o 
points  —  namely,  the  non-fault  of  the 
wife,  and  the  non-supply  of  the  necessa- 
ries by  the  husband  —  is  on  the  jiarty 
supplying  the  gooils.  The  very  fact  tbat 
ho  can  only  recover  for  nece.s.saries  wotild 
cover  the  latter  point,  which  is  the  one 
controverted,  as   we   have  intimated,   by 


!   t! 


m  I  ■ 


x«  ■!., 


166 


COMMENTARIES   ON   SALES. 


[book  n. 


out  cause,  and  afterwards  offered  to  take  her  back  and  provide 
for  her,  but  she  refused  to  return,  Tlie  jury  were  directed  that 
this  offer  did  not  relieve  the  defendant  from  liability  to  a  third 
person  who  had  afterwards  supplied  the  wife  with  necessaries. 
This  was  held  by  the  majority  of  the  court  (with  which  holding  we 
entirely  concur)  a  misdirection ;  and  that  the  question  for  the  jury 
should  have  been,  whether  the  defendant  made  a  bond  fide  request 
to  his  wife  to  return,  and  if  so,  whether  she  had  refused  oa  a 
well-grounded  belief  that  his  ill  treatment  of  her  would  bo  re- 
newed. And,  semhle,  that  the  liability  of  the  husband  depends 
upon  the  implied  authority,  in  such  a  case,  of  the  wife  as  his  agent 
from  necessity,  to  bind  him ;  and  that  when,  in  such  a  case,  the 
necessity  ceases,  her  right  to  bind  him  ceases  also. 

We  consider  the  question  of  sufficient  importance  to  warrant  us 
in  setting  out  the  judgment  of  the  majority  of  the  court  in  full ;  as 
we  think,  notwithstanding  the  generally  incorrect  doctrine  of  the 
text-books  on  the  subject,  the  judgment  is  so  unquestionably  sound 
as  to  admit  of  no  doubt  whatever  of  the  correctness  of  the  general 
doctrine  which  it  sustains.  The  judgment  is  that  of  Ritchie,  J., 
concurred  in  by  two  of  the  other  three  judges  of  the  court.^ 


one  or  two  of  the  American  cases.  See 
Ruiniiey  v.  Keyes,  7  N.  H.  571,  and,  not 
so  distinctly,  Frost  v.  Willis,  13  Vt.  202. 
But  all  the  English  and  nearly  all  the 
American  cases  (see  the  English  cases 
cited  in  this  note  on  the  ))oint ;  and, 
among  the  American  cases  cited  in  this 
note,  see  Mitchell  v.  Treanor,  11  Ga. 
324 ;  BaiT  v.  Armstrong,  56  Mo.  577; 
Hartmann  v.  Tegart,  12  Kans.  177;  atid 
the  cases  cited  Ibid.,  182)  support  the 
view  we  have  taken  ;  and  we  see  nothing 
in  the  one  or  two  exce|itional  American 
cases  to  which  we  iiave  referred  to  cause 
us  to  (piestion  its  correctness.  Like  any 
other  case  of  agency,  the  facts  constitut- 
ing the  party  (wife  in  this  case)  the  agent 
must  be  shown.  And  as  the  wife  sepa- 
rateil  from  lier  husband  does  not,  primd 
facie,  carry  this  agency  with  her,  the  only 
way  that  it  can  be  shown  is  by  proving 
all  the  facts  necessary  to  constitute  it ; 
these  being  the  two,  as  above  stated.  To 
the  objection  that  this  jilaces  on  the  plain- 
tiir  the  burden  of  proving  a  negative,  the 
answer  is  (1),  that  he  supplies  the  neces- 
saries at  his  peril,  and  can  only  recover 
for  the  goods  by  showing  that  they  are 
nec(!ssaries,  which  involves  the  proof  of 
both  of  the  facts  named;  and  (2)  there  is 
no  greater  burden  placed  on  him  tlian 
there  is,  for  instance,  in  an  action  for 
malicious  arrest,  where  the  plaintitf  must 
not  only  prove  the  malice,  but  tiie  negative 
involved  iu  the  action,  —  that  the  arrest 


was  without  reasonable  and  probable  cause, 
In  many  cases  that  arise  the  (lut'stion  is 
an  important  one,  which  is  our  reason  for 
dwelling  on  it  thus  fully. 

•  "  1  think,"  says  lUtchie,  .1.,  deliver- 
ing the  judgment  of  the  majority  of  the 
court,  "  there  is  a  fallacy  in  *he  pluiiitiirs 
argument,  anil  in  the  decision  on  which  lie 
mainly  relies,  viz.,  pjinery  v.  Emery,  1 
Y.  &  tF.  506  (I  shall  hereafter  more  piir- 
tinularly  refer  to  this  case)  ;  and  that  It 
arises  from  mixing  up  the  jurisdictum  of 
the  spiritual  court  with  the  consideration 
of  tiie  ease  in  this  court,  whii  li,  with 
great  deference,  I  think  will  be  foiunl.on 
a  careful  consideration  of  the  prinoipli's 
which  should  govern  the  case,  to  liuvt  no 
bearing  whatever;  that  it  is  simply  gov- 
erned by  the  principles  of  the  eomiuon 
law,  and  is  matter  of  contract,  with  wliich 
this  court  is  specially  comiieteiit,  ami  is 
now  called  ujmn,  to  deal,  withmit  relVr- 
ence  to  the  peculiar  jurisdiction,  ijrin- 
ciph's,  or  modes  of  proceeding  of  the 
spiiitual  or  any  other  court.  My  p.i'p- 
sition  is,  that  the  right  to  maintain  tliis 
action  is  not  based  on,  or  affected  by,  what 
a  spiritual  court  might  or  might  not  do,  if 
a  case  for  restitution  of  conjugal  rights 
between  the  husband  and  wife  was  hifoie 
it,  though  growing  out  of  the  same  cir- 
cumstances ;  but  on  a  contract  between 
the  plaintiff  and  the  defendant,  inaile  hy 
the  wife  on  behalf  of  the  husliaml,  hv 
virtue  of  an  authority  in  law,  whereby  she 


PART  III.] 


MARRIED  WOMEN. 


167 


The  case  of  Tcmpany  v  Ilakewill,*  although  it  ia  not  clear  that 
the  case  itself  is  quite  as  wide  aa  authority  as  it  is  «iuotcd  for  by 


is  aiitliorizod  from  necessity  to  contract 
oil  liiT  liu.sbiimrs  behiilf.  The  priuciples 
wliii  li  govern  actions  of  tins  kind  are 
clfiuly  enunciated  in  the  cast!  of  Johnston 
V.  Sumner,  4  Jiir.  N.  8.  4G2  ;  3  II.  &  N. 
2t)l,  in  wliich  Pollock,  C.  B.,  delivering 
till' jiulh'inent  of  the  court,  sa^a  :  'On  tlio 
lin-sciit  ocnision  we  have  not  to  interpret 
a  IKwitivf  liuv,  but  to  ascertain  the  princi- 
|ili'  on  wliii'li  a  husband  has  boon  held  lia- 
ble lor  i^omis  furnished  to  his  wife,  and 
see  limv  liir,  or  whether  at  all,  it  applies 
to  tills  case.  The  principle  seems  to  bo 
iiu'ivly  tiiat  of  af^ency  ;  the  wife  is  spoken 
of  as  "the  husband's  agent,  as  having  his 
authority  ;  and  the  declaration  is  as  upon 
It  contract  by  him  thnmgh  his  wife  as  an 
agent.  Tlie  (lUestion  to  be  resolved,  then, 
is,  iiail  the  wife  authority  to  pledge  the 
IuisImikI's  credit ! '  The  very  question 
k'l'oie  us  in  tills  ca.se.  After  remarking 
that  that  authority  may  be  express,  im- 
nlieil,  or  froiii  necessity,  the  learned  chief 
baron  proceeds  ;  '  If  the  husband  turns 
his  wife  away,  it  is  not  unreasonable  to 
say  she  had  an  authority  of  necessity  ;  for 
she  by  law  has  no  jiroperty,  and  may  not 
be  able  to  earn  her  living  ;  but  wo  should 
iiesitate  to  say  that  if  a  laboring  man 
turiKil  his  wife  away,  she  being  capable  of 
eaniini;,  and  earning  as  much  as  he  did,  or 
if  a  man  turned  ids  wife  away,  she  having 
a  M'ttb'ment  double  his  income  in  amount, 
the  wile  in  such  cases  could  bind  the  bus- 
baiiil.'  And,  again :  '  The  burden  of 
proof  is  on  the  person  who  has  trusted  the 
wile.  .  .  .  We  think  an  authority  must 
be  siiown,  and  shown  in  one  or  other  of 
the  ways  we  have  mentioned.  This  rule 
puts  the  Imrthen  of  proof  on  the  rijght 
person.  It  gives  the  hu.sband  that  to 
whiuli  he  is  fairly  entitled,  viz.,  to  have 
the  .lutlwritv  .lihrmatively  shown  ;  con.se- 
(|ueiitly  involving  the  showing  of  the 
wile's  wants,  including  her  allowance  or 
other  means.  .  .  .  We  think,  tlieref(n-e, 
authority  must  be  shown  in  all  cases 
while  the  liusliand  is  sought  to  be  made 
liaiile  lor  his  wife.'  If,  then,  the  prin- 
ciple involved  is  nothing  more  nor  less 
than  simple  agency,  and  such  agency  con- 
stituteil,  in  a  case  like  the  present,  by 
necessity  alone,  if  you  remove  the  neces- 
sity, is  not  the  authority  and  agency  like- 
wise removed  ?  Must  there  not,  to  sustain 
a  continuing  agency,  be  a  continuing 
necessity  ?  When  the  necessity  ceases, 
what  supports  the  authority  ?  If  in  this 
ca.se  the  husband  did  wrong  (as  most  cer- 
tainly lie  did)  and  turned  the  wife  out  of 


doors,  and  thereby,  of  necessity,  clothed 
her  with  authority  to  contract  in  his 
name,  because  he  sent  her  abroad  without 
the  mean.s  of  supfiort,  is  there  no  locus 
vcenilentia:  for  him  ?  Is  it,  as  between 
nim  and  the  plaintiff  or  person  sup[ilving 
the  wife,  an  authority  at  law  irrevocaldo  f 
I  can  Knd  no  principle  to  sustain  such 
a  doctrine.  The  present  was  certainly 
a  very  premeilitated,  gross  case  of  mis- 
conduct on  the  part  of  Uie  husband.  B;<t 
try  the  {irinciple  out  on  a  case  not  aggra- 
vated in  its  circumstances.  Take  the  case 
of  a  man  with  several  young  children, 
who,  in  a  moment  of  irritation,  produced 
perhaps  by  tantalizing  conduct  on  the  riart 
of  the  wife,  closes  his  door  against  ner, 
but  without  any  circumstances  of  inde- 
cency or  jiersonal  violence,  and  thereby, 
of  necessity,  gives  her  the  authority 
spoken   of.     In  a  few  weeks,  heartily  re- 

i tenting  of  his  misconduct,  he  tenders  her 
071(1  fide,  expressions  of  deep  contrition, 
with  a  full  aiiology  and  kind  invitation  to 
return  to  her  family  and  to  his  bed  and 
board,  where  ample  provision  would  be 
found  for  her  comfort  and  support.  She, 
ill-advised  (iierhaps  by  the  very  per.si)n 
seeking  to  charge  the  husband  with  tlm 
board,  and  whose  interest  it  was  to  keep 
them  separate),  refuses.  After  such  an 
otfer,  the  bo)M  fides  of  which  could  not  Iw 
doubted,  could  any  one  say  she  remained 
from  necessity  apart  from  her  husband, 
and  that  he  bad  not  provided  rea.sonuble 
and  proper  means,  in  a  proper  place,  for 
her  maintenance  ?  The  (piestion  being 
one  of  authority,  would  the  creilitor 
showing  these  facts  have  made  out  atlirm- 
atively,  in  the  concluding  language  of 
C.  B.  Pollock,  in  Johnston  u.  Sumner 
(siijtra),  'that  the  wife,  living  separate, 
did  so  under  circumstances  from  which  an 
authority  might  be  implied  ; '  and  this  in 
face  of  the  fact  that  she  could  at  any  mo- 
ment have  returned  to  her  home,  and 
ouglit  to  have  done  so  ?  Take  what  may 
jierhaps  be  considered  as  the  converse  of 
this  case.  The  wife  leaves  her  husband 
of  her  own  accord,  without  reasonable 
cau.se.  Having  no  authority,  she  could 
enter  into  no  contract  to  bind  her  hus- 
band. After  a  time  she  offers  to  return, 
but  the  husband  rcjfuses  to  receive  her. 
It  seems  a.ssunied  in  the  ca.ses  that  from 
the  time  of  such  refusal  a  liability  arises. 
Chief  Justice  Kaymond,  in  t'hild  v. 
Hardyman,  2  Str.  875,  says:  'If  a  wo- 
man elopes  from  her  husband,  though  she 
does  not  go  away  with  an  adulterer,  or  in 


»  1  F  &  F.  438. 


.  '^'It 


r  ' 

t! 


:^i 


li  t 


1G8 


COMMENTARIES  ON   SALES. 


[book  II. 


Ritchie,  J.,  in  Bennett  v.  Jones,*  is,  although  a  niisi  prim  case, 
worthy  of  being  set  out  fully  in  this  connection.     It  was  an  action 


: 


¥ 


j  '< 


r 


an  adulterous  rnuiiiur,  tlin  tmili'smnn 
trusts  \u'v  ut  his  pt'iil,  luid  tliu  liusbaiul  is 
not  bound.  Indeed,  if  lie  rt'tust-.s  to  ro- 
ucive  liur  ngiiin,  from  thnt  tinu;  it  nmy  bu 
an  answer  to  tlin  eloiKMni'iit.'  CImni'idlor 
Kisnt,  in  the  scicond  voluniu  of  liis  Corn- 
mentiuins,  i).  147,  tjuotinj;  tlieso  words, 
miys  :  '  Lord  Eldon  Hulwcribiid  to  tiiiitcase, 
and  the  siinio  doctrinn  has  noun  declared 
in  Now  York.'  Ho  citos  Mo(iahay  o.  Wil- 
liams, 12  Joiins.  '21)3,  and  Mu( 'utehL-n  i;. 
McGahiiy,  11  Joinis.  281.  If  tliis  is  so, 
what  becoini's  of  the  case  of  Emery  v. 
Emery  >.  Why  wouhl  not  the  principles 
of  that  case  e(iually  apply  ?  Why  should 
not  the  husband  be  pennitted  to  say,—  as 
the  leavinj;  was  the  wife's  own  wronfjful 
act,  —  no  lei^al  oblijjation  o.xists  at  law, 
till  she  obtains  a  restitution  of  eonjugal 
rights  by  a  decision  of  a  spiritual  court  I 

"  The  lirst  duly  of  a  husband  is  to  i)ro- 
vide  for  his  wife,  in  his  family.  While 
willing  to  provide  her  a  lumie  and  all 
reasonablo  necessaries  there,  1  cannot 
understand  on  what  princi])le  he  is  bound 
to  furnish  thern  el.sewhere.  When  he 
turns  her  out  without  a  cause,  he  does  so 
wrongfully,  and  clothes  her  with  author- 
ity. When  he  opens  his  door  to  her, 
makes  provision  for  her,  and  re<iuest3  her 
to  return  to  he  home  and  family,  and 
she,  having  no  fear  of  ill-treatment  or 
want  of  care,  refuses  to  enter,  does  she  not 
then  become  the  wrong-doer  ?  Is  she  not 
then  living  apart  from  her  husband,  with- 
out compulsion  ;  without  fear  ;  without 
his  consent,  and,  consequently,  without 
cause  '<  And  if  so,  is  not  her  conduct  in 
direct  violation  of  her  marriage  vow  ? 
And  is  not  her  remaining  away  under  such 
circumstances,  not  only  contrary  to  her 
duty,  hut  tantamount  to  a  voluntary  de- 
parture I  And  upon  such  facts  being 
Drought  to  the  notice  of  a  third  person, 
on  nppli(vition  by  her  for  assistance  on  her 
hn8ban<rs  credit,  instead  of  supplying 
her  with  necessaries  at  his  expense,  and 
thereby  practically  encouraging  l-.cr  to 
continue  apart  from  her  family,  should 
not  his  rejjly  Ix;,  —  'I  can't  make  you 
the  advances  you  ask  on  your  husband's 
credit.  You  have  not  his  authority,  be- 
cause you  are  really  not  in  want,  he 
having  made  proper  provision  for  you  in 
the  proper  place  ;  there  being  no  impedi- 
ment to  your  return  to  your  own  home, 
but  your  own  obstinacy  or  self-will,  and, 
therefore,  no  necessity  to  create  an  ag>mcy?' 
Or,  in  the  language  of  Bac.  Ab.  Vol.  i., 
p.  721,  —  'As  the  husband's  liability  is 


grounded  on  an  implied  authority  to  the 
wife  to  contract  the  debt,  it  is  rciiiiivtd 
when  the  circumstances  rebut  the  pie- 
sumption  of  such  an  authority.'  Or,  jf 
lie  cliiposes  to  take  the  contraiy  ctmisc 
and  niiike  her  advances,  ouglit  he  tint  to 
do  so  at  his  ])eril  i  And  who,  I  tliinkit 
may  be  fairlj'asked,  is  injured  or  ii;.'^iiiveil 
by  such  a  view  of  the  legal  rij,'lils  uiui 
duties  of  the  parties,  or  what  prinri|ilM 
does  it  impugn  ?  Ou  the  other  liaml,  U 
not  the  contrary  at  variance  with  a  well. 
recognized  principle  of  pulilic  pulley  piv- 
erning  the  marriage  contract  ;  ami  it'  it 
does  not  directly  infringe  the  Divine  rdni- 
nianil  against  putting  asunder  those  wIkhu 
(iod  hatli  joined  together,  does  It  not  in- 
directly do  s ,  by  assisting  to  keep  liiem 
asunder  ?  Is  it  not  discouraging;,  iiitlur 
than  encouraging,  a  re-union  !  is  It  not, 
in  fact,  establishing  a  divorce  a  iniiinil  d 
thoro,  which  has  never  been  proniiinncil, 
and  which  a  court  of  law  has  no  imwerto 
grant'  We  find  it  well  establlsheil,  that 
though  the  law  allows  provlsinn  to  be 
made  for  a  sep.iration  already  deteiiiiiin'il 
on,  it  will  not  sanction  any,  the  must 
solemn,  agreement,  the  effect  of  whiih  ii 
to  provide  for  the  contingency  of  a  I'litiire 
se)mration  ai  the  pleasure  of  the  pintiis  \ 
Why  ?  %'ciw  0  this  has  a  tcnileiit  y  to 
promote  that  ■  vent,  contrary  to  the  poliev 
of  the  law.'  2  Steph.  Com.  310  :  Dnrint 
V.  Titlev,  7  Price,  577  ;  Hin.llev  v.  Mar- 
quis of  Westinenth,  6  B.  &  C.  2i')(). 

"These  impressions  have  not  been  adojited 
without  a  careful  consideration  of  the  ease 
of  Emery  ».  Kmery,  1  Y.  &  .1.  r>01,— an 
authority  certainly  opposed  to  the  views 
now  expressed, —  an  authority,  in  llscK, 
to  my  mind,  very  un.satisfactovy.  It  was 
really  only  the  decision  of  two  jiidijes  out 
of  four  ;  the  chief  baron  not  coneiiniiiR 
in  it,  and,  though  he  had  not  sullieiently 
investigated  the  case  to  give  a  iliivrtly 
contrary  deci.sion,he  expressed  such  ilouhis 
as,  1  think,  show  that,  though  lie  w;is 
unable  fully  to  make  u)>  his  mlinl,  liis 
impressions  were  against  the  jmlu'ineut 
delivered.  The  fourth  judge  ( Vaiii;h;iii, 
B.)  did  not  hear  the  argument,  and,  on 
that  account,  though  expressing  the  strong 
impression  on  his  mind  In  favoi'  of  the 
decision,  abstained  from  entering  into  the 
grounds  upon  which  that  opinion  was 
formed.  Barons  Garrow  and  Hullook, 
who  decided  the  cau.se,  do  not  appear  to 
treat  the  question  as  one  of  contraet  at 
all,  but,  rather,  as  a  (|ue.stion  ot  jinisdio- 
tion  between  the  spiritual  and  cuiiimon- 


1  4  Allen,  N.  B.  B.  p.  397.     Ree  post,  p.  169  n. 


PART   III.] 


MARRIED   WOMEN. 


169 


for  board  nnd  lodging  8upj)lied  to  the  defendant's  wife  in  June, 
1858.    Tiie  pleas  were  never  indebted,  and  an  order  for  protection 


law  cmirtH.  Hat  1  can  sec  no  contlict  of 
iiiri>.cliiti(iri,  iiur  iiiiy  imictical  ililllL'ulty 
likely  t  '  >■  '«'".  8u|iiiiisiiif,'  the  two  courts 
t:iki'  till'  siiiiic  view  of  tlic  factH  ;  nil  wi'll. 
SiiiipciM'  tln'.v  slidiild  (lill'iT  ill  the  eoiiclii- 
siuii  llii'V  arrive  at  ;  all  that  eaii  be  said 
is,  that  aimlhel  court  coinpetclit  to  deal 
witli  till-  fat  t.--  lor  the  iiiirjpose  for  which 
till  V  Writ'  pii'sciited,  took  aiiotlier  view  of 
till  III.  Siipiiose  a  jury,  in  an  action  f''- 
crnii.  '■till.,  .sliduld  not  he  satixtied  that  tlio 
ollVnii'  was  ]iinvi'il,  tliey  would  tind  for 
till'  (lirtiMliiiit,  and  th(^  court  of  coiiiiiioii 
liiw  wmild  ;,'ive  jud^'inclit  iiccordiiigly. 
iiut,  till'  saiiic  facts  niij,'ht  be  .submitted 
to  till'  loiii t  of  iiiariiaf;e  and  divorce,  and 
it  iiii,:,'lit  think  the  cliiirj{e  of  adultery 
fully  >iist:iiiii'd,  and  jn'onoiincc?  ii  divorce. 
Ihri'  wiiiild  lie  two  courts  dilferin<{  on  the 
suiiii'  flits,  on,  substantially,  the  .saihu 
i.'i>',if.  15ut  where  i.s  it  |irojioiinded  that 
till'  coiiit  of  coinnioii  law  would  hesitate 
to  ileal  with  the  ca.sc  before  it,  or  be  ilitlu- 
eiii'i''!  ill  any  way  by  what  ii  court  of 
iiwi liiij,'!'  mid  divorce  iiiifiht  or  niif^ht  not 
ilo  I  And,  ccitainly,  there  is  nothing  like 
the  eniillicl  that  arises  ill  the  same  court 
ill  KiiL;liiiid,  under  the  recent  decisions, 
wliieli  alliiw  the  confession  of  a  wife  to  bo 
cviili'iiee  :ii,'iiiiist  lior  of  adultery,  but  re- 
fuse to  ii'ci'ive  it  against  tlie  alleged 
mliiltercr,*  tlioiif,'li  a  co-resjiondent;  iiiak- 
iiiK  the  I'liiirt  in  the  .same  suit,  nnd  in  the 
same  lueiitli,  .say,  as  to  A.,  'A.  and  H. 
ci)iiiii;itti'd  adiiltd'y  together,'  and  as  to 
Ii.,  '  .\.  and  U.  did  not  commit   adultery 

toxetlier.' 

"Tliii'e  is  one  position  of  Garrow,  B., 
in  wliicli  I  licai'tily  concur.  After  stating 
a  |iossilil,'  ('(iiillict  between  the  sjiiritual 
eouit  iiiiil  a  I'liiiit  of  i;ommon  law  he  .says  : 
■  III  this  state  of  diliicultv  the  strong  iin- 


•  Y'leie  is  nothing  by  any  means  execp- 
tioiial  in  this.  A  confession,  while  evi- 
ileiiee  ai;aiiist  the  jiersoii  making  it,  is,  of 
eoiirse,  !iii  evidence  whatever  against  an- 
(itlier  alleged  to  be  guilty  of  the  same 
otl'eiu'c.  An  estoppel  arising  from  the  ad- 
niissioiis  of  A.  does  not  estop  H.,  though 
A.  in  liis  ailniissions  may  allege  that  B.'s 
acts  Well'  the  same  as  those  of  A.  In  the.se 
eases,  like  tliat  named  by  the  learned  judge, 
it  !s  >iiii|ily  a  matter  of  evidence,  and  not 
aemilliet  in  decision  at  all.  A  better  in- 
stiiiee  III'  Mi,.]|  cfiiitliot  would  be,  IIS  ill  the 
ease  (il'Vi'iiiiiiij,,,,  Hunter,  in  the  Province 
olXew  I'liiiiiswiek  (not  regularly  reported), 
wlieie  tlie  spiritual  court  refused  a  divorce 
ill  Hiintei  r.  Hunter,  but  where,  notwith- 
stiiuiiiiig  the  ilccree  to  this  etlect,  it  was 


jire.ssion  on  my  mind,  and  which,  upon  con- 
sidcialioii,  1  have  been  unable  to  remove, 
is  that  if  a  husband  drives  his  wife  from 
home  by  his  misconduet,  and  sends  her 
forth  with  an  implied  ciedit  arising  from 
their  relative  relations,  it  is  his  duty  by 
some  |io.sitive  act  to  deti'iniiiie  iJiat'  lia- 
bility. This  is  just  as  1  would  ]iiit  the 
law.  The  liiisband's  condiiet  and  oll'cr 
should  be  char,  distinct,  unei|uivoeal,  — 
jierhaps  niicoiidilioiial,  —  certainly  without 
any  improper  or  (picstionaiile  coiiditioii.s. 
I'ut  the  actual  decision  in  that  case  goes 
much  further.  It  not  only  rennircs  the 
lialiility  to  be  jiiit  an  "iid  to  by  a  [losi- 
tive  act,  but  by  a  positive  judicial  act,  for 
whii'li,  I  humbly  think,  there  is  neither 
authority  nor  |irinciple.  I  laniiot  liiid 
that  this  authority  has  been  recognized  or 
acted  on  in  any  siibseiiueiit  case,  nor  do  I 
see  that  it  has  been  impeached.  The  only 
case  that  i  have  seen  wiiere  the  point  has 
been  mentioned  is  Tompany  i'.  ilakewill,t 
and  the  only  re|)ort  of  that  is  a  newsjiaiier 
one  in  the  TimcH  of  Feb.  9,  1859.  Mr. 
Haron  ChanncU,  in  summing  up,  is  re- 
ported to  have  said,  after  stating  what 
would  justify  a  wife  in  leaving  her  home, 
and  what  would  clothe  her  with  her  hus- 
band's credit,  '  If  under  these  circum- 
stances she  left  her  home,  she  was  clothed 
with  her  husband's  credit,  and  In^  would 
be  liable  for  all  iicces.saries  which  were 
supplied  her.  She  wouhl  also  be  justitied 
in  remaining  away  if,  after  the  lajise  of 
time,  her  hustiand  reipiested  her  to  re- 
turn, jirovided  .she  had  a  well-grounded 
belief  that  the  indignities  or  cruelties 
would  be  renewed  on  her  return.'  If  this 
is  an  accurate  report  of  what  the  learned 
judge  said,  it  is  adverse  to  the  ca.se  of 
Eincry  v.   Emerj'.     But  the  decision  not 

held  by  Uitcliie  (then  C  ,T.)  himself,  fol- 
lowing the  priiiiiplcs  laid  down  in  iiciinett 
V.  Jones,  that  Hunter's  wife,  being  driven 
from  her  home  by  her  husband's  cruelty, 
became  thereby  his  agent  by  necessity,  and 
had  the  right  to  pledge  his  credit  for  her 
sup[iort.  This  is  a  better  illustration  ot 
the  point  in  the  ]iriiici)ial  ca.se  than  the 
one  put.  Here,  on  the  .same  facts,  the  spir- 
itual court  refused  to  decree  a  separation, 
and  the  common-law  court  sustained  the 
separation;  coiiijxdling,  by  its  decision,  the 
husband  to  do  what  was  ncce.s.sary  for  its 
continuance  ;  and  there  is  no  tpiestion  as 
to  the  correctness  of  the  decision  in  either 
of  the  cases. 

t  This  ca.se  is  rejmrted  in  1   F.  &  F. 
438.     See  ante,  p.  107 . 


II 


i'f  t 


S  i 


m 


\  -  i4 


170 


COMxMENTARIES  ON   SALES. 


[book  II. 


ivm'' 


under  the  English  Divorce  Act  of  20  Vic.  The  facts  were  that 
the  defendmt  and  his  wife  separated  in  1851,  ho  making  hcr  an 
aHowance.  Siie  returned  to  his  house  in  18.32,  and,  as  slie  al- 
leged, was  expelled.  He  then  [)rovid('d  her  a  rc.-idence,  whieli  slie 
left.  In  18o4  she  was  put  into  a  lunatic  asylum,  with  the  coneur- 
rcnee  of  her  father,  whence  she  escaped  in  18.')0.  In  18.30  slic  oh. 
tained  a  decree  for  restitution  of  conjugal  rights,  and  her  hu.sliand 
provided  for  her  a  residence  in  the  upper  part  of  which  he  liiiast,]' 
li\cd  :  but  the  whole  of  which,  except  a  single  room  on  the  groiuul 
floor  (which  she  occupied),  was  divided  from  the  latter  liy  a 
screen  door.  There  was  evidence  as  to  apprehension  on  her  part 
of  liis  intention  to  confine  her  as  a  lunatic,  and,  having  left  the 
house,  she  obtained  the  protecting  order  under  the  act  (the  elTcd 
of  which  is  to  make  her  lial)le  as  a  fonc  so/e  for  her  contracts, 
etc.,  and  to  exempt  her  husljand  from  such  lial>ility),  and  sho 
went  to  reside  in  the  house  of  the  plaintilf.  The  act!o:i  was 
brought  for  her  subseipient  board.  She  lived  under  a  feigiud 
name,  and,  I)oth  before  and  and  after  her  going  to  the  plai'itifi', 
the  defendant  had  searched  for  her  without  ell'ect,  and  he  swoiv 
that  he  had  always  desired  to  find  her  in  order  to  make  a  p.u\i- 
sion  for  her.     The  |)laintilT  had  made  no  incpiiries. 

The  order  under  'he  act  having  been  produced,  and  the  necos- 
sary  evidence  having  iieen  given  with  reference  to  it,  the  jiiiIltc. 
Channell,  IJ.,  after  having  consulted  other  judges,  was  pnyaivd 
to  direct  a  nonsuit,  on  the  ground  that  the  protecting  order  l)aiiiil 
the  action.  Counsel  for  the  plaintilf,  however,  )»ressing  to  lie  al- 
h)wed  to  go  to  the  jury,  and  the  counsel  for  the  defendant  assiiit- 
ing,  th(!  learned  judge  in  summing  up  said  :  — 

"There  are  manv  thinirs  which  would  iustifv  a  wife  in  Icaviiii: 
her  home,  such  as  being  exposed  to  indignity  by  her  Inisliainl; 
bringing  into  tlie  house  a  kept  mistress,  or  ciuelly.  If,  miiiIit 
these  circumstances  she  has  left  her  home,  she  was  elotlu'il  with 
her  husband's  credit,  and  he  will  lie  lial)le  for  all  necessaries 
which  were  supplied  her.  Sh(>  Wfxdd  also  be  justilied  in  n maiii- 
ing  away,  if,  after  the  lapse  of  time  her  husl»and  reipiestetl  lier  ti) 
return,  provided  she  had  a  well-grounded  belief  that  the  iinlleni- 

hiiviitj;  :i]»|ii'nrt'il  iti  a  i( j.Miiz(cl  rrpovt   I  And  flicy  stiouM  liiivi'  Immmi   ti>lii  tliit  if 

have  Mi)t  iilliiwi'il  it  til  iiillui'iii'c  my  iniinl.  she   diil    slie    wa^  jiisiilii'il    in    iiiiiiiiiiiii),' 

"'riu-  rt'siiit,  tiu'ii,  lit'  niy  |iicsi'iil  juilj,'-  inviiy.      Hut  it'  llic  oII'it  was  rli'iir,  ili^timt, 

tni'iil    is  tlmt    tins    It'anii'il   ,jiiilj{t'   .slioulil  jtositivf.  anil   /«)»«?  //</«',  ami   slu'  IiihI  H'' 

hav«  siibiiiitteil  to  tlic  jury  tin-  i|Ucstiiiii  rrasonatili' i;iiiiimls  tor  lidii'vini,' sIii'MhuM 

whctluT  tlic  ctcfomlaiitiliil  iinliil  not  niaki^  lii'  siilijcili'il  to  I'lirtiicr  ill-lriMtiin'ii;,  >he 

tiis  wil'n  11  ()iind  fill''  reiiui'st  to  r'tiirn,  rt--  wa;*  lioiinil  to  rt'tiirn  ;  ami,  if  slir  liiil  ii'>f. 

Cfivu  siij)|iort,  ami  live  witii   liiin  ;   and,  tln'  ri^lit  to  |iii'di,'('  her  iin^liiiini's  iTi'iiit 

if  so    \vlii'tlit>r  sltf  ri'l'iisi'd  on  any  well-  .casi'd.     1  tlnMrfori'  tliiiik  tin'  nili'  slimiM 

pn.indi'd   iM'lict'  that  indifjnitics  or  crnid-  t«'  niadi'  alisnliiti'  lor  a  im'w  triil.  "    link 

tics  wuiild  bf  rcuuwud  upon   her  ri'turii.  aUsuliUu  lor  u  uew  trial  ai'conliii.uly. 


i»  lie  al- 

IlSSl'llt- 

IcaviiiL' 
iisliaiul: 
iiiiili'i' 
i.'d  with 
jrssai'ic^ 
Ircinaiu- 
ll  lirrto 

liiuli'iiii- 

,1,1  lli.it  if 

li.'iimiiiiiii; 

ili^nii''- 

Ji,.  hii'l  II" 

1  sill'  wKiil'l 
Im.'ii'.,  >li'' 
I,,  ili.l  11"'. 

U'S    I'lT'lit 

||1l'  slioiiM 
ll."    Uii''« 
•iv. 


PAUT   III.] 


MARRIED   WOMEN 


fr>lii  llic    ■/'■»(',<  l)y  llitrliii',  .1.,  Ill   li..lilirlt 

''•  ■! ^.     Tlii-i  iiiiipdsiiiiiii  i.-i  till'  niiiviTsr 

1)1'  llii-  liiiMiiii;  ill  Hciiiii'tt  I'.  .Iiiiii's,  JMit  it 
is  iiKviuiis  that  it  \v,is  i|uitc  witliiii  ltii> 
llliuiili;;  (pf  CliMilicll,  1',.,  Iliiit  llif  will' 
VMiiiM  iini  lio  jiistilic'd  ill  I'liiiiiMliiL;  iiwiiy 
tr.iiii 


li;ilii|  if  iii'tc'i-  tlir  iiil'si- 


!l!: 


Ill'  ii(|ni-lril  lur  til  iitiirii  ;  piux  iilnj  slio 
llni  ;i  vvill.i;ii,ii||,l,..,l  iM'liit'  tiiill  tlic  ill- 
ili:,'iiiliis  or  iiiirltii's  woiilil  )iiit  1h>  iciii".vc(1 
U|iiin  liip  I'lliini.  'rill-  ciisc  iiiiiy  tiicrcriHf 
l«'tiiirly  l'^lll^il|(  ml  us  sustiiiiiiii},'  tlic  ]H(i|h)- 
Mlimu  l.'iil  ijiiwii  ill  Ui'iiiictt  V.  .loili's  ;  tlio 
iunixtiR'.ssot  till'  iiiw  II')  laiil  down  iu  Ujth 


ti-'s  or  cruelties  would  be  renewed  upon  her  refuriJ.^  But  when  a 
V  ilo  is  living  with  her  husband,  and  she  leavt^s  him  without  jusu 
ciiiiso,  then  she  lias  no  right  to  j.ledgo  her  husband's  credit.  Any 
]Hist)n  wl.o  supplies  a  married  woman  living  apart  ivnn  her  hus- 
liaiul  with  gooils,  must  do  so  at  his  own  peril,  and  must  make  out 
tht'  authority  of  the  wife  to  pledge  her  husband's  credit,  to  enable 
liim  tu  r('e()\er.  It  is  important  in  the  present  ease;  to  ob-serve 
tlie  ftinduet  of  Mrs.  Ifakewill  previous  to  the  lunaey,  because  if 
vou  liml  that  before  that  period  she  had  ende..vored  to  live  sepa- 
rate Ironi  her  husband,  that  will  throw  eonsideralile  light  upon 
lur  sui-seipient  {proceedings.  The  plaintiff  proved  nothing  with 
ics]itct  to  the  point  of  authority,  and  the  only  eviaence  with  re- 
•ranl  to  that  wan  the  statement  of  Ttlrs.  llakewill,  contradicted  bv 
the  ti'stimony  of  her  husband,  who  was  corrol)orated  by  several 
wiuif^scs.  Tht>  plaintiff  admitted  that  he  hutl  made  no  iu(piiries 
lospeeting  Mr.  llakewill,  or  the  terms  upon  which  his  wife  was 
living  apart  from  him,  and,  although  he  was  not  bound  l)y  law,  or 
even  i)y  conunon  honesty,  to  niitkt^  such  iuipiiries,  yet  if  he  was 
so  iuiiisereet  as  to  supply  goods  without  doing  so,  he  n»ust  take 
till'  eonsiMpiences,  mdess  he  cati  'nak»}  o.u  the  necessary  facts 
rthiiii  would  render  the  husi)and  liable,  lie  has  uot  done  so  if 
you  Lu'Iii'\e  that  the  luisband  provided  a  houio  for  the  wife,  unless 
VDii  think  that  she  left  it  under  a  reasonable  dread  of  unlawful 
LMiiliiii  lUL'Ut  as  an  alleged  lunatic." 

The  jury  found  a  vei'diet  for  the  defendant. 

A  Icained  author  on  Marriage  and  Divorce''^  says:  "  If  th(^  wife 
was  justilied  in  leaving  the  husband  on  .ir  -ount  of  his  misconduct, 
a  notice  to  her  to  return  will  lie  of  no  ii'ail  to  abridge  tlx'  credit." 
Tht'  oidy  authority  cHed  for  this  [iroposition  is  that  of  Kmery  v. 
Knicry.'' 

Thr  cfiso  of  Emery  v.  Kmery,*  is  to  our  mind  eminently  unsatisfac- 
tiiiv  and  unsound  ;  and  wc  very  nuu;h  doubt  if  it  woidd  be  fol- 
lowed in  this  country  or  in  Kugl.ind.  As  we  have  pointed  out,  it 
has  licrii  expressly  repudiated  in  the  province  of  New  lirunswick.'' 

'  Tills  i<  I'Xiii'tly  till'  l;iiit;u.i'.,'i'  i|iiiiti'il     hI"  llicsc  rases  liiiii;,'  (III  |iriiui]il    iimn.cs- 


tioiiii'ily  riiiint. 

-  I>isliii|i,   Vol.    i.    §  .")72.       'I'lir    otiit'f 

tl'XtWlitiTS  lll;lkr  tlic  SilllH'  lllistakc.  Sl'O 
ritMtioiis,    iiifi  I. 

■I  1  V.  \  .1.  ."lOl.  It  is  also  litt'.l  liy 
I'ii~.|iii|i.  iiiiil  ill  siiiiii'  of  till'  Ani'iii'iii 
I  ,,si  s,  s  r"|Mirti'il  ill  t!  I'ui  c,  H:!ii  ;  Imt 
tliiit  (:il'<)  I'.iiit'ry  I'.  KiiH'iy)  is  an  riitinly 

ilillrli'llt  I'MSf,  not  o!i  thi'  i|lli'stiiitl  lit  all, 
mill  ili'i'iil' il  siiiiio  cij^'lit  years  prior  to  tlio 
ileeisioli  iif  liie  ea'te  in  YoUllg  &  .lervis. 

<  1  V.  .^  .1.  r,((i 

»  In  n.'iinett  '•.  Jotii's,  i  AUi'ii,  X,  H. 
1{.  'M7,  fully  f',ati'(l,  aiiti;  ji.  104  it  xiq., 
lunl  iioti!  to  p.  IfiO, 


'■  I 


ihi 


M   H't. 


Il:i     I 


172 


COMMENTARIES   ON   SALES. 


[book  II. 


As  the  question  involved  in  it  is  one  of  considerable  importance 
we  shall  examine  it  fully. 

The  marginal  notes  of  the  case  are :  "  What  will  justify  a  wife 
in  leaving  her  husband  ?  Where  circumstances  justify  a  wife  in 
leaving  her  husband,  a  request  on  his  part  that  she  should  return 
to  his  protection  will  not  determine  liis  liability  for  nocessaiies 
supplied  to  her  during  the  separation.  Alexander,  L.  C.  15.,  ihihl. 
tante.^^  It  may  bo  that,  from  the  facts  in  the  case,  these  luiu'- 
ginal  notes  furnish  a  correct  statement  of  what  the  case  really 
holds.  If  so,  we  would  not  be  prepared  to  dissent  from  such 
a  projjosition,  that  a  mft'f  mjiiest,  or  such  a  request  iis  was 
made  in  the  case,  with  the  facts  connected  with  it,  shotilu  not 
liave  determined  the  husband's  liability  for  tiie  necessaries  suji- 
plied,  nor  should  have  availed  to  abridge  the  wife's  credit  fur 
such  necessaries. 

The  facts  of  the  case  as  they  appeared  on  the  trial,  showed 
that  the  defendant,  from  the  time  of  his  marriage,  which  tuok 
place  on  Nov.  19,  18:20,  had  continually  ill-treated,  and  on  one 
occasion,  struck  his  wife;  and  that,  on  June  '2[\  1821,  he  lieat 
lier  so  brutally,  at  the  same  time  abusing  her  and  swearing'  that 
he  would  rim  her  through,  that  she,  in  consequence,  left  his 
house  that  night  in  a  state  almost  of  nudity,  and  went  to  the 
residence  of  a  friend,  where  she  was,  by  reason  of  the  lll-tnat- 
ment  received  from  her  husband,  confined  to  her  bed  for  seveial 
days.  For  four  years  she  resided  partly  with  her  friends  and 
partly  at  lodgings.  She  then  went  to  the  house  of  her  iatlnr. 
where  she  remained  for  iifty-four  weeks ;  and  to  recover  a  ouni- 
pensatiou  for  her  board  and  lodging  during  that  time  the  aitioii 
was  brought. 

Under  this  state  of  facts  we  are  quite  of  the  opinion  that  a  uicre 
notice  to  the  wife  to  return,  or  a  mere  rcMjuest  on  his  jmrt  thr.t 
she  should  return  to  his  protection,  mny  "  not  avail  to  abridiiv  the 
credit,"  or  to  "determine  his  liability,  for  necessaries  supplieil  to 
her  during  the  separation."  After  such  a  course  of  treatment  as 
that  described,  the  onlv  evidence  of  anv  effort  on  his  nart  tn  \>v'nv: 
her  back  was  contained  in  the  fact  that  it  was  )»roved  on  the  trial 
that,  when  the  defendant's  wife  was  residing  with  her  fatliei-.  ///•" 
hrof/tcr  cdUed  and  Intjuired  after  her,  and  conveyed  the  wish  of 
her  husband  that  she  should  return  home.  Hut  if  what  was 
[•roved  in  the  case  amounted  to  anything  more  than  a  men;  yiii- 
tiUa  of  evidence  of  an  honest,  hnnd  fide  ofTer  on  the  j)art  nf  the 
husband  to  take  back  his  wife  to  his  protection,  an<l  to  diseontiniie 
such  a  course  of  treatment  as,  of  necessity,  had  clothed  Iier  with 
the  agency  which  she  possessed,  that,  it  seems  to  us,  was  clearly  a 


an.!  ,,„, 
■  ■■:  1 

.in.,' 
.  in 

K  an.l 
2>». 

All 

'  On 

'    Wi 

rMMinin 

.'    1. 

Ii"int  w, 

>iM 

ri't't  (.'oiu 

Insi 

PART   III] 


MARRIED   WOMEN. 


173 


question  which  should  have  been  submitted  to  the  jury.  And,  in- 
deed, altl»ou!j;li  there  seems  to  have  been  no  request  on  the  part 
of  the  defendant  to  have  had  that  question  submitted  to  the  jury, 
and  as  there  was  no  such  point  reserved  at  the  trial,  the  case,  on 
that  Lnoiind,  may  be  well  decided.  But  although  from  the  state- 
iiH'iit  iif  the  case  it  seems  that  that  question  was  not  expressly 
siiliinitted  to  the  jury,  evidence  seems  to  have  been  given  —  i)er- 
iiajis  itself  not  amounting  to  more  than  a  mere  scintilla  —  from 
\\liii;li  it  was  claimed  that  it  might  be  inferred  that  the  husband 
snlisefiuently  refused  to  receive  the  wife  ;  and  it  was  claimed  by 
tlie  aide  counsel  for  the  plaintiff,  that,  as  this  view  was  submitted 
in  ar'_niineut  to  the  jury,  they,  by  their  verdict,  appeared  to  have 
a(l(i|ite(l  it.  The  j)laintifrs  counsel  thus,  in  effect,  admitted  that 
this  was  a  (piestion  for  the  jury. 

The  main  reliance  of  the  <lefendant,  however,  was  on  the  hold- 
inir  in  the  now  overruled  decision  of  llorwood  v.  Ileffcr^  (even 
straining  that  case  to  suit  the  facts  in  Emery  v.  Emery),  tliat 
nothing  short  of  personal  violence  on  the  part  of  the  husband 
couhl  snp])ort  an  action  for  necessaries  supplied  to  the  wife.  The 
Cdint,  however,  refused  to  follow  the  doctrine  on  that  point  of 
llorwood  /•.  Iloffer.  which  in  fact,  had  on  that  point  been  repudi- 
ated and  overruled  in  Houliston  v.  Smyth,'-^  two  years  previously. 
On  this  question  there  was  but  one  opinion.  (Jarrow,  B.,  says: 
•'  1  tak(,'  it  to  be  a  clear  principle  of  law  that  if  a  husljnnd  con- 
duets  himself  towards  his  wife  with  such  a  degree  of  misconduct 
and  ernidty  as  to  render  it  no  hmger  safe  for  her  to  remain  in  his 
house,  she  is  not  to  be  turned  out  into  the  street  to  starve,  or  to 
seek  relief  in  the  parish  workhouse,  but  is  justified  in  leaving  her 
honie.  and  goes  forth  into  the  world  with  a  credit  for  the  neces- 
saries of  life  suitable  to  her  condition.  Such  is  the  efT(>ct  of  the 
marriage  contract:  and  if  the  husband  by  his  misconduct  forces 
hor  tn  leave  his  protectiim,^  she  may  seek  the  means  of  subsist- 
iMirc  elsewhere,  and  those  who  from  charity  or  other  motives  are 
williii.;-  to  pr()vid<>  them,  are  entitled  to  recover  a  conqtensation 
from  the  liiisitand."  The  correctness  of  this  i)rinciplc  was  fully 
concnricd  in  l»y  the  otlier  judges. 

On  the  other  point,  the  case  is  much  less  satisfactory.     The 

wifi'  iinlv  olitaiiis  a  cii'dit  for  tin'  ncri'ssa- 
ri''s  (if  lil'i'  liy  tlir  nii-ioiiiluit  of  Iht  lius- 
haiid,  i'i)iii]iclliiif;  her  tn  li'jive  his  jnoti'i;. 
tioii,  (Iocs  nnl  tlic  vrry  coiivcisi'  of  tlii.s 
jirojiDsitiim  sujfKist  itself  as  tlic  lo^jii'al 
si'niu'iu'i'  tliat,  wlii'ii,  hoiiii  Jill-,  liis  iiii.Moii. 
iluct  ci'ases,  J<o  tliat  slif  in)  1()ii;,'it  i.s  fnni  d 
to  remain  away  fnnii  liiin,  lur  cicilit  for 
tlio  ncci'ssarii's  of  life  cpascs  with  tin;  iie- 


'  "  T.nint.  121.  wl.i.h  is  fully  .statiMl 
aii.i  ,Mii,i,li.|v,l,  iiifrn. 

■  :l  liiiiL.'.  V_'7.  See  also  /)/•;•  I.orcl  Kllon- 
WniiL,'!,,  in  Li,l(llow  V.  WiiiiK.t,  'J  Stark. 
»'!.  ai,.l  AlMis  V.  Chaimiaii,  .Sehv.   N.  1'. 

'  One  woiiM  liavp  su]iposeil  that  tlio 
rpasdiiiiii.  oi  thf  Irani. hI  liaron  on  this 
I«iiiit  WdiiM  have  led  liiin  to  a  nioio  cor- 


i      \ 


i 


1  li 


.li: 


ri'i.t  ooialusiuii  on  the  other.     For  if  the     cessity  whioh  alone  (;ave  her  the  eredit .' 


174 


COMMENTARIES   ON   SALES. 


[book  II. 


lifh 


ir. 


i: 


'^f, 


1  <■ 


it  * 


judgment  was  really  that  of  but  two  of  the  four  judges  present. 
Alexander,  L.  C.  B.,  on  the  trial,  had  some  doubt  on  the  question 
ns  to  the  right  of  recovery  for  the  maintenance  after  the  hu.sl);uKi's 
expression  of  willingness  to  take  his  wife  back,  and  his  doubt  had 
not  been  removed  when  the  case  was  decided  in  the  Court  of 
Plxchequer.  Vaughan,  B.,  too,  not  having  been  present  wlicn  tlio 
case  was  argued,  i-eally  took  no  part  in  it.  The  judgment  on  tliut 
point  was  that  alone  of  Oarrow  and  Ilulloek,  BB.  Their  jii(l<r. 
nient  sim|»'y  rests  on  the  entirely  untenable  ground  that,  as  the 
spiritual  court  has  jurisdiction  to  compel  the  return  of  the  wife, 
resort  must  be  had  to  that  court  for  that  purpose ;  and  that  a 
common-law  court  has  not  jurisdiction  to  deliver  such  a  jndgiuciit 
as  might,  in  effect,  amount  to  a  decree  to  compel  her  return  ;  or 
that,  if  the  com.n.yu-law  court  decided  that  the  period  liad  arrived 
at  which  the  husband  might  insist  upon  his  wife's  return,  and, 
upon  her  refusal,  that  this  liability  would  be  determined,  the  .spir- 
itual court,  a  court  of  competent  jurisdiction,  might,  notwitbstiuid- 
ing,  decree  a  divorce  a  mensd  et  thorn  and  alimony,  up(jii  the 
ground  of  cruelty;  and  thus,  a  court  of  law  having  pronoinioed 
the  obligation  of  the  husband  to  su|)ply  uecessaries  to  be  at  an 
end,  a  court  of  competent  jurisdiction,  upon  the  very  same  i'lict.s, 
might  arrive  at  a  decree  diametrically  oDposite.  Thus  reasoninir, 
the  learned  judge,  Garrow,  B.,  concludes  as  follows:  "In  this 
state  of  dilficulty,  the  strong  impression  upon  my  mind,  and  which 
upon  consideration  1  have  been  unable  to  remove,  is,  that  if  a 
husband  drives  his  wife  from  his  home  by  his  misconduet.  and 
sends  her  forth  with  an  implied  credit '  arising  from  their  relalivo 
situations,  it  is  his  duty  by  some  p  )sitivo  act  to  determine  tliat 
liability.  If  the  wife  subsequently  returns,  his  liability  is  at  an 
end  ;2  but,  in  default  of  an  amicable  arrangement,  he  must  go  to 
the  spiritual  court  and  there  ol)tain  a  decree  I'or  the  purpo.se  ;  and 
until  some  uneciuivocal  act  is  done,  a  person  making  a  claim  in  a 
court  of  law  for  necessaries  supplied  to  the  wife,  is  in  my  opin- 
ion entitled  to  recover  against  the  husl)and."  ^ 

We  think  this  reasoning  is  altogether  illogical.  We  think  the 
If.w,  wiiich  is  simply  the  sound  reasoning  in  the  ca.se,  apart  aUo- 
gether  fro'u  authority  *(which  is  merely  an  aid  to  get  at  the  sound 


1  Ilnw  (loos  lie  do  this  ?  By  his  rrnclty  ; 
coiniK'Hiiig  her  to  leave  him,  with  "tha 
implieil  creilit"  for  neeessiiries.  Tlieii, 
when,  bnmi  fide,  the  eriielty  ami  roin|uil- 
.sioii  eeasc,  and  are  so  t'ouitd  hy  a  jury  mi 
sulfieieiit  evideiiee,  do«?s  iiDt  the  implied 
creilit  eease  with  the  necessity  * 

^  Why  not  ciiually  so,  when  from  the 
facts  it  lipconies  lier  clear  duty  to  return  ? 


8  Kmery  v.  Emory,  1  Y  &  ,T.  at  ]).  W. 

•  "  Law  is  the  very  reiison  ol  itie  inse, 
and  that  which  is  not  reason  is  imt  l;iw." 
See  C'otterill  v.  .Myri(;k,  3  Fairr.  2'2'2. 
And  see  leading;  editorials  l>y  tlic  iiDtluT 
of  this  work  on  the  Principles  oi  tin  ('i)tii- 
mon  Law,  in  fi  Am.  Law  Keg.  .v.  s.,  pp. 
6.5,  129,  ;521,  ft  si-q.  "  Coinmoii  !;uv  is 
but  another  name  (or  common  sense,  tostiil 


PART  III.] 


MARRIED   WOMEN. 


175 


reasoning  of  the  case),  is,  that  when  the  wife,  by  the  cruelty  of 
lier  liiisband  or  by  his  failing  to  provide  her  with  necessaries,  is 
compilled  to  leave  him,  she,  as  an  agent  of  necessity,  carries  with 
hor  tlic  implied  power  to  bind  her  husband,  as  the  principal,  l)y 
Irt  contracts  for  such  necessaries.  But,  in  such  case,  the  burden 
of  piuuf  is  on  the  party  who  claims  under  such  agency  for  sup- 
plying such  necessaries,  to  affirmatively  establish  such  agency, 
wliicli  he  can  only  do  by  showing  its  creation  by  tlio  ne- 
cessities of  the  case.  I>ut  when  this  is  once  done,  and  the  hus- 
band seeks  to  put  an  end  to  the  agency,  the  burden  of  proof  shifts, 
and  he  must  show  affirmatively,  to  the  reasonable  satisfaction  of  a 
jir  ,hut  the  agency  has  ceased  because  the  very  necessity  which 
crc'ucd  it,  and  upon  which  alone  it  rested,  has  ceased. 

We  tliiul\  the  argument  based  on  the  theory  of  conflicting  jur- 
isdiction in  the  spiritual  and  common-law  courts,  is  entirely  un- 
tenable. It  is  strange  that  it  had  not  occurred  to  the  learned 
barons  of  the  Exchef|uer  that  if  their  argument  with  reference  to 
the  ceasing  of  the  liability  of  the  husband  at  common  law  for 
necessities  of  the  wife,  was  sound,  because,  in  a  manner,  the  spir- 
itual court  had  jurisdiction  over  that  question  ;  that,  for  pre- 
cisely the  same  reason,  the  common-law  courts  should  never 
have  assumed  jurisdiction  over  the  altogether  cognate  (piestion, 
as  to  the  liability  of  the  husband  for  necessaries  supplied  to 
tl  10  wife  in  the  first  instance.  For,  in  that  case,  is  it  not  quite 
competent  for  the  wife,  on  the  ground  of  the  cruelty  of  her 
liiishniKJ,  and  of  his  failing  to  supply  her  with  necessaries,  to 
apply  for  a  divorce  a  mensd  et  thoro  and  alimony  ?  And  might 
it  not  ])e,  to  take  the  very  position  of  Garrow,  !>.,  that  while  a 
court  of  common  law  might  refuse  to  hold  that  the  facts  would 
justify  a  claim  for  necessaries  supplied  the  wife  on  her  imj)licd 
a'.'eiiey;  "the  s[)iritual  court,  a  court  of  competent  jurisdiction, 
niiirht,  notwithstanding,  decree  a  divorce  a  rnenm  et  thoro  and 
alimony,  upon  the  ground  of  cruelty ;  and  thus,  a  court  of  law 
haviiii:  pronounced  the  obligatifm  of  the  hus'-ijid  to  supply  neces- 
saries '  not  to  e.\ist ;  "  a  court  of  competent  jurisdiction,  upon  the 
very  same  facts,  might  arrive  at  a  decree  diametrically  opposite."  * 

The  case  of  liorwood  v.  HelTer  ^  was  the  ca.se  relied  on  in  Emery 
V.  Kmoiy,3  for  the  non-liability  of  the  husband  for  necessaries 
supplied  to  his  wife.     Horwood  v.  Ileffer,  although  really  less 


ami  s\Ntiniiitionllv  nrrnngrd  by  lonf»  ex- 
Iioriiiiic.'     Harvard  Law  Tracts,  Vol.  v. 

1-. '.il. 

'  it  is  not  «  littlp  singiilnr  thtit  Mr. 
.'iisticc  iJitcJii,.,  now  C.  J.  of  tlie  Supreme 
Court  <.iC;ina(lii,  cntirclv  failed  (as  did  the 
counsd  in  the  case,  and  all  the  rest  of  the 


rnurt),  in  Bennett  v,  .lores,  4  Allen,  N.  R. 
R.  397,  to  notice  this  point,  whi<li  is  abso- 
lutely conclusive  against  the  reasoning  in 
Emory  v.  Kinerv,  I  Y.  &  J.  601. 

a  3  Taunt.  4'21. 

«  1  y  &  J.  501. 


I    .    , 


176 


COMMENTAUIES   ON   SALES. 


[book  II. 


Sr 


!:■    I 


if''      I 


n  ir 


unphilosophicully  decided  than  Emery  v.  Emery,  contains  two 
fallacies.  One  of  these  is  expressly  rcpndlated  in  Emery  v, 
Emery,  where,  loji^ically,  both  of  these  fallacies  shonld  have  fallon, 
and  actually  did  fall  tojjjether,  IJut,  while  in  Emery  v.  Kintry 
one  of  these  fallacies  is  abandoned,  the  other,  which  in  llorwooij 
V.  Ileffer  is  really  the  ground  upon  which  the  principle  irimdi. 
ated  in  Emery  v.  Emery  is  made  to  rest,  instead  of  haviiiLf  Immh 
likewise  abandoned  and  repudiated  in  Emory  v.  Emery,  .^  expressly 
followed  and  allirmed. 

At  the  trial  before  Lawrence,  J.,  in  Ilorwood  v.  Ilcffer,  the 
plaintiff  was  nonsuited  on  his  opening,  without  his  being  allowed 
to  go  into  evidence.  The  facts  alleged  were  that  the  defeiidunt 
had  treated  his  wife  with  great  cruelty  ;  had  taken  another  woiiiuii 
into  the  house,  with  whom  he  cohabited  ;  that  he  had  conliiicd  his 
wife  in  her  chamber  under  a  pretence  of  insanity,  and  that  she 
had  escaped.  The  action  was  brought  for  the  value  of  necessaries 
furnished  to  her  after  her  departure.  On  the  motion  to  set  aside 
the  nonsuit,  and  for  a  new  trial,  Lawrence,  J.,  put  his  decision 
partially  on  the  ground  that,  notwithstanding  the  facts  naniiMJ.  he 
"  thoiight  that,  however  improper  that  conduct  might  be  and  how- 
ever abhorrent  from  the  feelings  of  a  delicate  woman,  she  niiirlit. 
nevertheless,  have  had  necessaries  if  she  had  stayed  there." 

This  doctrine  that  imder  such  treatment  the  wife  would  have 
been  bound  to  stay  with  her  husband,  has  been  rcpeatoilly  rrpii- 
diatcd ;  refused  to  bo  followed,  and  overruled ;  as  it  is  in  fact  in 
Emery  v.  Emery. 

But  Lawrence,  .J.,  goes  further,  and  says :  "  .'^ho  might,  if  she 
had  thought  fit,  iiave  sued  for  alimony  and  a  divorce  a  niiiixd  d 
thoroy  And  Mansfield,  C.  J.,  on  the  same  point:  li  this  Miit 
were  maintainal)l<',  it  would  be  necessary  that  the  jury  shmilii.  in 
the  first  place,  determine  whether  the  wife  lawfully  left  \\vv  iionie 
or  not.  This  would  diolly  supersede  the  necessity  of  a  suit  for 
alimony,  or  for  a  divorce  a  nwnsd  et  thoroy  And  the  rule  for  a 
nonsuit  and  new  trial  was  refused. 

Now,  although  the  decision  in  this  case  that,  under  such  oir- 
cumstances,  an  action  would  not  lie  for  necessaries  supplicil  the 
wife,  is,  as  has  l»een  shown,  elTt^ctually  overruled,  and  i»y  tin'  Ciise 
of  Emery  v.  Emery  among  others;  in  that  very  case  (Muicry  c. 
Emery),  while  the  fact  of  the  antagonism  in  the  two  courts  —  spir- 
itual, and  common-law  or  temporal — has  no  weight  wliativer 
given  to  it  as  preventing  an  action  for  necessaries  in  the  first  in- 
stance, and  it  is,  therefore,  decided  that  such  a  reason  is  entirely 
unsound;  yet,  witli  the  strangest  inconsistency,  the  two  jiulirM 
—  Garrow  and  IluUock,  B13.,  —  on  this  very  ground  of  antagonistic 


if  slio 

[lis    fiilll 

iiiiM.in 
li'  liomi- 
Uit  for 
for  a 

tell  oil'- 
ii>a  the 

ic  CllSO 

jn.TV  I'. 

Imti'vor 
jl-^t  ill- 
intin'ly 


PART  irr,] 


MARRIED   WOMEN. 


177 


jurisdiction,  decided  that  at  common  law  the  courts,  which,  not- 
withstanding thivS  antagonistic  jurisdiction  (or  in  one  sense,  it 
might  more  correctly  be  called  a  kind  of  concurrent  jurisdiction), 
could  give  a  decision  recognizing  or  establishing  tlio  agency  by 
necessity;  could  not,  in  consequence  of  such  alleged  antagonistic 
jurisdiction,  give  a  further  decision  to  the  effect  that  such  inijilied 
agency  had  ceased.  As  well  might  they,  in  any  other  case  where 
courts  have  concurrent  or  antagonistic  jurisdiction,  such,  for  in- 
stancf,  as  where  courts  of  common  law  and  probate  can  decide 
questions  in  a  directly  opposite  way  arising  out  of  wills,  repudi- 
ate the  jurisdiction  of  one  or  other  of  the  courts.  And,  even  in 
the  cuninion-Iaw  courts  themselves,  there  may  be  two  actions  in 
the  same  matter,  as,  for  instance,  in  an  action  for  the  price  of 
goods  furnished,  and  a  cross-action  on  a  warranty  connected  there- 
with, where  the  effect  in  the  two  actions  may  be  to  neutralize  or 
counteract  each  other.  Or,  even  a  better  instance,  where  for  libel 
a  criminal  and  a  civil  remedy  are  given  ;  in  the  one  case  a  verdict 
of  not  guilty  might  be  rendered,  and  be  in  direct  antagonism  to 
the  decision  uf  another  jury,  which,  for  the  same  alleged  libel, 
miudit  find  ground  for  substantial  damages.  And  yet  in  these 
cases  no  one  has  ever  thought  of  suggesting  that,  because  of  such 
concurrent  or  antagonistic  jurisdiction,  the  jurisdiction  itself  does 
not  exist.  We  are,  therefore,  very  strongly  of  the  opinion  that 
the  doctrine  in  Emery  v.  Emery,  which  we  have  deprecated,  can- 
not 1)0  sustiiined ;  and,  for  the  reasons  alleged,  we  consider  that 
llorwood  V.  Ileffer,  when  reversed  on  one  of  the  grounds  on  which 
it  was  decided,  was  logically  and  of  necessity  reversed  on  the 
other;  and  tliat  the  doctrine  in  Emery  v.  Emery  which  we  have 
boon  considoring,  which  has  been  adopted  by  numerous  text- 
writors.  and  whiidi,  as  far  as  we  are  aware,  has  uevor  been  ques- 
tioned or  icpudiated  by  any  text-writer,'  is  not  law.  We  there- 
fore think  that,  on  authority  as  well  as  on  princi[de,  the  law  on 
the  subject  is  as  wc  have  stated  it.^ 

The  law  in  the  matter  is  simply  that  of  ageney.  It  is  an  im- 
pliod  iigoncy ;  an  agency  of  necessity,  like  the  strictly  analogous 
agency  of  a  shi|)-master,'''  and  in  the  one  case  as  in  the  other, 

'  SiM>  1  ni>li.  on  Miir.  k  Div.  §  ,'>72  ;  lioMiiii;  in  tluM-asc,  I.crtkc  in  KiiKliiml,  anil 

1   I'm-.  :iii  Coll.   ;{'.'3,  note  (o)\    I  Ailtl.  Sti.iy  (W.  \V.)  in  this  innntiy,  liavf  nut 

"iiCon.  141;    Lciikc  on  ("on.  571  :  1  Cli.  citi'il  it  for  the  iiioiid  iin)|M)siti(in  whicli 

'mCon,   2H!;  Sli.'lf.    M.ir.  k   Div.   4:58;  liisho]).  us  c|uoti'.l  liv  us  (.(/f^,  p.  171 ),  ;inil 

Srlimilir,   |)(iin.  IM.  §  (iti ;  Sflioui.  IIus.  tho  otlicrs  liiivc  ilonc  ;    I'liitty,  liowcvcr, 

&  \Vil'i.,  §  111 ;  Story,  Suk's,  §(14  ;  1  Story  in  doin^'  so,  (■iiutio\isly  (|niilifyin^'  it  with 

"II  '"'i.   §  178,     It  U  but  rij,'ht  to  oKscrve  lui  "  It  has  Imm'U  hrld,"  etc. 
tbt   wliil,.   nil   these    writers    have   cited  ^  Ante,  p.  Uiii. 

Kimry  v.  Kuiery,  1  Y.  &  J.  501,  without  »  See  posl,  Book  II.,  Part  IV.,  where 

•■itlur  oi  them   jiointing  out   the   wrong  this  i.s  fully  consiilereJ. 


N 


in 


VOL.  I, 


12 


;  |s 


178 


COMMENTARIES  ON  SALES. 


[book  II. 


being  created  by  necessity,  is  terminated  when  that  necessity  has 
ceased.* 

This  doctrine  is  established  by  numerous  authorities.  We  will 
examine  some  of  them.  In  Hindley  v.  The  Marquis  of  West- 
meath,^  where,  in  pursuance  of  articles  of  separation  (which,  how- 
ever, were  declared  invalid)  securing  a  maintenance  to  the  wife, 
she  left  her  husband's  house  against  his  wishes,  and  continued  to 
live  apart  from  him,  although  he  was  willing  and  wished  to  re- 
ceive her  back  and  provide  for  her  in  his  own  house,  it  was  held 
that  he  was  not  liable  to  be  sued  by  tradesmen  for  debts  contracted 
by  her,  even  for  necessaries. ** 

It  was  held  in  Harris  v.  Morris,*  that  a  husband  who  has 
turned  his  wife  out  of  doors,  cannot,  by  a  general  aclvortisemont 
in  the  newspapers,  or  by  particular  notice  to  individuals,  not  to 
trust  her,  exempt  himself  from  a  demand  for  necessaries  fur- 
nished to  her  while  so  living  apart  from  him;  and  though  a  wife 
has  been  guilty  of  adultery,  if  her  husband  takes  her  again  into 
his  house,  if  he  afterwards  turns  her  out,  he  is  liable  for  necessa- 
ries furnished  to  her.^ 


1  The  f^round  of  claim  is  put  in  one  of 
tlie  Amoricixn  cases  as  resting;  on  marital 
rights  nlo!io  ;  thus,  it  is  stated,  doing 
away  witli  the  necessity  of  the  introduc- 
tion of  any  legal  fiction.  We  do  not  con- 
cur with  this  view.  Tiie  aijency  of  neces- 
sity is,  undoubtedly,  founded  on  the  mari- 
tal rights  of  the  wife  to  support  from  her 
husband  ;  but  it  is  the  iirci\isifi/  of  her  re- 
reiving  such  support,  from  the  improper 
conduct  of  the  husband  in  improperly 
forcing  her  from  his  home  witliout  mak- 
ing provision  for  the  supply  of  such  neces- 
sity, that,  ex  neccmtiite,  clothes  her  with 
lier  powers  as  agent.  There  is  no  more  of 
a  legal  fiction  in  holding  h'^r  to  be  such 
agent,  from  the  necessities  of  the  case,  than 
tiiere  is  in  any  other  c.ise  where  the  neces- 
sities of  the  case  bring  into  existence  full 
agency  powers.  The  very  common  case  of 
tiie  ship-master  is,  in  this  respect,  strictly 
analogous  to  the  case  of  the  deserted  wife. 
The  ship-master  is  not  only  the  agent  of 
the  owners  of  the  ship,  and,  as  such,  is 
clothed  with  extraordinary  powers  when 
the  circumstances  arise  whicii  call  for 
their  exercise  ;  but  he  also  becomes,  under 
a  like  necessity,  the  agent  For  the  owners 
of  the  cargo,  with  similar  extraordinary 
powers.  From  his  position  of  trust,  the 
necessities  of  the  case  cause  a  duty  to  de- 
volve on  him,  in  the  performance  of  which 
he  has  full  powers  of  agency,  e,x  inxemlnte, 
as  the  wife  has  who  has  Im-cu  improperly 
driven  from  her  home,  by  her  husbamf, 
without    being  provided    with   adequate 


means  for  her  support.  See  the  cases  in 
this  section  on  the  subject,  supm  and 
infra.  And  see  Brown  v.  Mudgett,  40 
Vt.  68. 

2  6  B.  &  C.  200. 

*  Bayle.s,  J.,  thus,  correcth',  lays  down 
the  law  :  "  If  a  husband  improperly  I'uni- 
pels  his  wife  to  leave  his  house,  lie  tlnreliy 
gives  her  power  to  pledge  his  cri'ilit  fur 
necessaries  ;  but,  if  she  goes  away  with- 
out his  consent,  and  ag.iinst  his  will,  1 
am  of  opinion  that  a  tradesman  givinj;  her 
credit  does  so  at  his  peril.  If,  under  siitb 
circumstance.s,  a  deed  is  executed  by  the 
husband  .securing  a  provision  to  the  wife,  I 
think  that  he  cannot  be  sued  by  any  persnn 
who  may  supply  goods  to  the  wife,  b 
that  he  is  only  liable  to  the  tnisti'cs  fur 
the  money  which  ho  has  covenanted  to 
pav,  which  was  the  form  of  action  inloptod 
in  Jee  v.  Thurlow,  2  B.  &  C.  .517.  Smh.i 
mode  of  proceeding  will  make  liini  liahlf 
to  the  extent  of  his  covenant,  and  not  to 
an  indefinite  amount,  subject  to  no  lim- 
itation ;  provided  a  jury  can  \«'  proviiili'd 
upon  to  think  that  the  artidiy  fuiiiishcl 
are  necessaries,  taking  into  cniisiili'ratinn 
the  rank  and  stiition  of  the  wife."  Hiiil- 
ley  V.  The  Marquis  of  Westmeatli,  6  b.  4 
C.  200. 

<  4  Ksp.  41. 

*  Lord  Kenyon,  in  .so  luildini;,  said: 
"With  respect  to  her  having  i«'pii  forni' 
erly  guilty  of  adultery,  and  having  '*'•''' 
in  tlie  Magdalen  Asylum,  lliuiiKh  an 
adulterous  elopement  will  prevent  the  Iius- 


PAUT  III.] 


MARRIED  WOMEN. 


179 


In  the  case  of  HoiilistOi  r.  Smyth,^  where  Horwood  v.  Ilcffer 
was  ri'ijudiatcd,'-*  it  was  held  that,  where  a  wife  leaves  her  husband 
under  such  an  apprehension  of  personal  violence  as  a  jury  shall 
esteem  to  have  been  reasonable,  her  husband  is  liable  for  neces- 
saries furnislicd  for  her  support.  In  this  case,  alimony  was  act- 
ually decreed ;  but  as  the  decree  was  not  for  several  months  until 
after  the  cluim  for  the  necessaries  arose,  the  actual  granting  of 
the  alimony  was  held  not  to  have  affected  the  case  ;  so  not  only 
was  llurwood  v.  IlelYer '^  here  overruled,  but  the  ground  upon  which 
it  was  decided  was  treated  as  unsound,  and  Ilouliston  v.  Smyth* 
is  entirely  void  oi  the  inconsistency  manifest  in  Emery  v.  Emery .^ 


tanil  from  being  liable  for  articles  fiir- 
nislieil  to  tiie  will'  during  tilt;  term  of  her 
il(i]'iiii(nt,  that  is  no  answer  now.  The 
luisKiiini  lias  taken  her  back,  and  she  was, 
frmn  tliiit  time,  entitled  to  dower.  She 
WHS  s/w/i'''  rdradit,  and  of  course  entitled 
to  iiiiiiiitcnanco  during  coverture,  if  her 
hn>li;iiiil  turned  her  out  of  doors."  And, 
;i;;aiii  :  "  Tlie  next  ,lefence  is,  that  he 
acivurlis.'il  her  in  a  newspaper,  and  forbid 
iMTsoiis  to  trust  her.  That  cannot  avail 
Iiim  ;  i'or,  if  lie  put  her  out  of  doors, 
tliiiM','h  he  advertised  her,  and  cautioned 
all  jK  isiiiis  not  to  trust  her  ;  or  if  he  even 
i;avi'  [laiticular  notice  to  individuals  not 
III  i;ive  Inr  credit,  still  he  would  be  liable 
fur  in'('(  ^>aii(s  furnished  to  her;  for  the  law 
hxs  sai'l  that,  whir  a  man  turns  his  tiufe 
"III  (if  il'iors,  he  .sends  with  her  credit  for 
hi-r  nnsnnidik  crpcnscs."  i{arris  v.  Morris, 
4  Ksji.  41. 

'  ;i  Itins.  127. 

-  "  The  doctrine  in  that  case  cannot  be 
law."  /Vz-Hest,  C.J. 

^  3  Taunt.  421 ;  fully  discussed  supra, 

p.  17.')  i-t  srq. 

*  3  I'.iiig.  127. 

5  1  V.  &  ,1.  501. 

Hnlinyil,  ,1.,  in  Montague  i'.  Benedict, 
3  B.  &  < '.  »)31,  636,  where  a  wife  was  liv- 
ing witii  her  husband,  and  certain  articles 
Were  sujiplied  her  which  the  court  held 
Were  not  iieees.saries,  thus  lays  down  the 
law  ;  "  riidoubtedly  the  husband  is  liable 
for  necessaries  provided  for  his  wife,  where 
ill'  nijjlci'ts  to  provide  them  himself.  If, 
linwever,  there  be  no  necessity  for  the 
articles  provided,  the  tmde.sman  will  not 
Ik'  entitled  to  recover  their  value  unless 
Ih"  e:m  show  an  exnress  or  imjdied  n.ssent 
to  till'  idiitraet  made  liy  the  wife.  Where 
»  tiiulestnan  takes  no  pains  to  ascertain 
whi'thcr  the  necessity  exists  or  not,  he 
suiiplies  the  articles  at  his  own  peril ;  and 
if  it  tarn  out  tiiat  the  necessity  does  not 
fxi^t,  the  husband  is  not  resjionsible  for 
what  may  be  furnished  to  his  wife  without 
bis  kuuwledge."      And   Bayley,  J.,    "  1 


tike  the  rule  of  law  to  be  this  :  if  n 
man,  without  any  justifiable  cause  turns 
away  his  wife,  he  is  bound  by  any  contract 
she  may  make  for  nece.s.saries  suitable  to 
her  degree  and  state.  If  the  husba'id  and 
wife  live  together,  and  the  husbiind  will  not 
supply  her  with  necessaries  or  the  means 
of  obtaining  them,  then  aWumgh  she  has 
hfV  remedij  in  tlu,  ceclcsiiistical  court,  yet 
she  is  still  (il  lihcrty  to  pledge  the  credit  of 
her  husband  for  what  is  strictlij  necessary 
fir  }ur  support.  [Here  again  is  a  virtual 
repudiation  of  the  doctrine  of  both  Hor- 
wood V.  Heifer,  and  Krnery  v.  Kmery.] 
Hut,  whenever  the  husl)and  and  wife  are 
living  together,  and  he  provides  her  with 
necessaries,  the  husband  is  nut  bound  by 
the  contracts  of  the  wife,  excent  where 
there  is  reasonable  evidence  to  snow  that 
the  wife  has  made  the  contract  with  his 
assent.  Ktherington  v.  I'arrott,  Lord 
Uaym.  10(l6.  Cohabitation  is  presumptive 
evidence  of  the  assent  of  the  husband, 
but  it  may  Iw  rebutted  by  contrary  evi- 
dence ;  and  when  such  assent  is  juoveil, 
the  wife  is  the  agent  of  the  hus))and,  duly 
authorized."  Alontague  i*.  Benedict,  3  B. 
&  C.  at  p.  635. 

And,  in  Seaton  v.  Benedict,  5  Bing.  28, 
where  it  was  hehi  that  a  husband,  who  sup- 
pli(^s  his  wife  witii  necessaries  in  iier  degree, 
is  not  liable  for  debts  enntiaeted  by  her 
without  his  previous  authority  or  subse- 
quent sanction,  the  law  is  thus  laid  down 
by  ISest,  C.  J.  :  "A  husband  is  only  liable 
for  debts  contracted  by  his  wife,  on  the 
assumption  that  she  acts  as  bis  agent.  If 
he  omits  to  furnish  her  with  iiectssaries 
he  makes  her  impliedly  his  agent  to  pur- 
chase them.  If  he  supplies  li<r  (iroperly, 
she  is  not  his  agent  for  the  jmrcha.se  of  an 
article,  unless  he  sees  her  wear  it  without 
disai>probation." 

Keed  v.  Moore,  5  C.  &  P.  205,  is  an- 
other case  almost  going  to  the  extent  of 
holding  contra  to  Emery  v.  Emery.  It 
was  there  held  that  to  make  a  husband 
liable  for  his  wife's  board  and  Iwlgiug  at 


!     I 


(1 


M 


v^im 


t    .M 


I  dill? 


180 


COMMENTARIES  ON  SALES. 


[book  II. 


A  very  nice  point  in  connection  with  the  law  as  to  the  husband 


being  liable  for  necessaries  to  the  wife  when  justifiably  livin 


g  sej). 


tlui  liouae  of  a  third  jM^rson,  wlu'ii  tlio  wifo 
louves  ill  i.'(iiisi'4Ut'iii!0  of  a  (lixputt.-,  it 
iiiUHt  bi>  shown,  uithcr  that  \m  coiiiliict 
rtiiittiTcil  it  iiiii»i(i|it'r  fur  her  to  livf  with 
him,  or  thut  hf  knew  whcri!  nlie  wiis  rt-siil- 
illg  iilld  (//(/  not  lU'tkr  (III;/  njl'ir  Id  litkr  lu'r 
buck;  rxiupt  iifKDi  cnniliHiiM  irkich  he  hud 
no  riijht  to  iiud-r.  I^onl  Aiiiii;,'i'r,  C.  B.,  in 
HUiniiiint;  u|i,  in  Kiiiini'tt  v.  Norton,  8  C. 
&  1'.  fiOtJ,  furiiislii's  II  very  clear  anil  satis- 
factory exposition  of  the  -{('ni'ral  law  relat- 
ing; to  the  wifi-'s  power  to  himl  her  hnshand 
for  iieeeNsaries,  in  the  following:  "I  take 
the  law  with  resp.'ct  to  Imshainl  ami  wifo 
to  In;  this.  Where  a  wife  is  liviiif^  with 
her  hiisbainl,  nml,  where,  in  the  onlinary 
Hrrangcnient  ot  her  hu.'thand's  hoiHehoM, 
h\w  j;ive»  orders  to  tradesmen  for  the  Ix'ii- 
efit  uf  her  hnshaiid  and  family,  and  tiiesi> 
orders  arc  moper  and  not  extravaj;aiit,  it 
is  presumed  that  she  has  tho  authority  of 
her  hiisliand  for  so  doin<;.  This  rule  is 
foumled  on  comiMon  sense,  for  a  wife 
wonld  he  of  little  use  to  her  hushand  in 
their  domestic  iirraiii^emeiits,  if  she  could 
not  order  such  tliiii<{s  as  are  proper  for  the 
use  of  a  house,  and  for  lierown  use,  with- 
out the  interfcrciKte  of  In  r  husband.  The 
law,  therefore,  iiresumes  that  she  does  this 
by  her  husb:inil's  authority. 

"  When  the  husliand  and  wifo  are  sepa- 
rated from  each  other,  and  do  not  live  in 
the  same  house,  new  considerations  arise. 
If  the  husband  has  turned  the  wile  out  of 
doors,  and  docs  not  };ive  her  adei|Uate 
means  of  subsistence  accordinj;  to  his  de- 
cree in  life  and  his  fortune,  the  law  makes 
her  his  a^^eiit  to  order  such  thiiiiis  as  are 
reasonable  and  iieccssnry  for  herself,  but 
it  nivcs  her  no  liberty  to  jjo  into  extrava- 
Knnce,  or  to  pledj^e  iiis  credit  foranythiiig 
beyond  what  would  l)e  reasonable  and 
necessary  for  lier  subsistence.  If  siic  1h> 
living;  in  opi'ii  adultery  her  husl)aiid  is 
not  bound  by  any  <'ontract  which  she  may 
make,  even  for  necessaries.  If  the  hus- 
band has  not  turned  the  wife  out  of  doors, 
and  they  have  separated  in  conseiiuciice 
of  domestic  dillVrciices,  ami  they  do  not 
live  to;;ctlicr,  another  consideration  arises, 
which  is  this.  lias  the  husliand  jriveu 
the  wife  sulliciciit  for  lU'ccs.saries  suitalile 
to  his  dcfrree  >  For,  if  he  has,  he  is  not 
liable  to  her  delits,  even  for  necessaries  ; 
for,  if  the  wife  has  from  her  husliand 
wlierewithal  to  provide  herself  with  neces- 
saries, she  cannot  go  as  her  husband's 
agent  and  bind  him  even  for  necessaries. 
Suppose  the  husband  has  a  given  income, 
and  it  appears  that  he  has  settled  it  upon 
his  wife  ;  or  he  assigns  to  her  and  pays 
her  a  portion  of  tliut  adeciuate   to  her 


situation  and   necessities,   the   law    iIoh, 
not  iiiithorize  u  trudesnuin  to  sii|>|ily  jnr 
faijiies  in  any  way,  even  for  iitci^siiii., ; 
and,  even   where  she  has  an  itiitiioritv  lu 
order  neue.ssarie.s,  she  cannot  j,'o  aiiil  onlcr 
furniture   ainl    the    like,    wliich,    tli>iu;'li 
they  may  be  necessaries,  are  not  suil.ihle 
to  her  condition,  as  her  husbaiiir>  n^'i'iii.' 
A  i|ncstion  came  up  in  the  very  iviTiit 
rasi'  oi"  Wil.son  o.  (Jlossop,   l'.»  <^i.  |i.  |). 
37i*,    when    it  was   held    tiy  th'    '.'in'ciri 
Bench  Division,  in   an    action        lin-it  a 
husband  for    necessaries   supplied   to  iili 
wife,  that  the  husband  was  liaijjr  ;  \\\,,.\,. 
it   ap|icared   that    the   wile   had  coniiiiit- 
ted  adultery  with  the  connivance  o\'  lnr 
husband,  and  tho   husband  siiii.siM|Ui.iitly 
turned  her  out  of  doors  ;  that  slie  liail  no 
means  of  support  ;  and  that  tiii>  ]il,iihtilf 
supplied  her  with  the  nccessaiiis  in  cjiim. 
tioii  when  she  was  living  separate  hum 
her    husband.      The    Court    of    A|>[»ai, 
sustaineil  the  juilgmcnt.     Wilson  r.  (ilds- 
sop,  '20  (^    B.  1».   U.'il.      Lord    l^liir,  in 
the  Court  of  Ai)peal,   put  the  law  ilms: 
"  When   a    man  marries   he  is  hounil  to 
keep  and  maintain  his  wife,  uiil  ^>  >lie  has 
committed  adultery.      Ami  iiiiliier,  lie  is 
iMund  in  honor  to  protect  her   from  in- 
famy.    This   man  has  done  the  reverse. 
The  argument  for  him  to  exonerati' him 
from  liability  to  maintain  his  wite  wmilil, 
if  it  is  sound,  establish    that    it  lie  liul 
forced   his  wife  to   prostitulioii  and  liidl 
on   the  procei'ds  of  her  shaiiie,  he  mi^'lit 
slill,  whenever  he  ]i|eased  so  to  ilo,  turn 
her  out  of  doors  for  that   very  adiiltriv, 
and  declare  that  he   was  no  loiiL.'er  li;iiii« 
for  her  niaintenaMi'c.     NothiiiL,'  wmiM  in- 
dui!e  IMC  to  d(M,lai(^  that  such  ^va^  tlieliw 
except  a  superior  authority  which  wmild 
bind    nie,       1    do   not    can'   to   cdii-iliT 
whetlier   the   wile   can,  nmler  tln'M'  Wr- 
cumstances,  claim  restitution  ol  cdnjiij^l 
riglits.     That  a   husband,  even  al'ttr  his 
wife  has  committed  adulleiy,  sliouM  mm 
her  out  without  means  of  support  is  li;u4; 
but  to  say  that  a  man  who  lia>  beni  an 
accomplice  can  do  so  is  dcjfradiii';.     Tli're 
is  not  and  there  could  not  be  a  syiii|'i"in 
of  authority  in  support  of  such  a  piii|"'<i' 
tion,"     Wiison  v.    Clossop,  ;io  (.>.  B.  I'. 

at  n.  536.     The  following  ar I(liti.|iial 

authorities  for  the  huslian'l's  liil'iiity. 
I"" redd  v.  Kves,  4  Harring.  :iHo;  lllow-rsp. 
Stnrtevaut,  4  Deiiio,  4rt  :  Hiiiis  r.  Mt- 
ris,  4  Ksp,  41.  Kustland  v.  UiucIm-I 
Q,  B.  1),  ii\2,pfr  Lush,.!.:  "Tlie 
ority  of  a  wife  to  pledge  the  cndii  of  lie: 
husband  is  a  delegated,  not  an  inln'niit. 
authority.  If  she  bind  him,  sl:e  lii";'* 
him  only  as  an  a^^eiit.     If  she  Icavis  liim 


,5 

iiiitli- 


PART  III.] 


MARRIED   WOMEN. 


181 


anito  from  her  husband,  came  up  in  Bazclcy  v.  Forder.'  There 
the  plaiiitilY,  un  the  order  of  the  defcndant*H  wife,  supplied  ch)the8 
fur  tilt'  (lol'ciuhvnt's  child.  The  defendant's  wife  was  livin;j;  sepa- 
rate from  him  for  reasons  which  justified  her  in  doing  so  ;  and  the 
diild,  which  was  under  seven  years  of  ajre,  was  livin<,'  with  her 
a!.raiii3t  the  defendant's  will;  an  order  of  the  Master  of  the  Uolls 
liavini,'  lu'cn  niatle  under  the  Knglish  act,  enipowerinj:  him  to  make 
siR'h  un  order  where  the  child  was  under  that  age  (l)ut  whieh  act 
contains  no  provision  relative  to  the  support  of  the  child),  giving 
the  wife  the  custody.  The  wife  had  no  means  adecpiate  to  sup- 
port luT  according  to  her  husband's  degree.  It  was  held  by 
IJhukbiirn,  Mellor,  and  Lush,  JJ.  (Cockburn,  C.  J.,  dissenting), 
that,  as  the  child  was  by  law  properly  in  the  care  of  the  wife,  tluj 
reasonable  ex[)enses  of  pro^  iding  for  it  were  part  of  the  reason- 
alilc  e.\|)('nses  of  the  wife,  lor  which  she  had  authority  to  pledge 
her  hiisl)and*s  credit. 

It  is  in  one  sense  carrying  the  principle  of  agency  by  ne- 
cessity a  step  fnrtl'er  than  any  other  ease  which  so  far  has  come 
under  our  notice.  The  very  foundation  of  the  doctrine  of  agency 
by  necessity  is,  that  it  is  an  involuntary  agency,  —  an  agency  not 
couiinL'  into  existence  at  the  will  of  the  principal,  but  by  the 
necessities  of  the  case ;  and  as  regards  the  case  of  a  married 
wiiniati  as  such  agent,  the  agency  is  as  a  general  rule  in  opposi- 
tion to  the  will  of  the  principal ;  and  yet  it  is  so  far  elTeetive,  that 
as  long  at  least  as  the  separaticm  is  justifiable,  the  express  notice 
and  declaration  of  the  princip  I  that  his  wife  is  not  his  agent,  has 
no  e^V(•^  whatever  to  relieve  him  from  the  liability  of  the  acts  of 
his  agent  by  necessity,  —  an  agency  which  not  he.  but  the  law, 
has  created  and  established. 

In  the  case  of  Rawlyns  v.  Vandyke,^  Lord  Eldon  said  it  was  a 
question  f o  •  the  jury  whether  a  husband  living  apart  from  his 
wife,  and  allowing  the  children  to  remain  with  her,  did  >iot  con- 
stitute her  his  agent,  and  authorize  her  to  contract  debts  for 
clothing  and  necessaries  for  them.  But  then,  as  Lush,  J.,  in  effect 
pointed  out  in  Bazeley  v.  Forder,  the  agency  was  created  by  the 
voluntary  act  of  the  husband  in  allowing  the  children  to  live  with 
hor.  Here  it  was  against  the  will  of  the  husband  that  the  child 
remained  with  the  wife.  But  against  his  will,  in  liazeley  v.  Forder, 
the  law  gave  the  wife  the  custody  of  the  child.  If  the  agency 
were  voluntary,  as  in  the  case  of  Rawlyns  v.  Vandyke,  the  hus- 

withniit  ( iuwe  and  without  consent,  she  See  MoCutthen  v.    McOalmy,   1 1  Jotms. 

carries  ho  implied  authority  with  lur  to  281  ;  McGahay   v.    Williiuns",    ]'.'   .lohns. 

maintain  herself  at  liiseximnse.     But  if  he  293;  Baker  r.  Barney,  6  Johns.  72. 
*roiij;f,illy  eoni|K.'ls  her  to  leave  his  home,  »  L.  R.  3  Q.  H.  5.59. 

lie  Is  liound  to  maintain  hor  oliewhere."  *  3  Esp.  at  p.  252. 


182 


COMMENTARIES  ON  SALES. 


[book  II. 


.1 


band  would  be  liable.  If  involuntary, —  the  law  taking  tho  cliild 
from  him  and  placing  it  with  tlio  wife,  —  it  comes  pretty  closy  in 
analugy  to  tiic  cuhc  ut'  the  wife  herself,  to  huld  that  the  law  iiujilitii, 
by  the  necessity  of  talting  tho  cliild  from  tho  father  and  giving  it 
to  the  mother,  that  tho  same  agency  is  given  by  necessity  to  the 
motlwr  as  she  would  have  been  clothed  with  if  she  had  tlie  mis- 
tody  hy  the  voluntary  act  of  her  husband ;  as  in  such  euso  sho 
would  have  had,  according  to  Ilawlyns  v.  Vandyke.* 


'  Kxci'pt  on  tliis  ground,  we  see  no 
HdtUfiii'toi'y  iinswur  to  tlic  vt-ry  iiblu  dis- 
H«ntiu){  ,|iid;^nu-nt  of  (_'o(;kbiirn,  C,  J.  As 
thu  |iohit  is  oiiu  lK>t)i  of  intui'i-iit  ami 
inii>iirtiiui!(<,  wo  iiimti!  fully  fri>!.i  tia'  ,jud>{- 
niiuit  of  till)  court,  dflivend  liy  Hluck- 
burn,  .1.,  us  follows:  "A  wile,  v.hin  sopu- 
rated  from  lnu'  liuslutiid  in  uonHui|Ucnou  of 
ntisi;ondiii:t  on  liis  (lart  renduring  it  iin- 
|iro|ii'r  for  licr  to  riMuuin  with  liini,  is  in 
the  sauiH  position  as  if  hi;  turned  her  out 
of  dctors,  and  is  by  law  clothed  with  power 
to  pleilj,'(!  his  credit  for  her  reasonable  ex- 
jionses,  ai'eording  ti'  her  husband's  de;,'rec, 
unless  she  is  in  M)niu  other  way  supplied 
with  thu  means  o'"  providing?  them.  If, 
therefore,  the  plaintilfs  claim  here  had 
Iwoii  for  reasonai)le  apparel  supplied  to 
the  wife  herself,  or  for  tho  supply  of  food 
for  her  household  servants,  such  as,  ae- 
cordini;  to  her  husband's  def,'roe,  would  be 
reasonable,  there  was  evith-nee  sulheient 
to  be  left  to  th(!  jury  in  support  of  his 
claim  to  charge  thu  husband.  And  thu 
only  ({uestion  remaining  is,  whether,  thu 
wife  having  tho  custody  of  the  infant, 
against  tho  husband's  will,  but  by  forco 
of  nn  order  made  under  tht;  statute,  thu 
reasonable  expenses  incurreil  in  |iroviding 
for  the  infant  are  part  of  the  wife's  reasoii- 
ablo  cxpe  >es  within  tho  meaning  of  thu 
rule  of  law.  If  they  are,  tln-ro  was  cvi- 
denco  that  tho  defendant's  wife  was  sepa- 
rated from  tho  defendant  under  such  cir- 
cumstanucs  as  gave  her,  by  law,  authority 
to  plr'^e  hor  husband's  credit  for  them, 
and  tho  verdict  must  stand  ;  if  they  are 
not,  I  do  not  see  any  legal  principle  on 
which  tho  defendant  can  l)e  madi;  liable. 
There  is,  I  believe,  no  authority  or  case* 
bearing  on  the  point ;  but,  I  think,  on 
lirincijile,  that  as  soon  as  the  law  becanu^ 
.such  that  a  wife  se|)aratod  from  her  hus- 
band might  ]iroperly  and  legally  have  tho 
custody  of  her  infant  children  under  the 
age  of  seven  years,  though  the  husband 
objectecl,  it  Iwcatne  a  rensonahle  and 
necessary  thing  that  .she  should  clothe 
and  feed  those  chihlren  according  to  their 
degree.  It  is  true  that  in  one  sense  this 
is  an  expense  voluntarily  incurred  by  the 


wife,  as  she  is  not  obliged  to  ask  for  or 
take  the  iiistoily  of  hor  ihild;  bul  1  think 
thu  wife's  authority  in  such  c.isi.i  is  to 
pledge  the  husband's  credit  for  I'lr  icnju- 
ultle  expenses,    though  they  cXi-i'imI   whjt 
hIio  is  obiigetl   to  incur,      'i'he  uile  ol' tli« 
richest  subject  ill  the  realm,  wlu'ii  ihiviMi 
from  her  husband's  roof,  is  not  oliliL,'i'il  to 
have  HorvuntM  or  clothes  suitalile  ii)  lur 
degree.      If  she  tdiooses  to  clothe  liri*.||' 
ccoiioniieally,  and  dispense  with  iitti-iicl- 
aiice,  she  iiiav  do  so  ;  yet  I  appreliiiul  it 
will  not  be  disputed  that  shi,'  iii.iy  liin't 
her  husband  by  ordering  clotln's  aiil  Iiir- 
ing  servants  reasonably  (it  for  her  iIi^mw; 
and    if    her    husband's    station   b>-  lii^'h 
enough    to    make   it  reasonable,  or<l>'iiii;> 
liveries  for  those  servants.      All  tliuM  ix- 
peiises  are  voluntary  in  one  sense,  fill  if 
the  wife  ciiooses  she  need  not  iinui  tlmii. 
I  cannot  but  think  that  tho  very  objntut 
the  statute  was  that  a  wife  shoidd  iiit  U 
compelled  to  do  violence  to  her  lei'liiu'iu 
a  mothur  by  parting  from  her  iiilant  I'iiild, 
when  she  was  nut  in  lault;  and  tli.it  wlun 
she  does  choose  to  keep  her  child,  jiikI  u 
by  law  empowered  to  do  so,  tiie  ixjiiii^ts 
necessarily  incurreil  in  doing  so  ,iie  niifs- 
sary  and  reasonable,   having  relVii  iht  U 
her  station,   not  merely  as  the  wile  ul'i 
liei'son  in  the  station  of  the  defend, uit,  but 
us  the  wife  properly  having  the  ciislu'lyof 
tho  infant  children  of  the  mania;,'!',    iti* 
argued  that  if  this  is  so,  the  liiKility  J 
the  father  is  changed;  for  a  fitlicr's  I'lal 
obligation  to  su|)port  his  child  is  not  mure 
than  to  supjily  such  food  and  ilniliiii,' « 
are  necessary  for  health;  whilst  il'tli'^b 
any  authority  given  by  law  to  tin'  witi',  it 
is  to  pledge  the  husband's  credit  for  siiii 
necessaries  for  the  child  as  may  I'l'  ii'i*""' 
able  with  reference  to  the  IiusIkiii'I'i  *t|" 
tion.     This  is  true,  bat  the  sann'  ivimrk 
ap]ilies  to  the  wiT'.      A  hushitil.  wi.il-: 
his  wife  resides  with  him,  chooses  h\*»n 
style  of  life,  —at  least  in  theory,     hub 
quaint  language  of  Hvde,  J.,  in  .Mnuliyr. 
Scott  (1  Mod.,  at  p.  llVS),  if  '  the  wil';'  «i" 
have  a  velvet  gown  and  n  satin  ii''iti'oi'» 
and  the  husband  thinks  mohair  or  (mm- 
ton  for  a  gown,  and  watered  tabby  Kt  » 


See  infra,  Hancock  v.  Merrick,  10  Cush.  41, 


PART   HI.] 


MARRIED   WOMEN. 


1S8 


Tlic  (jucstion  as  to  the  liability  of  the  hu8l)and  for  noccssarios 
to  hid  wile  who,  having  left  him  fur  sutlicicnt  reason,  refused, 


ttiioat,  in  as  rii»liioiml>lo,  and  fitter  for 
iisi|Uulitv,  till' huslmiid  !!«  to  ili'ciilc,  mill 
iiPitliiT  till'  wile  nor  n  jury,  it  may  be, 
cdiiM^tiii.i;  of  ilrupcrs  anil  inilliiifrs.'  But 
wlii'ii  till-  liusliiiihl  liaH  without  ciiu.su 
tunii'cl  iiin  will'  out  of  doors,  or  by  liis 
iivvii  I'aiilt  I'l'iiili'ii'd  it  ini|>i).sNibK'  for  licr 
to  I'oiilr  with  him,  tlu;  rulu  in  ehnnf,')-d  : 
tiji'  hiislniiiil  iN  no  h)np!r  the  Hoitt  ju(l>;e 
(pf  Mli.it  is  ht;  liut  th(!  law  j{ivt'.s  tin-  wilt-, 
ill  Mil  ii  a  rase,  authority  to  |ik'il{{e  hi.s 
iii(iit  fur  luT  reii.soimlile  ('XiH'nw.s,  leaving 
it  to  lie  (leteriiiiiied  by  otliurH  what  i.s  reii- 
H.iiiiilile.  'I'iiis  inereiuse  of  the  hu.sband's 
lialiility  only  eoines  into  jilay  when  he 
i.i  in  the  fault,  and  so  in  not  unjUNt.  I 
think  tlie  ineieased  lia)>ility  incurred  in 
ivsiHit  iif  the  wife  having;  the  custody  of 
till'  I'liildreti  falls  witliin  thu  8aniu  prin- 
riple.  and  therefiiie  I  think  that  this  rule 
sliiiul  I  lie  iliseliarjied." 

It  has  been  freijuentlv  hold  in  this 
(Diniti V,  wlieie  a  wife  justifiably  leaves  her 
iiiisliaiiii,  and  takes  her  child  or  children 
with  lur,  and  the  husband  makes  no  ob- 
ji'i'tinii  til  her  doinj;  so,  that  it  will  Iw 
ini]ilieil  that  he  is  us  liable  for  thesujiiiort 
of  till'  rliiltlieii  with  their  mother  as  ho  is 
fur  the  siiii|MPit  of  his  wife.  This  accords 
with  iiiu'  own  view,  as  stated  above.  In 
Iti'vniiMs  I'.  Sweetser,  81  Ma.ts.  78,  the 
t'viilini'i'  .-.hiiwed  that  u  husband  had  been 
puilly  uf  viiilcnie  and  cruelty  towards  his 
wife,  in  ei)iisei|ueiii'e  of  which  she  left 
his  lumse,  haviuf,'  reasonable  and  well- 
grounili'il  a|iiiii'lii'iision  of  further  violence 
frmii  hlni,  taking'  with  her  their  child  of 
uliuiit  six  years  old,  which  was  taken  by 
its  iniitliiT  to  the  |ilaintitr  to  board,  thu 
hiis.lj;Miil  liaviiij,'  made  no  .suitable  jirovi- 
sioii  fur  their  suiiport.  The  court  held, 
tli.it  .!'  the  father  kiu'w  the  child  was 
tlii'P'  III  toiik  nil  steps  for  reclaiming  it, 
or  pioviilin;;  for  it  in  any  other  way,  ho 
was  lialile  fur  that  which  its  mother  pro- 
iiiri'il  tn  lie  aironled  by  the  iilaintilf.  In 
Kuinncy  r.  Keyes,  7  N.  H.  r>71,  5«0,  fol- 
l<win!,''i;;nvlyiis  r.  Vandyke,  3  F.sp.  2'>2, 
it  Was  lii'lil,  that  if  a  luisbainl,  living  in  a 
state  of  -ipiM'.it ion  from  the  wife,  sud'ers 
his  rliililivii  til  reside  with  their  mother, 
he  is  liiililr  fur  necessiiiies  furnished  them; 
fill',  as  a  latiier,  he  has  the  right  to  the 
iiistdily  iif  his  children,  and  may  obtain 
]iiissessiiin  of  their  jiersons  by  habfns  cor- 
Ji'ii:  Init  where  he  does  not  a.s.sert  that 
rii-'ht,  and  siili'ers  them  to  remain  with 
lliiir  niiitlier,  In-  thereby  constitutes  her 
liis  au'i'Mt,  and  authorizes  her  to  con- 
t'.ii't  debts  fur  clothini,'  and  nncpssaries. 
This  case  was  followed  and  alfirmed  in 
Allen  V.  Aldrich,  29  N.  H.  63,  73,  and  in 


Walker  i>.  I-aij;hton,  31  N.  II.  Ill,  115. 
Kimball  i:  Keyes,  11  Wt'inl.  33,  uUo 
holds  that  one  living  seiiamtii  from  his 
wife  and  daughter  is  undoubtedly  bound 
to  furnish  them  with  necessaries  suitable 
to  their  condition,  and  his  omission  to 
do  so  would  furnish  them  with  a  general 
credit  to  that  extent.  But  in  I'idgin  v. 
Cram,  8  N.  II.  3.1ii,  where  a  husband  anil 
wife  separated  bv  niutual  consent,  it  was 
held  that,  in  order  to  cliargi'  her  husband 
for  the  support  of  their  child  living  with 
her,  there  must  lie  a  clear  and  palpable 
omissiun  of  duty  in  that  respect  on  the 
part  of  the  father;  and  where  there  was 
nothing  in  the  case  to  show  but  what  he 
was  ready  and  willing  to  furnish  all  that 
was  wanted  for  the  u.se  of  the  child,  he  was 
held  not  liable  for  supplies  to  till'  child 
furnished  by  the  plaintill'.  The  ca.se  of 
Hancock  V.  Merrick,  lo  C'ush.  41,  is  very 
neiirlv  identical  in  ellect  with  liu/elcy  rJ. 
Fonler,  L.  1!.  3  (^  B.  [,:,{>,  und  the  deci- 
sion at  rived  at  is  contrary  to  the  holding 
in  liazeley  v.  Korder.  In  Iliincuck  V. 
Merrick  the  defendant's  wife  left  him, 
for  the  cause  of  cruelty,  on  Dec.  13,  1848, 
taking  their  child  witli  her.  On  May  12, 
18l!»,  she  obtained  a  divorce  from  her 
linsliand,  and  at  the  same  time  the  cus- 
tody of  the  child  was  awarded  to  the  wife 
until  the  lu'xt  term  of  court.  In  .Septem- 
ber, 1849,  alimony  was  granted  to  her,  to 
commence  at  the  date  of  the  divorce  (May 
12,  18410,  and  was  jiaid  as  it  fell  due. 
The  custody  of  the  child  was  continued 
with  the  mother  until  the  next  term.  The 
child  had  resided  with  the  niuther  at  the 
jilaintiirs,  and  had  been  fuiiiislied  bv  him 
with  board  from  Dec  13,  1S»8;  biit  thi.s 
had  lieen  contrary  to  the  wish  of  the  de- 
fendant, who  had  repeatedly  rei|Uested  to 
have  the  custmly  of  the  child.  The  claim 
was  for  board  from  Dee.  13,  1848,  to  May 
12,  IS  (It,  and  also  fruni  .Mav  12.  l.S4ft,  to 
.Sej.t.  2'.t,  l.s4!t.  It  w;is  held  that  no  lia- 
bility atlailieil  til  the  lather  and  husband 
for  the  board  of  the  child  taken  away  from 
his  home.  The  decision  went  upiui  the 
ground  (see  lleynolds  r.  Sweetser,  81 
Mass.  at  11.  .'^l),  not  only  tliat  the  cliild 
was  absent  witlniiit  hi>  consent,  but  iim- 
trary  to  his  wishes  ;  and  that  he  had  \v- 
jieateilly  reipii'>ted  to  l>e  ]ierniii;id  and 
oUowed  to  have  and  retain  the  iiistody  of 
the  child.  It  was  upon  the  ground  that, 
in  manifesting  an  earnest  wish  and  desire 
to  receive  the  child  into  his  own  care,  ho 
impliedly,  but  distinctly,  indicated  and 
expressed  also  an  intention  and  willing- 
ness to  discharge  liis  jKircntal  duties,  that 
it  was  adjudged  that  he  was  under  no 


;  f 


5    'i 


\ 


t . 


"ii: 


:l- ^ 


184 


COMMENTARIES  ON  SALES. 


TbOOK  II. 


from  expftctation  of  the  ill-usage  she  had  previously  received  from 
him  being  resumed,  to  return  to  him  again,  notwithstinding  his 

legal  respoiisibilfty  to  the  i>laiiitiff  for  *;he 
Bupplius  hi!  iiiiil  tin  iiisliuil,  or  tlie  ex)>ens4-s 
ho  hail  iiicurrud  in  su|iiK.>rtiii<;  tlie  child. 
As  closely  as  tlii!   t'acU  in  tliu  two  casus 


ai)proai;li  «ach  otliur,  we  are  inclined  to 
think  that  Imth  iJazdcy  »).  Fonler,  L.  11. 
3  Q.  B.  5.')9,  and  Hancock  o,  .Muriick,  10 
Cash.  41,  iiotwithstanilin;^  thu  holding  in 
the  one  cisu  that  tlm  fathiT  was  liable, 
and  iu  tint  iitliur  tiiat  he  was  not,  are  cor- 
rectly decidi'd.  Tiicre  is  one  point  in  tho 
two  cases  wliere  there  is  an  essential  dif- 
ference lM!twi'i!n  tlii'in.  In  thu  Enf{iish 
Act  (2  it  3  Vic.  c.  .'.4,  §  1),  there  is  no 
provision  inadi;  for  tho  support  of  tho 
child  or  children;  and  on  the  princi|tle  of 
agency  of  necessity,  it  mif^ht  well  Ixj  held, 
that  where,  under  siU'h  an  ai't,  tho  law 
placed  the  custody  of  tlio  child  with  its 
mother,  it  was  implied  that  she  was 
clothed  with  tho  same  jjowers  as  an  agent 
of  necessity,  as  lhi)ii:,'h  she  were,  on  com- 
mon-law prini,'i|)les,  in  pro|H'r  custody  of 
it  without  any  'ault  on  her  part,  and  that 
tho  liability  of  thi>  liushiiid  and  father 
would  iMpially  attadi  in  the  one  case  as  in 
tho  other.  Hut  in  Hancock  v.  Merrick, 
lo  Cash.  41,  it  was  unite  otherwise. 
There  it  is  clear,  without  room  for  con- 
troversy, that  down  to  M  ly  12,  1H4!>, 
there  was  no  claim  a;,'ainst  tlie  father,  for 
the  chilli  was  voluntaiily  kept  from  him 
against  his  will.  And  althnugh  the  cus- 
tody of  the  child  was  legally  given  to  the 
wife  on  May  12,  184'.t,  yet,  in  Septemlier, 
184"J,  alimony  «  is  i^rauled  to  her,  iH'giii- 
jiiiig  at  .May  12,  ISt'.t.  It  was  tlieiefore 
coin|ieli'nt  lor  the  coui't  to  consider  the  sup- 
lK>i't  of  the  ciiild  in  inakiu'.^  the  allowance 
of  alimony,  as  jurisdliliou  over  the  whole 
matter,  as  well  the  aiiiiiuiit  of  the  allow- 
ani'o  as  the  decree  top  the  divorce,  was 
with  the  court  ;  and  lieiu'e,  it  would  well 
Heeni,  that  no  claim  agiinst  the  defeiidaut 
could  1h3  sustiiiui'd  in  excess  of  the  ali- 
mony, any  more  for  the  support  of  the  child 
than  for  its  mother.  Making  this  distinc- 
tion U'tween  the  cases,  wc  are  inclined  to 
think  they  are  both  cnrrei'tly  decided.  In 
support  of  this  dislini'lion  which  we  have 
taken,  we  liud  that  by  the  statute  in  .Mas- 
sachusetts, iu  eH'cct  when  Hancock  ('.  Mer- 
rick, 10  Cush.  41,  was  decided,  |irovision 
was  made  for  the  granting  of  nliinony  for 
thu  suitable  support  and  maintenance  of 
the  wife  on  being  divorced,  "and  such 
children  of  the  marriage  as  are  comiiiitted 
to  her  care  and  cnstncly."  See  (ieneral 
Statutes  of  Massachusetts,  A.  l>.  18(50, 
chap.  107,  8  4;i. 

We   find   a   quite    oil    American   case 
(A.  D.  1808),  Stanton  v.  Will-ioti,  3  Day 


(Conn. ),  37,  where  the  same  point  i«  di-- 
cided  and  in  the  Naiue  way  as  in  lia/A'lvy 
V.  Forder,  Ii.  K.  3  Cj.  B.  551) ;  and  in  tliK 
one  case  us  in  the  other  by  a  divided  cDurt. 
Although  the  facts  of  the  case  are  dill'er- 
ent,  the  ratio  dccidemli  of  the  one  ease  is 
identical  with  that  of  the  other.  In  Sun- 
ton  V.  Wilhon  a  husband  and  wife  win; 
divorced  by  a  decree  of  the  legislatinv,  a  . 
mony  was  allowed  her,  and  she  was  r.ui  n 
tuted  sole  guardian  of  two  of  tlieir  iiil.u. 
children.  In  a  suit  against  the  latliiTnl' 
the  children  for  the  uducatiou  and  si;{.|Min 
of  the  children  furnished  by  the  phuniill', 
it  waa  uluimed,  inter  nlUt,  that  a.s  the  ali- 
mony was  given  "  for  tho  nurliire  aiui 
education  of  the  children  as  well  a.s  fur 
the  support  of  the  woman,'"  the  failier  wiis 
not  liaole  for  their  snp]K)it.  But  ih.' 
court  said  :  "By  the  divorce  the  ivlatiuu 
of  husband  and  wife  was  destroyed,  but 
not  the  relation  k-tween  Bird  (the  Iitliur) 
and  his  childi^Mi ;  his  duty  and  lialiility 
as  to  them  remained  the  same,  except  w 
far  forth  as  he  was  incapnciti'ted  or  ills- 
charged  by  the  terms  of  the  decree.  This 
decree  takes  from  him  the  guariliansliip  of 
two  of  his  children,  and  with  it  the  rij;lit 
which  as  natural  guardian  he  iniglit  have 
otherwise  exercised  ;  and  releases  him  Irum 
those  duties  only  which  a  guardian  as  such 
is  bound  to  perform.  This  transfer  nt'  the 
guanlianship  to  the  plaintiff  vestnl  Ikt 
with  powci-s  similar  to  guaidians  in  uther 
cases;  and  the  aitpointinent  of  the  pliiii- 
titfto  this  trust  ilid  not  subject  leT  U\  tho 
maintenance  of  the  children,  lier  w;iril,«, 
any  more  than  a  stranger  would  have  Iwfii 
subjei'ted  by  a  like  appuintmeiit.  iiy  iic- 
ce)>ting  the  trust  she  became  bnuml  to  pro- 
vide for,  protect,  and  educate  tlietu  at  the 
expi use  of   Bird,    iinli'ss  llw.   licnr  of  • 

l/riliT'll    ILtSi'lltllh)  k'lS    lU'llll-    lllllir  tlilKJit'lt. 

jiriirisioii,  which  by  the  terms  of  that  ile- 
ciee  she  is  bound  to  apply.  This  is  not 
the  ci.se  here.  The  sum  allowed  wan  di- 
rected to  be  paid  to  her  n.v  li<r  pirt  ami 
]Hir/ii)ii  of  Hird's  fslii/f,  nail  in  lifn  of  all 
cfiiim.i  of  tiiiiirr."  This  niiikes  the  fait.'i 
of  the  case  identical  in  ell'ect  with  those 
of  Ba/eley  v.  Forder,  L.  K.  3  <,>.  B.  5.ii». 
And  the  decision  is  put  upon  pre  iselytlie 
ground  which,  iM'I'oie  w.'  had  i\,iiiiiiii'il 
Stanton  i>.  Willson,  we  intimate  1  wa  the 
only  ground  upon  which  Bazeh  y  v.  For- 
der could  be  sustained.  The  iniirt  saiii; 
"It  may  lie  gem  nilly  true  that  niiimrs 
under  the  government  of  )Kin'iit.s  cciiiot 
bind  their  parents  for  necessaries  without 
their  consent.  The  daugei  of  ennmragiiii! 
children  in  idlenisH  and  disiiliediem  e,  leiu 
of  their  being  inveigled  into  exi«'iise  by 


PART  III.] 


MARRIED   WOMEN. 


185 


offer  to  receive  her  back,  is  considered  in  Thomas  v.  Alsop.*    The 
decision  is  in  accordance  with  the  views  we  have  exi>rcsscd  in 


llif  artful  mill  designing,  furnishes  a  suf- 
ti.'itiit  reason  for  tlio  rule  ;  but  neither 
tilt'  mil'  nor  the  reasoning  will  apply  to 
tlic  cli;ii>;e.s  in  resjiect  to  two  of  the  cliil- 
dri'ii  in  liii'<  «asi'.  The  aitich's  were  fur- 
uisliiil  liy  tlie  fiuiirdiiin  hers'df  or  at  her 
ri'i|Uf.>t,  wild  '///  virtue  ofhcrtrunl  hid  fall 
ii'iinr  III  cuiilrmi,  iniil  make  thr  J'titln  r  Ha- 
hie  fur  ii'Oiniirii:',  mil  onli/  wi/JiinU  but 
u'luiiint  Ilia '■iiiixnU."  Stanton  f.  Willson, 
;J  !»iiv,  ]).  ;i7.  She  thus  by  virtue  of  her 
tiibt  Kcranie  an  iij;ent  of  necessity,  just  as 
u  ,->lii|i-iiia.sti'r  does  in  eases  of  emerfjeney 
by  virtiif  of  his  trust ;  or  as  ii  niarrieci 
Wdiiian  (Iocs,  wlio  by  virtue  of  her  marital 
rights  for  support  is  clothed  •I.  powers 
to  liiiid  liir  liusbaiid  as  his  a<5"tK  rx  uiccn- 
siUw.  On  this  ground  we  tiiink  that 
Biizeley  r.  Fonler,  I..  R.  3  (,>.  B.  55!*, 
liaiu.iik  V.  Mcirick,  10  Cusli.  41,  ami 
SUintdii  r.  Willson,  3  Day,  37,  are  all  well 
ili'i'idi'il,  iiotwitiistanding  tiiat  the  llist  and 
last  (if  llicic  cases  were  decided  by  only  a 
iiiajdi'ity  (if  tlie  judges.  On  tile  same  |>rin- 
i'i|ile  tiiat  W(  think  is  the  sound  one,  and 
on  wliiili  W(^  think  tiiese  eases  are  to  be 
Mistaiiicii,  We  are  also  of  the  opinion  that 
the  liter  Connect jcut  ease  of  Finch  v. 
Fiiieli,  '2'.!  Conn.  411,  in  the  same  Slate  in 
whi'ii  St.inlou  r.  Willson,  3  l>ay,  37,  was 
(li'ii(|e(l,  i.i  also  to  be  sustained.  Finch  V. 
Filiili  wa-  also  (iecided  by  a  bare  m.'ijoiity 
of  the  court  ;  and  wldle  we  think  that  tiii! 
case  was  correctly  "l('ide(l  »ve  do  not  tiiink 
that  tlie  nasoning  of  eitln^r  the  majurity 
or  the  iM'iioriiy  of  the  court,  as  niiplicablo 
to  the  '.Ills  in  the  ease,  was  sound. 

It  Will  lie  notic-il  that  the  decne  in  the 
oaji'  of  Slant. Ill  c.  Willson  was  made  by 
the  |e^;isl;itiire,  while  in  the  later  crse  of 
Finrli  e,  Fiiicli  the  decree  was  by  the  Su]H'- 
rior  C  't.  |!y  the  Coiiuecticnt  act  in 
i.iici'  at  I  e  time  the  decree  was  niaile  in 
finch  V.  Filicli,  it  was  provided  that  the 
Sii|MMior  C(aiit  shoiiM  iiave  e.xclusive  jn- 
risditioii  of  nil  pe'itions  for  diviwce  ; 
tiii^lit  assign  to  any  woman  divorce(l  such 
rcaMiluiMe  part  of  the  estate  of  ler  late 
hii.>liaMd,  not  exceeding  one  third  |iiiit 
tluTcdf,  as  in  its  discreti(Ui  the  circuin- 
staiices  ol  the  estatt^  would  admit,  and 
iiiiu'ht  make  sucii  order  as  between  the 
parties  fill-  III,.  eusto(ly.  care,  and  educa- 
tion (if  the  children  of  the  marriage  as 
»Ui'h  court  iiiiglit  (leeni  necessary  and 
lil(i|ier  (see  (Jeiii'iiil  Statutes  of  ('(Hiliecti- 
I'lit,  A.  II.  IStiO,  lit.  13,  e.  3,  §§  32.  3t'.,  and 
S^.  Se(  tioii  4(1  iilso  relates  to  the  subject, 
hilt  that  SM'tioii  was  not  passed  until  after 
Kiiidi  V.  F  ncli  was  decided,  and  was  prob- 


ably passed  in  consequence  of  the  decision 
in  that  cose).  In  the  case  if  Finch  v. 
Finch  three  of  the  judges  held  that  the 
divorced  husband  was  not  liable  for  the 
8upi»ort  of  the  minor  children  in  the  cus- 
tody of  the  mother,  while  two  of  the 
judges  held  that  he  was.  The  decision  of 
thu  majority  of  the  judges  mainly  rests 
ujton  the  ordinary  (diimiondaw  legal  lia- 
bility of  the  fatlier  lor  tlie  support  of  his 
minor  children,  iiiioting  on  that  jioint  very 
largely  from  the  Kngli.sh  ca.ses,  and  from 
the  American  ear"s  which  correctly  lay 
down  the  law  on  that  iioiiit.  True,  they 
dissent  from  the  holding  in  Stanton  i*. 
Willson,  3  Day,  37,  yet  we  think  a  correct 
appreciation  of  what  we  have  shown  to  bo 
the  riilwiiali:  of  that  case  would  have  led 
them  to  have  sustained  it  without  alfect- 
ing  their  decision  in  Finch  v.  Finch,  22 
Conn.  411.  The  minority  of  the  court 
undertake  to  follow  the  (leci>ion  in  Stan- 
ton r.  Willson,  but  they  tail  to  notice  the 
essential  dilfereiice  between  the  two  cases. 
While  Stanton  v.  Willson  is,  as  we  have 
shown,  identical  in  ]iiinci|ih!  with  the  re- 
cent Knglish  case  of  Ba/elev  v.  Folder, 
L.  H.  3  (,».  B.  fl.'iit,  the  later  Connecticut 
ca.se  of  Finch  v.  Finch,  'J'2  Conn.  411,  is 
identical  in  jirinciple  with  the  Massachu- 
sett;  case  of  Hancock  c.  .Merrick,  10  Cnsh. 
41.  Aud  while  in  two  of  these  ca.ses  it  was 
decided  t.hat  the  father  was  not  liable  for 
the  suppoit  of  his  minor  cliildreii,  and  in 
the  other  two  ca.ses  it  was  decided  that  ho 
was  liable,  ve  think  tliey  were  ail  cor- 
riH'tly  decided  within  the  nrinciple  on 
which  Stanton  r.  Willson,  3  Day,  37,  was 
exjiressly  (Iecided,  and  the  groiiinl  o)  which 
decision,  in  our  coiiiiiiiiiis  on  lia/ehy  v. 
Folder,  we  had  aiiticiicilcd  liiioi  to  our 
having  examined  .Stmioii  cWiilMiii  at  all. 
The  bill  in  this  case  (Fiinh  r.  Fiiieh) 
prayed  for  a  divorce  from  tlie  defendant, 
for  ali':;.)iiy  from  his  otaie,  and  lor  tho 
custody,  control,  and  education  of  saiil 
children,  n  i'li  mirh  priivisiiui  fir  lUrif 
sii/i/iiir/  mil'  I'iifiiti'in  as  slmnlil  hr  just 
null  Infill.  The  court  jiasseil  a  decree 
granting  ilie  (li\(  ice,  assigned  the  cus- 
todv  of  the  (  liildieii  to  tlleil  llintic'l,  iiml 
"decreed  that  the  sum  of  .'¥1,2J2  be  as- 
signed  to  'he  pies'iit  jilaiiitilf  as  such  ali- 
mony mill  iilliiirniin  .  '  On  Ibis  state  of 
facts  we  can  see  lo  ground  what.'ver  — 
this  sum  <if  Jll,'.*2-  liaviiig  been  duly  jiaid 
—  for  any  "laini  again-,;  (he  lather  tor  pay- 
ment of  any  fiiitlier  sum  for  the  support 
of  the  minor  children,  while  under  such 
decree  they  reiuained  in  the  custody  of  tho 


i  I 


»  L.  U.  5  Q.  B.  151. 


i 


11 


186 


COMMENTARIES  ON  SALES. 


[book  ii. 


examining  Emery  v.  Emery .^  The  question  came  up  under  the 
31  and  32  Vic.  c.  122,  sec.  133,  which  gives  the  power  to  tho 
guardians  of  the  union  or  parish  to  order  the  husband  of  a  mar- 
ried woman  requiring  reUef,  to  maintain  his  wife  by  payiucut  of 
such  sums  as  they  might  direct.  Although  the  decision  is  iindoi 
this  act,  the  principle  as  to  the  liability  of  tiio  husband  alter  tiie 
wife's  refusal  to  return  is,  on  that  point,  equally  applicable  to  cases 
at  common  law. 

The  appellant  in  the  case  was  summoned  before  justices  under 
the  act,  when  it  appeared  that  tlie  appellant's  wife  had  lol't  him 


mother.  We  think  siuh  a  claim  could  bo 
no  better  .sustained  aLjiiinst  him  tliiiii  in 
8Ueh  n  sUitf  of  fuels  eouKl  tin  luMitioinil 
action  for  tiie  counsel  fees  anil  costs  of  tlic 
divorccil  wife  ;  and  on  that  ]Hiint  we  iiuite 
uoncur  with  tlu-  defendant'.'!  counsel  in 
Sheltiui  I).  I'iMilleioii,  18  t'onn.  417,  420, 
that  "the  ohlv  way  to  coniiiil  the  hus- 
band to  make  a  iva.M)nal)le  advance  to  tlu; 
wife  for  couiiM'l  lees  <iiiit  I'lliir  vy/irit.sr^ 
is  by  an  urder  of  the  court  ;^iantin<;  tiie 
divorce.  If  tlieic  is  no  special  allowance, 
this  is  always  taken  into  consideration 
wliere  a  decree  for  alimony  is  luissed." 
But  in  answer  to  this  )ioint  the  minority 
jud;;es  in  Finch  r.  Finch,  22  Conn.  411, 
422,  say:  "  licsidcs,  it  should  he  consid- 
ored  tli.it  the  alimony  j;iven  to  the  di- 
vorced wife  is  niven  for  her  snpiiort  and 
not  theirs ;  and  no  court  in  li.xinj^  the 
proper  sum  for  alimony  has  a  iij,dit  to 
take  into  thi>  ai'couiit  the  children  of  the 
maniaye,  respecting;  whom  there  may  by 
possiliilitv  lie  an  order  of  the  court  founded 
upon  their  necc.s.sitie.s."  IndepeUilellt  of 
the  fact  that,  in  this  case  the  hill  was  ex- 
pressly liled,  inter  alin,  I'l  -  such  provision 
for  the  support  and  education  of  the  chil- 
dren as  shoulil  lie  Just  and  le;{al,  anil  that 
tlie  dei-ree  ordered  a  payment  for  "such 
alimony 'HI'/ i(//"(/vfH('c ''  (see  find.  p.  41'!), 
yet  indepetidiiit  of  this  tlh'  minority 
jildp's  were  wroiif;  when  they  .said  :  "  No 
court  in  li\iiiv'  the  pfo]M'r  sui!i  hu'alimouy 
has  a  li^ht  to  take  into  the  account  the 
children  of  the  niarria;.'","  etc.  The  rule 
is  the  reverse,  hoili  in  ''.iijjland  and  in  this 
eonnti  V.  Thu-..  in  Cramwell  n.  Cramwell, 
Ht  K.  r  s.  fill,  it  was  ^stated  by  Wihle, 
.!.,  that  .in  the  jjiantinj,'  of  a  divorce  the 
court  makes  a  peiinanent  provision  fur  the 
ehiMreli  alnii;r  xvlili  the  innocent  party. 
Anil  sec  l5ii>co  I'.  IJrisoo,  2  Hav'K-  Cousis. 
lOy,  'Jill,  and  Cooku  V.  Cooke,  2  I'hillim. 
40,  as  to  the  piinciplcs  jjoverninjj  ti,"  court 
ill  their  decidiut;  as  to  the  alimony  which 
will  be  idlotted.  The  same  |iriuci|iles  are 
reeomd/ed  and  acted  on  in  this  country. 
See  Amos  i'.  Amos,  4  N.  J.  Ch.  17i,  whore 


it  was  held  that  an  allowance  shoiiM  not 
be  imide  on  uecoiint  of  the  children  whtH 
theij  ur.rc  grown  up.  And  as  to  the  mat- 
ter Vtein'i  one  of  judicial  discretion  its  in 
Kngla;iil,  III  be  exeivised  Wlih  refereiiie  to 
the  facts  of  the  ease  in  K'''i"'i"^'  ahinni ;,, 
.see  MctJce  v.  Mcdee,  lu  (ia.  477;  'ii'r- 
mond  i\  Oenuond,  4  I'ai^re  Cu.  t!4:!;  Law- 
rence V.  I,;iwicnce,  ;;  I'aijie  C'li.  •Jo? ; 
Fishli  c.  Fi.shli,  -J  Litt.  (Ky.)  L':i7 ;  Ihuiis 
V.  Duvis,  1  Ala.  2.'.!t. 

In  Iteavis  r.  Reavis,  1  Scan..  (111.)  •24'J, 
the  (U'der  was  that  there  should  he  ilinwi'd 
yeaily  such  "alimony"  for  the  wite  mid 
her  child  as  the  cvideiiee  should  .shuw,  from 
the  circum.slances  >f  the  paitie.-,  ti>  U- tit. 
reasonable,  and  Jus  :  the  llliiinis  statute 
lieiuf,'  on  the  pKJnt  "  -inie  in  suKstaiice 
as  that  of  C'oliuecti  >l  X\\<\  see  Hickeii 
i\  hicki'U,  :iN  (ill.  (!i),>  ;  U'aldrnii  r.  Wal- 
dron.  .-1.-.  Pa.  St.  2;!1  ;  .lollilf  c  .Inllitf,  .32 
111.  Wll  ;  l'.er;,'cn  v.  lieifjcn.  22  111.  1-7; 
Foote  V.  Foote,  [!>.  42.'i  ;  .Marker  v.  .Marker, 
11  N.  J.  Kii.  2.'.i)  ;  Nicely  c.  Ni.dy,  3 
Head  (Teiin.),  18  t  ;  Tllolllp^oll  v.  Tliiiiii|'- 

.son.    10  Hie'l.   K,l.  (,S.  (    .)    Jlti.      Ill   lle.lellr 

licdell,  1  .iohi.s.  ell.  tiol,  Chaiicelloi  K>'ir; 
f,'iautcd  the  cu>tody  and  caic  df  a  diiliiof 
six  years  old  to  i'cr  mother,  and  ;,'iaiitiMl  u 
aliuioiiy  for  the  niaiiilcnancc  of  the  iiintlirr 
aiul  her  child  the  whole  of  the  ihreu'lints 
ini'ome.  It  is  laid  down  in  IlicliiiKinil  r. 
liiehmoud,  2  N.  ,1.  Cli.  '.m,  n;!,  hy  Ciian- 
eellor  I'eiininuton,  as  a  luiiiciplc.  lliit  the 
court  in  placing'  the  childieii  uicler  tlio 
cl'.arge  iif  their  mother  means  to  iiiiiK»e 
no  bunh'iis  u|ion  her  of  a  peciiniarv  eliar- 
acter  ;  but,  whatever  rules  may  nSl.iiii  ;i> 
to  the  allowance  lor  the  wile,  tiie  i  liiMren 
sliould  Ih  fully  maintained  in  a  iii.itiiuT 
corresponding'  with  the  condiii.iii  in  life 
ol  their  father.  On  the  whole,  we  tliiiik 
liazeley  V.  Folder,  I..  1!.  :t  <^  H.  :>:>\\  was 
eoirectly  decided,  and  that,  cii  the  siiine 
and  only  |iiiuciple  on  which  wi  lliiiik  it 
can  l«'  sustained,  the  three  .\meiii  ,iM  cisfi 
We  h.ive  examined  in  connection  with  it 
an;  also  .sound  law. 
'  1  Y.  &J.601. 


r\ 


;.y ,..' 


(lll.)'24i 

will'  lltld 

illllW,  fiuiu 

,  to  lie  tit. 

)is  statute 

sllll.^tau^.■e 

IV  liii'ki-ii 

1,  V.  Wal- 

lolliti;  ■)•! 

111.  b7; 

•.  Maik.r, 

Nirily,  'i 

'.  Tliiiniii- 

1  r..'.|.-llr. 

11,11  K.'ii. 

ll,l,ll^l.i!' 

rant'  1  ;is 
,'  i,i<>thrr 
lll'll'i  lilt's 
lilii'iiul  I', 
liv  ("liaii- 
,  ilnt  the 
ni'liT  till' 


liilitaiii  :» 
|i  ( hililren 

iiialitur 
■  ill  in  lil'' 
Iwv  tliii'k 

.'i',',  was 
I  till'  ^aiiii' 

Ihilik  it 
li.'.lll  I'  ist'« 

In  \vill>  i' 


PART  in.] 


MARRIED  WOMEN. 


187 


(iixtccn  Years  before  on  account  of  his  ill-iisaf»c  of  her,  from  the 
effects  of  whicli  slio  was  still  sufferinj? ;  and  slio  had  then  lately 
received  piirish  relief  «nd  was  still  chargcai)le.'  The  hiisl)and  had 
not  cuiitrihuted  to  her  support  diirinj^  the  separation,  but  had  ap- 
iilied  to  her  to  return  to  cohabitation.  At  the  hearini^  ho  ottered  to 
rcei'ive  licr  back  at  his  house,  and  promised  not  to  ill-use  her, 
l!iit  she  refused  to  return  on  account  of  the  brut  ility  she  had  pre- 
viously received.  The  justices  were  satisfied  by  evidence  that  it 
was  ihin,L,a'rous  to  the  health  of  the  wife  to  n^-turn  to  cohabitation  ; 
ami  tliey  made  an  order  on  the  husband  to  pay  a  weekly  sum 
towards  the  reliei'  of  the  wife.  On  appeal  from  this  order,  the 
Court  of  (Queen's  IJcnch  held  that  the  order  w?.s  rit^htly  made, 
iiotwiliistimding  the  husband's  ofYer;  as  the  (jue.^tion  (just  as  at 
coiuMiDii  law  it  would  be  for  the  jury)  was  for  the  justices  to 
liccitli'  whether  or  not  the  wife  was  justified  in  leaving,  and,  not- 
witiistauding  the  husband's  offer,  refusing  to  rctuiu  to  her  hus- 
liaiid;  and  that,  in  ett'ect,  they  had  found  that  she  was  justified. 
Klaisagan  r.  l>ishopwearmouth  ^  was  relied  on  by  the  counsel  for 
till'  a|i]M'llant,  but  as  that  was  decided  under  the  Vagrant  Act, 
making  a  man  punishable  for  refusing  to  support  his  wife,  an  otTer 
to  iiitiiii'ain  her  at  home  would  prevent  a  conviction  under  that 
Oft  i'lir ''  refusing"  to  maintain  her,  and  that  case  was  held  to  have 
110  application  to  this.  Although  in  the  judgment  of  Cockl)urn, 
C.  J.,  there  are  some  not  well-considered  sentences  which,  isolated 
f.-uiu  their  context,  would  imply  otherwise,  the  general  trend  of  his 
jiuiginciif,  as  well  as  that  of  his  colleagues,  is  that,  when  a  wife 
troiu  ill-usage  by  her  husband  justifiably  leaves  him,  liis  mere 
olTer  to  rect'ive  her  back  need  not  necessarily  be  accepted  by  }':r; 
Ijiit  on  her  refusal  to  return,  the  continued  liability  of  theV..iSband 
will  (l('|)eJid  upon  the  fact  whether  or  not  the  wife  could  safely 
ntiiiii.  —  a  matter  which,  imder  the  act  named,  and  at  common  law, 
would  be  K'spcctively  for  the  justices  and  the  jury  to  determine.'^ 


'  It  lias  U'l'ii  lu'lil  tlmt  a  Wdinan  i<  imt 
"i'liar;:ialili'  "  to  tlio  purisli,  wliiTi'  slu'  lias 
a  hiiiiii'  til  ri'tiini  to,  or  otln-r  iiii'iins  of 
Mi|il>i>it.  Si'i-  i  liuiiis'  Inst.  'ilt'J  ;  Ut'x  V. 
Fhiilaii.  1  H.  &  A.I.  '1-n  ;  .Sweclu'V  i'. 
SjMMiii,  I,  a  H.  .V  S.  ;j-JS»  ;  Carf,'ill  r.  »"ar- 
«ill,  1  Sw.  K  Tr.  235  ;  '17  L.  .1.  V.  &  M. 

ou. 

'  8  v..  Si  n.  451  ;  27  L.  J.  M.  (\  46. 

•'  The  liiM'  ot  llorwood  r.  Ilcircr.  3 
Tiiiiiit.  421,  has  Im'1'11  rt'innliatcd  ii)  tliU 
I'nmitiy  nil  till'  jioiiit  ill  whii'li  Kinciy  »'. 
KiiiiTv,  1  Y.  &  .1.  501,  (lisaj^ivcs  with"  it, 
nt  i'iii|iliatiially  as  it  lias  ln'cii  in  Kii>;- 
lainl.  Aiul  lici'i',  as  tht'l't',  llofwood  »». 
Hi'll'iT  ha.i    bt'cn   di'iiuuiiccd   us  not  law. 


Si'i'  Rlowcrs  I'.  Stiiiti'vaiit,  4  Dciiio,  4(1  ; 
lies tUi's  v.  Kiiiliinis,  8  '.'wa,  51,  54. 
iiul  wliili'  tliis  is  till'  lasi  with  ri';,'aiil  to 
lioi-wooil  V.  Ijitl'i'i',  wr  kii  >w  of  no  caso, 
citlHT  ill  KiiKlaiiil  or  ill  this  i-oiintiy,  «  lici'o 
Kiiii'iy  ('.  Knii'iy,  on  tlir  jmiiit  mi  wliicii 
it  lines  not  ilill'iT  trolll  lloiwooil  r.  lli'H'cr, 
lias  hi'i'ii  cxjirfsiily  ovi'IiiiIimI  or  iviiuiliati'il. 
As  wi'  li.ivi'  iHiiiitcil  out.  till'  (li'siTvcilly 
coiiiloiniii'il  (li'i'isioii  of  lIorwiMid  r.  llrdiT 
is,  in  its  way,  while  iinsiminl,  really  lesH 
illo>;ieally  nnsoiiiid  than  the  ease  of  Kini'ry 
r.  Kiiiery.  .And,  as  wo  have  seen,  though 
Kiiiery  r.  F.niery  has  not  heen  expressly 
overruled  in  Kii^IhikI,  on  the  jmint  on 
which  it  i^  wrong,  it  haa  not  heen  lollowi'd 


;»: 


n  w 


<S  1% 


m 


!      ! 


V{  ] 


188 


COMMENTARIES  ON  SALES. 


BOOK  11. 


Where  husband  and  wife  separate  by  mutual  consent,  the  wifo 
making  hor  own  terras  as  to  her  income,  and  that  income  prove!) 


there,  but,  in  ciruct,  has  been  overruled. 
HfW,  too,  iiotwit!i.staiidin^  tlie  manner  in 
will  :h  it  h.'iH  l)een  cited  by  tlie  great  liody 
of  the  Anicrienn  text-writers,  witliout  dis- 
ttI>|irobiiti:>n  (ir  exposure  of  the  fallacy  on 
which  it  is  bas^d  ;  while  we  cannot  find 
that  it  has  been  expressly  repudiated  in 
any  Aiiu'iicau  e.iso,  we  lire  ipute  salislied 
that  it  has  never  been  followed  by  any 
case  (lecidctl  in  this  country  ;  and  numer- 
ous cnsi's  are,  and  t)i(!  whole  trend  of  the 
coses  all  over  this  ei.untry  is,  opposed  to 
the  wron^  lidldiny  in  Kniery  v.  lliuery. 
TliJ  ease  of  Wi.lker  v.  Laishton,  ai  N.  U. 
(VI  Kost. )  111  is  H  valiial)lo  one  ou  the 
subji'ot.  Ileie,  directly  contra  to  Kinery 
V.  Kniery,  it  was  held  that  tiie  hnsbiind 
who  has  eareli'ssly  deserted  his  wife  inav 
seek  a  ri'eoiiciliation,  and  if  the  wife, 
under  sii'di  einiiiustaiices,  refuses  to  live 
with  iiini  a>.'aiii  without  gooil  cause,  slie 
IxH'ouies  IViiin  liiat  time  the  partv  in  tho 
wriiij;,',  and  has  no  longer  any  authority  to 
pie(!<,'e  his  cri-dir,  even  for  necessaries, 
more  tlian  slie  would  have  had  if  she  had 
hers(  If  iirij-'iiially  left  him  without  eaiis.-. 
Inde|)endent  of  the  f{ro\uul3  of  the  decis- 
ion in  Kniery  i'.  Kniery,  the  actual  holdiii<r 
in  that  case,  on  the  facts  (sr.'  niilc,  p.  17'J 
et  *:'/.),  was  not  essentially  dilferent  from 
tlu!  hi(ldin<5  in  Wall<(  r  r.  Laighton,  wliere 
the  ffiuiMids  (if  llie  decision  are  uiniues- 
tional)ly  corrcit.  The  court  there  says  ; 
"But  it  is  olpjerted  that  the  evidence 
fails  here  to  shmv  any  wish  or  elfort  on 
the  [lart  of  the  li;isl<and,  in  fjood  faith,  to 

seek   a   !■ uieiliiition,    or    that    his  wife 

should  return  td  live  with  him  again,  and 
the  conversatiiiii  detween  him  and  his 
fiif.iily  is  ri'lii'ii  on  to  disprove  any  such 
wif'h  on  his  piuf.  This  is  the  same  con- 
versation, proved  on  the  part  of  tho 
de(i'!iil,int,  to  show  his  d(  sin;  for  a  rei'on- 
ciliatioii.  Wc  lia\e,  then  fore,  consiilricd 
with  care  whil  was  tlii'it  said,  aii.i  our 
conclusion  IS,  that  what  was  said  by  th'' 
liiisbtiid,  ou  that  occasion,  coinpletely 
ilisjifoves  any  >iiieeic  wish  that  his  wife 
and  da'u.'hti'i's  should  remove  to  h'n  resi- 
dunc"  to  live  with  him.  It  was  a  formal 
re<iuest  to  thi'm  to  t;o  t<>  his  house;  but  it 
waM  ai.  ■iiop.iiiied  Aiih  such  thr<'iiteMiuj» 
l»»Mf{H!,'e,  and  siicli  u'lreiwoTinble  cImuis 
a|H>n  tliiiii,  as  wrre  cii'.ciUated,  and,  .is  it 
■eeins  t<>  ns.  must  have  been  desi;;ned  to 
prevent  iln'ir  removal.  The  elVc.  t  of  tlie 
whoJK  cfiiiversaiion,  as  it  iinp'vsses  our 
minds,  is  rather  a  notice  to  them  imt  to 
conic  to  his  house,  a  threat  of  uii'h  lined 
evil,  if  they  diil  come,  nither  than  n  si:i- 
oere  invitation  t"  them  to  I'ome. "  The 
court  held  that  the  otfcr,  not  having  been 


made  in  good  faitii,  was  no  defemc  to  an 
action  for  necessaries  furnished sulis'iment 
to  the  conversation.  See  McCutilna  v. 
Mc(!ahay,  11  Johns.  '281  ;  McCaiiuy  v. 
Williams,  12. Johns.  :>!«. 

In  Calkins  ».  Long.  22  Barb.  '.'7,  lot?,  jt 
was  hi'ld,  where  there  was  an  a.Mei'iiii'iil  lot 
a  .se[(a  ration,  that,  unless  the  h'^m  cMniit  was 
for  a  separation  during  life,  if  the  iiissiininl 
olicr  to  take  back  his  wife  inid  to  iiiaia. 
tain  her,  it  puts  an  end  to  the  ugrii-Mi;'iit, 
and  a  court  of  eipiity  will  not  eiilon  r  the 
I)ayineiit  of  the  se|mrate  allowanc.'  tn  the 
wife.  The  principle  on  vvhiidi  tli.'  Bnnnl 
of  ,Su]H'rvisors,  etc.  v.  Bndlong,  ."il  Uarli 
41^1,  was  dc'-ided,  is,  that  the  hiisl^ijiig 
liability  for  neeessarics  provided  hy  otbtr 
persons  for  his  wife's  support,  n'sis  en- 
tircly  upon  the  ground  of  his  iii'<.'leet  or 
(lel'.uiit.  Erg,),  when  this  iieglei  t  or  ih- 
fault  ceascK,  the  liability  .vould  i  cusi'.  .So, 
in  the-  i'V'oph!  V.  Niiehr,'  Ho  Iluu  (N'.  Y.|, 
4t)l,  the  folli)win<f  arc  laid  ilown  as  tuiuhi- 
mental  rules:  The  wife  is  entillil  to 
rea.-.on,ible  support  by  the  husband.  It  is 
her  duty  as  well  as  right  to  live  with  i,im 
in  such  proper  place  as  he  provides.  He 
is  entitled  to  determine  not  oiilv  !he 
place,  but  their  style  of  living,  and  it  i^ 
her  plain  duty  to  foUo'.v  him  wherever  his 
interest,  necessity,  or  rea.soniible  wish  may 
lead.  It  is  only  when  he  neglects  er  re- 
fu.ses  to  projK'rly  provide,  or  nialtieat-  her, 
or  is  guilty  of  infidelity  to  her,  that  slie  if 
justified  in  refusing  her  submission  to  his 
reasonable  reipiiieinents  in  this  respect. 
Here  again  his  liability  is  strictly  guverned 
by  the  actual  neccssilies  of  the  case;  tht' 
liability,  of  course,  detenniiiing  wiili  the 
necessity.  See,  also,  where  siuiil.ir  iiiiiicj- 
pies  are  laid  down,  Riown  r.  Mu'leetf,  fO 
Vt.  t)8  ;  Nm-eross  v.  Ilodgers,  :5o  Vi.  .'88; 
Kv.iiis  1'.  Fisher,  5  (Wlinan  illl.),  .''iii;i;  Allen 
r.  Aldrich,  29  X.  II.  M  In  l.in.leii^rhiiiiilt 
e  l.inder.schniidt,  ".",>  Mo.  Ap)i.  ■^\>'<,  wherf 
dilfcrenees  t<)ok  ]da(  e  lietwceii  a  hii^'inml 
and  wife,  and  a  separation  with  lii^  con. 
sent,  it  was  hehl  that  he  was  lial.le  fiirliiT 
support,  but,  expressly,  tli.it  sneli  lialiil- 
ilv  Wi  old  cease,  on  her  refiisiil  to  liUini, 
after  a  h(»i<t  Jiilc  otfer  liy  him  to  le.i'iv*' 
and  support  her.  Sec  |)wver  »•  M- 
2f,  Mo.    rtSa.      In    M.i;ahay'  r. 

12  .lohns.  '2!i:t,  th int  held  th.        .i  > 

man  leavi's  her  husband  and  livi^  ■^••y.i- 
rately  from  him,  he  is  not  liabl.'  to  hrr 
contracts  for  in»eeM.*iiries,  aJtuoiigli  tli' 
person  giving  <rw'.A  to  her  ilm-s  nut  know 
of  the  elopement  ,  lait  if  she  olfeis  to  re> 
tniii,  and  her  Ir.isli.ind  r-fuse-  lo  ivcei^'e 
her,  his  lii.bilify  to  her  cmtrniH  fet  iiei'»- 
sarics  revive*  from  that  time,     Tlie  con- 


PART  IIT.] 


MARRIED  WOMRN. 


189 


insuffioiont  for  her  wipport,  the  wife  has  no  authority  to  pledge 
Iicr  !iiisi)iintr3  credit.^ 

Ill  EaHtiand  v.  Uurclicll,  the  defendants  —  linsband  and  wife  — 
cxociitcii  a  deed  of  separation,  by  the  terms  of  wliieh  the  wife  re- 
taiiicii  tlio  income  of  jnopcrty  settled  to  lier  separate  nse  '»n  lier 
marriirt',  which  bronyht  her  iji  i-:i!)7  15*.  2r7„  per  annum.  The 
iiusldiiKl  eovciiunted  to  pny  her  i.'20  a  year  towards  the  miiinte- 
naiu'i'  of  three  of  the  children  of  tlic  marriujxe,  and  the  wife  cove- 
muitvd  to  maintain  tiiesc  children  until  they  were  twenty-one,  and 
jioi  ti«  ii|tply  to  her  husband  fur  further  assistance.  Tlie  husband 
Ivvl  kept  u]»  tlie  annual  payment  of  £'20  in  aceordancf  with  the 
ientH  of  the  lieed,  Plaiiitiff  sued  dcbjiidants  in  the  county  court 
h  recover  the  price  of  meat  supplied  to  the  wife  after  the  separa- 
tion, and  the  jnd;i;e  at  the  trial,  on  hearin<,'  the  wife's  evidrnco, 
found  that  her  income  was  insuHieient  ior  her  support,  and  rided 
tliat  she  hail  authority  to  pledi^e  her  husband's  credit  for  ih<>  iiriee 
of  tlie  jneat.  On  aj)peal  to  the  Queen's  Bench  Division,  the  de- 
cifiion  v/aa  reversed.^ 


vcrsf  of  il'.i'*  propos'  Ijji  is  clearly,  eqnnlly 
corriv'.  Si-c  Mi-rutflicn  r.  McfJaliny, 
Ti.Iiilip-  SSI.  So  in  CliMu  lit  r.  .Mii;'i- 
son.  ■!  Itifli.  (S.  C.)  I'S,  it  wiw  licM.  that 
;i  will',  not  iiavinji  li^t-n  ftiiilty  of  mlulti'iy, 
wt'iitiiimi.-cil  \vil!i  I  liiis'.mtnl's  cri'ilit  for  iii'- 
cessii/ns,  (!)«ii'''i '"'  li'nl  trctttcil  licrwifii 
naridii.  ,'iriiiM;i;li  no  may  not  imvt'  (li'siivil 
tocspi'l  Iht  !'iiii!i  Ills  !>ouMc  ;  (•_')  wlion  In' 
liiiii  I'.iiviii  liiT  away,  intcmUiiK  to  cxi'c'i 
hiT ;  iiiii  i'i)  wli'i!  he  liiiil  '.('fiiscil  lo  iC' 
"••vr  her  \i|)(it)  lioi  '■ftiirii  altlioiif^li  she 
inav  have  ili'imrtfil  wiilioiit  ciiusi',  Sc(,' 
Hoiits  r.  Ho, Its,  17  Ml.  App.  i'M,  wlicri! 
a  wife  nfiisiil  to  "'ivc  v  itli  lu-r  laisliainl, 
(III  a  ii(iii:1  fiilf  ,','cnip;.,t  from  him,  ain! 
lii-r  apjilii' ition,  iiinlcr  n  statiilt'  of  tlic 
Stat-.-,  I'lr  scjiar'ti'  :iia'iitPtian''<',  wns  ih- 
iiiol.  In  California,  hy  mcc.  175  of  the 
Civil  ("ui!i>,  it  is  proviihvl  tlint  »  hiishiunl 
nh>!iiioniil  hy  Ills  \\\U'  is  im*  liuhlc  Tir  luT 
Mi]i(inrt  until  she  •iH'iTM  to  return,  iinU'-^s 
nil"  Viiw  ji  ti)U't|,  hy  hJR  tu'sroiiiiu.t,  in 
abiinil<'iiliiv'  hiui ;  nor  \f  \\o  hahlc  for  h^'i 
.s;i].|:<:r!  »u>'n  she  is  livift({  lV<i;n  him  hy 
»CT«'iiiii;,  \in!i'ss  snili  support  l^*  >ii|>ii- 
IrttP't  ni  the  iiirri'tnii'nt.  Sec,  iimlvr  thi-* 
■iiNMin'i,  .hi.  ..hs  f.  Si'ott,  ft^J  C;il.  74  ; 
Himv  V.  S;iiL'i'iit,  .14  V,i\\.  3i»«  ;  Nimhph  r 
Itcrnlivs,  11.  ti^i  Cil.  ;"ij1. 

'  Ka^fl.iKl  i>,  It«,r,l..,.ll,  .'1  Q.  n.  I),  4TJ. 

'  l.ii>ii,  .'.,  in  ilijivrring  the  |ii<lj;nii'iit 
"'  tlii'd;  >,  thus  laid  down  the  iawiippli- 
i-ahlp  i;i  ill,.  ('Use:  -''rhc  niittioritv  of  a 
*ifc  t'l  |il.iljr(.  till'  credit  of  her  hushand  is 
'  'leitpi'id,  not  an    inherent,    atitliority. 

tiie  -inds  j'iin,  .<<('«'  hinds  hitii  oid\  as 
iM  aj^ut.     This  in  a  wvll-estaMishnt  doe. 


trine.  If  ."lie  Icavptj  liim  withont  e.inw 
nnd  without  eonsent,  she  entries  no  iia 
jilied  aiiiliority  with  her  to  maintain  h.er- 
Kell  at  his  expense.  Hut,  if  he  \Mo!i;;fiillv 
compels  her  to  leave  his  hc^iiie,  he  i-.  iionud 
to  niailitaili  her  elsewhere,  aiiii  if  lie  nnikes 
no  ade<|Uate  pidvision  (or  this  purpose, 
she  heennies  an  af;ent  of  lieeessily  to  s\ip. 
I'ly  her  Wants  upon  his  credit.  In  -ueh  a 
ea.se,  inasniueli  as  .she  is  entiijeil  to  u 
jiiovision  siiitahle  to  her  l.ii-lMiid'.s  -neaiis 
»nd  ]iositi(>n,  thi-  ^utli'iemv  of  any  allow- 
.nice  whieli  he  makes  under  ihese  cireniii- 
stanc'-i  is  necessarily  a  'ine.stioi'  for  the 
jury.  Where,  how<'»ei,  the  parties  kv\v\- 
r.ite  hy  mutual  consent,  they  may  nrnke 
their  own  terms :  and  so  I'.nj^  ha  tht'y 
continui'  ihe  separatior,  these  terms  »re 
l)iiidinf{  on  hoth  Where  the  terms  are, 
IIS  ill  this  ca.se,  that  the  wil.  -.hall  receive 
a  specified  in<ome  for  In  r  maintenance, 
and  s'liiU  I'll!  ajiplx  to  the  liii.'-hiind  for 
anrthiiij;  i;;(re,  how  <;iiii  any  authority  to 
elailll  moll  he  inipMcd  '  ll  is  e.Xrluded  by 
th.' express  terms  of  the  airaii;.'eiiient.  It 
is  ohvioii^ly  iiMtnatcii.d  whillni  the  in- 
come is  dellViil  llolii  the  \Mh  s  scpiiiatf 
propri'fy  or  from  the  allowance  of  the 
iiMshiind,  or  partly  from  one  source  ami 
liiirtly  fioiii  tlie  oiher.  It  i>  ei.oiij,di  that 
site    has   a    provision    which    si  ■    iiuieea 

to  accept  IIH  slllliiiiMlf .  She  ciTi;io(  avuil 
liersell  of  111  1  .Uushand's  coll*  yil  to  the 
se|Niri4'ioii,  which  alone  jiistihes  Imt  hi 
living;  apart  from  liim,  iiiid  repiiduito 
the  (ond'iion.s  upon  which  tiiat  consent 
^■iK  ^riv.'H.  And  it  Hcenis  supeiHiiMiis  tn 
add  that    uu   third    [M'rsoii    can    ciaim  tu 


u 


if' 

m 


tx 


;}  t 


190 


COMMENTARIES  ON  SALES. 


[book  II. 


Two  questions  in  connection  with  the  agency  of  a  married 
woman  came  up,  and  were  decided  in  Drew  v.  Nunn  '  in  the 
Court  of  A|)[)cal.  These  were,  first,  as  to  the  effect  of  insanity 
in  revokiuj;  the  agency  ;  and  second,  as  to  the  limitation  of  such 
revocation  as  to  parties  continuing  to  deal  with  the  agent  with- 
out linov  lodge  by  them  of  the  principal's  insanity.  The  plaintiff 
was  a  tradesman,  and  the  defendant  had  given  his  wife  autiior- 
ity  to  deal  with  the  plaintiff,  and  had  held  her  out  as  his  a<,'eMt, 
and  as  entitled  to  pledge  his  credit.  Afterwards  the  defondaiit 
became  insane,  and  whilst  his  malady  lasted,  his  wife  ur<l(>red 
goods  from  the  plaintiff,  who  accordingly  supplied  them.  At  the 
time  of  supplying  the  goods,  the  plaintiff'  was  unaware  that  tlie 
defendant  liad  become  insane.  The  defendant  afterwards  recov- 
ered his  reason,  and  then  refused  to  pay  for  the  goods  supplied  to 
his  wife  by  tlie  {)laintiff.  On  tiie  two  (piestions  arising'  in  the 
case,  the  Court  of  Appeal  decided  that  insanity  does  rcvoki;  the 
agency ;  but  tliat,  in  the  absence  of  knowledge  or  notice  of  the 
insanity  on  the  part  of  those  to  whom  the  agent  had  been  licld  out 
as  such  by  the  principal,  the  authority  to  trust  the  agent  was  con- 
tinued, and  that,  therefore,  in  this  case,  the  plaintiff  was  entitled 
to  recover.^ 


disturb  the  nrrangrmont  mailo  between 
tbo  husband  and  the  wiCc,  and  to  way  that 
ho  will,  Ity  suii|)lyin;{  goods  to  the  wife  ou 
credit,  compel  tlie  husbiind  to  nay  more 
than  the  wife  could  have  clainicil,  that  is, 
the  stipulateil  allowance.  He  can  derive 
no  authority  from  the  wife  whirh  she  is 
incoinpi'tent  to  give."  See  llodgkiuson 
V.  Fli'tclior,  4  I'anipb.  70;  Hunt  v.  Dc 
BliHiuiere,  5  Hing.  .OoO  ;  Nursi!  t'.  t'raig, 
•2  B.  &  P.  N.  I{.  148  ;  .rohuston  v.  S\inincV, 
a  H.  &  N.  2<!l;  ihlhu  r.  Bigiudl,  7  H.  & 
N.  877  ;  Hcale  v.  .\niliin,  M  L.  T.  341). 

The  law  on  the  subjert  is  the  saine 
under  the  di'ei.sious  in  this  country.  See 
Joyce  V.  McAvoy,  31  ('a!.  273  ;  UotH'rtson 
1'.  Robertson,  25  Iowa,  3.iO ;  I^iud  v. 
Loud,  4  Ihisii  (Kv.),  4.^.3;  Calkins  r. 
Long,  22  Marl..  '.t7  ;"  Bettle  v.  Wilson,  14 
Ohi..,  2:.7  ;  Uuckncr  v.  Uuth,  13  Hieh, 
(8.  <\)  1.17  ;  H:iker  r.  < 'ooiM^r,  7  S.  &  K. 
(■)Ofl  ;  LchiU-  V.  Beaver,  8  W.  &  .S.  102  ; 
MeCubbin  V.  ratterson,  IC  Md.  17i» ;  ("ar- 
son V.  Murray,  3  Paige  (N.  Y.),  4S3  ; 
Pii^ket  r.  .ii.liMs,  1  Dev.  (N.  ( '. )  423; 
Thomas  c.  Brown,  10  Ohio,  247;  Dil- 
lingei's  Ajipr'al,  35  Pa.  357  ;  Hitncr's 
Appeal.  :.4  I'.i.  110. 

»   4  t^.   B.   I).  Otll. 

*  In  tlie  discussion  of  the  first  of  theue 
two  points,  Urctt,  L.  .1.,  says  :  "If  such 
insanirv  as  existed  here  did  not  put  an  end 
to  the  ageiitii  authority,  U  would  be  clear 


that  tho  plaintiir  is  entitled  to  suif ood ; 
but,  ill  tny  opinion,  insanity  of  this  kiml 
does  put  an  eiul  to  the  agent's  aullinrity. 
It  cannot  lie  disputed  that  houw  las-'sof 
change  of  status  in  tiie  principal  put  an 
end  to  the  authority  of  the  a;,'iiil  ;  tlub, 
the  bankruiitcy  and  death  nf  tlie  piiinipil; 
the  marriage  of  a  I'einale  )iriui'ipal,  all  |iiii 
an  end  to  the  authority  of  tln'  nifi'iit.  it 
may  bo  argued  that  this  result  t'cillnw^ 
from  the  circumstauci'  that  a  iliU'rciit 
principal  is  created,  rpoii  binikiiiptov 
tho  trustee  becomes  the  piimipal ;  u|«m 
death  the  heir  or  devisee  as  to  realty, 
tho  executor  or  admiiiistratur  as  tDpirxin- 
alty  ;  and  upon  the  inarria^'e  nl'  a  IViiiali' 
princii>nl  her  husband  takes  licr  place. 
And  it  hna  been  argued  that  by  aiiaiiijjy 
the  lunatic  continues  liable  \iiiiil  a  fresh 
)irineipal,  naniely,  his  eumniitiec,  is  aii- 
pointed.  But  1  cannot  think  tliattliUi* 
the  true  ground,  fur  exeriitors  are,  at  It'.is' 
in  some  instances,  bc.uiid  to  canv  mit  tin- 
contracts  entered  into  by  their  testators. 
I  think  that  the  .satisfactory  I'liiicijilt!  t" 
be  adopted  is  that,  where  sue  li  a  clianif'* 
occurs  as  to  the  principal  that  lie  can  no 
longer  act  for  himself,  the  agent  wlmm  h* 
h;w  appointed  can  no  longer  :ict  I'nr  him 
in  the  present  case  a  great  chaiifji'  !ii"l 
ot.'currcil  in  the  condition  (4'  the  piiii''i|iul ; 
he  was  so  far  allccted  with  tii.s.niity  as  to 
be  disabled  from  acting  for  himsell ;  there- 


PAVT  III.] 


MARRIED  WOMEN. 


191 


In  an  action  against  a  husband  for  necessaries  supplied  to  his 
wife,  it  appeared  that  the  wife  had  committed  adultery  with  the 


fiire  liis  wife,  who  was  his  ajjeiit,  could 
no  loiigiT  mt  for  him.  Upon  the  ground 
whiili  1  i>'>vi'  iiointfd  out,  I  t)iiiik  that 
her  iiiitliiiritv  was  teriaiiiiitcd.  It  sccnis 
to  nil  lli:it  all  agent  is  liabh;  to  b«!  HUi'd 
bv  II  third  jMisiiii,  it'  hit  ns.sunicH  to  iii't  on 
hi.'*  priiKil'iil's  liohalf  alter  lie  iiad  knowl- 
i»|i,w  iif  liis  iiriiii'ipals  inconipeteiiey  to 
Alt.  Ill  a  (iiM-  of  tiiat  kind  he  is  acting 
wrorifjlally.  The  di-feiidant's  wife  must  Ins 
tikcii  to  iiavi'  iM'eii  aware  of  her  liusliand'H 
iiin:ii'V  :  and  if  she  had  assumed  to  act  on 
his  Ix'li.iir  witli  any  onn  to  whom  lie  hiiii- 
s.'li'  li:el  not  lield  her  out  as  his  iit'eiit,  «ii« 
woalil  liave  tieeii  iietiuj?  vvrongf\illy,  and, 
lint  till  the  eiti'umstaiie(!  that  siie  iii 
iiianiel,  woiiM  huve  Ix'en  lialilo  in  an 
!ii;tliiu  to  eoin|ielisate  the  pL'tsou  witli 
uliMtii  sde  assumed  to  lU't  oil  her  hus- 
tianil'>  III  lialf.     In  my  o|iinion,  if  n  jiersoii 

ullii  ll.is  not  heeli  held  out  IIH  ll^ellt  IIS- 
siinies  to  ait  on  helialf  of  a  luiiatie,  the 
(iiiitr.iit  is  V'liil  •  rtfjainst  the  .sui)|i(ised 
)iiiiiii|iul,  and  tlie  ju'etended  aj;ent  is 
tiaiili'  to  an  aetioii  for  niisloudin;;  iiit  in- 

llWI'll!    IMTSDII.' 

I  Ml  till'  (illirr  (luestion,  the  same  learned 
juilK''  S'lys  :  "As  iH'tttet'ii  the  defendant 
iliwl  his  wife,  the  iii^eiicy  expired  n]ii)ti  Ids 
bcKiiiiiiii;  to  her  knowledge  in.sane  ;  but 
it  si'iiii-,  to  nie  that  tlie  peison  dealiii({ 
witll  the  :\iir\]\  without    kir)W  ledge  of  tllO 

prii)i  ii'ids  in-aiiity  his  a  liylit  to  voter  into 
a  I'litiii'i' t  witii  liim,  and  the  prineipal, 
altiioiii^li  a  luiiatie.  is  Ixiiind  so  that  he 
i-aiiii'it  repudiate  the  e.uitraet  assumed  to 
be  iiiaiii'  ii[>iiii  liis  Ixdialf.  It  is  didiciilt  to 
a.ssii;nllii'j;n>iiMii  upon  whiehfhisdnetriue, 
wliirli  liiiwi'ViT  seems  to  me  to  )>o  the  tr 
]iriiii'i|.li',  exists.  It  is  saiii  that  the  rigl  • 
tdhnlil  the  insane  principal  liable  depends 
niicin  n.iili'ii  1.  I  have  a  ditlieiilty  in  as- 
seiitiiis;  lu  this.  It  has  been  said  alsn  that 
tlieri^'hf  ilepi'uds  upiill  estoppel.  !  ■.■aiiuot 
see  that  an  estoppel  is  eieated.  IJut  it 
has  iH-eii  said  also  tli.it  the  ri^^lit  depends 
tipoa  ri']ire.se-ii.itions  made  by  the  piiu- 
I'ipal  mill  eiititHiig  third  persons  to  act 
u|Kii,  tiiein,  nniil  ihey  hear  that  those  rep- 
r-'seiitatiniis  are  withdrawn.  The  author- 
ities enUected  in  .Sloiy  on  Agency,  ch.  18, 
s'''\  4Hi,  p.  <!lii  (7tli  I'd.),  .seem  to  base 
|lii'ri;,'lit  upon  the  ground  oi'pulilii-  policy; 
it  i<  there  said  in  elb'ct  that  the  existence 
'II  the  rii,'iil  1,'oes  ill  aid  of  public  busiiiess. 

(f 
n 


It  is,  however,  a  better  way  of  stating  the 


nile  to  sny  that  the  holding  out  of  anotlivr 
person  as  agent  is  r.  representation  Ujion 
which,  at  the  tinii.  whtu  it  was  iiiiide, 
third  parties  had  n.  right  to  act.  In  this 
ca.se  the  wife  wa'.  held  out  as  agent,  and 
the  plaintiir  acted  upju  the  defendant's 
representation  as  to  her  authority  withnnt 
notice  that  it  had  Iwen  withdrawn.  Tlio 
def>;ndaiit  e.innot  escape  from  the  con- 
seiiuences  of  the  representation  which  ho 
has  made  ;  hi.  cannot  withdraw  the  agent's 
authority  as  to  third  jiersons  without  giv- 
ing them  notice  of  the  withdniwal.  The 
principal  is  bound,  although  he  retmctsihe 
agent's  authority,  if  he  has  not  given  notice 
and  the  latter  wr  JUgfully  enters  into  a  con- 
tract upon  his  iH'half.  The  defendant  h*-. 
came  insane  and  vsm  unable  to  withdraw 
the  authority  whicl>  he  had  conferred  ui>on 
his  wife  ;  he  may  Im-  i.\n  innoeeiit  sulferer  by 
her  conduct;  but  th.'  ))laintill',  who  deati 
with  her  bund  fiile,  i.s  also  innocent,  o:id 
whore  one  of  two  persons,  both  innci-eiit, 
sutlers  by  the  wrongful  .;ct  of  a  thiol 
person,  that  imtsoii  making  the  repreiien- 
tation  which,  as  between  the  two,  was  the 
original  cause  of  the  mischief,  must  Im;  the 
siillerer  and  must  In-ar  the  loss.  Hi  re  it 
docs  not  lie  in  the  defendant's  mouth  to 
.say  that  the  plaiutilV  shall  lie  the  stdferer. 
.•\  ililliculty  may  arise  in  the  c.pplication  of 
a  general  jirinciple  such  as  this.  .Suppose 
that  a  jier.son  makes  a  rcprcseiilation 
which  after  his  death  is  acted  upon  by 
another  in  ignorance  that  his  death  has 
hap|N'Ued  :  iii  niy  view  the  estate  of  the 
deceased  will  be  bound  tii  make  good  any 
loss  which  ii'ay  have  oecuried  through 
acting  U|Kin  that  representation.  It  is, 
howeier,  unnecessarv ,  to  deiide  thi.s  point 
to-day.  rpon  the  ;;ioiiiiils  uIhivc  stated  I 
am  of  opinion  that,  although  t!ie  autlioi- 
•ty  of  the  delendant's  wile  was  put  an 
end  to  by  his  iiis.inity,  and  alliioui:!'  she 
hail  no  aiitbiirity  to  ib-al  with  the  |ilaii  ulf, 
111  veltheliss  the  latter  is  entitled  In  re- 
cover, because  the  deleiidaut.  whilst  hts 
was  sane,  mado  reprcsi'iitations  to  tlh- 
pluintilf  upon  which  be  was  entitled  fci 
act  until  he  had  notice  of  the  defeiidaMH 
insanity,  and  he  bad  no  notice  of  the  i»- 
sanity  until  alter  he  had  supplied  tht 
goods  lor  the  price  for  wlii'  li  lii-  now  sues." 
And  see,  on  the  same  [loiiit^,  I! van  c. 
.Sams,  1-J  (}.  15.  »i;o  ;  i:  1  .1.  •,>.  15.'  'JTl  ; 
JJrownc    V.   .loddidl.    Moo.    &    .M.    1«»5  , 


!  r 


■S!  .'  ' 


•  "  Voii! "  is  here   again   u.sed   where  ho  could    iffirm  it.     The  contracts  of  a 

''mIv  voidable    is  meant.      If  void   there  lunatic,  like  those  of  an  nilant,  or  drunk- 

■Hii'.i  b<'  no  i|uestio!i  as  to  "repudiating  ard,  at  common  law,  are   voidublu  and  uot 

till'  cotitnn.t.  "    If  he  could  repudiuta  it,  void.     Secaa/t,  p.  14(1,  note. 


192 


COMMENTARIES  ON  SALES. 


[book  II. 


rif 


connivance  of  hoi  husband,  and  the  husband  subsequently  turned 
her  out  of  doors  ;  that  she  had  no  means  of  support,  and  that  the 
plaiutiiT  supplied  her  with  necessaries  in  question  while  she  was 
living  separate  from  her  liusband.  The  Queen's  Hench  Division 
held,  under  the  maxim  volenti  non  Jit  injuria^  that  the  husband 
was  liable  for  the  necessaries  furnished.' 

An  order  having  been  obtained  in  Durrant  v.  Ricketts^  fur 
leave  to  sign  final  judgment  against  a  married  woman,  in  uu  action 
against  her  for  the  price  of  goods  supplied  to  her  during  coverture, 
but  living  apart  from  her  husband,  tlio  order  was  set  usido,  inas- 
much as  there  can  be  no  judgment  against  a  married  woman  per. 
Bonally  in  respect  of  such  a  claim;  but  un  order  was  made  for  an 
inquiry  as  to  her  separate  estate,  and  to  declare  that  it  was  charge- 
able for  the  goods  supplied.^ 


Rrtjctor  V.  Enrl  of  Portsmouth,  5  B.  &  C. 
170;  s.  c.  noin.  IJa;{ster  v.  Earl  of  Porta- 
nioiitli,  7  l>.  &  H.  «!U  ;  Moltoii  v.  Cmn- 
Toux  ,  2  Kx.  487  ;  Dhiil'  i>.  Viscountess 
Kirkwall,  8  C.  k  P.  (J7l> ;  Niell  v.  Morlcy, 
9  Ves.  478  ;  Stcnd  v.  Thornton,  3  B.  & 
Ad.  3.")7  n.  ;  Head  u.  lA'ffxnl,  6  Kx.  630  ; 
Davidson  <>.  Wood,  1  l)e  (J.  J.  k  S.  4(55  ; 
Jenncr  v  Morris,  3  Dn  (t.  F.  &  J.  45. 

Tho  a^fui^y  of  the  wife  of  a  lunatic  and 
the  authority  to  |ilt'dge  the  hushand's 
credit  ilo  not  dilftT  from  those  ordinarily 
implicil  from  tin;  relation  of  husband  and 
wife;  and  whcro  tiie  wife  receives  sulli- 
cient  money  for  all  necessary  iiur[>o.ses, 
incliidiuj^  nccesssjry  repairs  to  her  hus- 
band's house,  the  insane  husband  is  not 
liable  for  such  rejiairs  made  under  the 
directions  of  his  wife,  any  more  than  he 
would  be  if  sani-,  and  had  given  his  wife 
monoy,  ami  directed  her  to  give  the  orders 
for  the  re|iair.s  and  pay  for  them.  Uichard- 
son  V.  Dubois,  !-.  It.  5  Q.  B.  61.  See 
Mizen  V.  Pick,  3  M.  &  W.  471 ;  Baker  v. 
Barney,  8  .lohns.  72  ;  Fenner  v.  Lewis,  10 
Johns.  38  ;  .Mott  v.  Comstock,  8  Wend. 
644;  ('assy  v.  Patton,  2  Ash.  140. 

»  Wilson  V.  (}|osso|).  19  Q.  B.  D. 
379.  See  Uoliiuson  v.  (iosnold,  6  Mod. 
171:  (Joviir  v.  llaiieoek,  6  T.  K.  603; 
Morton  V.  Kazan,  1  M.  &  P.  '22t5 ;  Hunt  v. 
De  Hla'iuicre,  .5  Ping.  efiO ;  Cullcy  v. 
Charinan,  7  (,).  B.  I).  8i) ;  Cox  v.  Kitchin, 
1  B.  &  P.  338  ;  Harris  v.  Morris,  4  Ksp. 
41  ;  Mainwaring  i\  Leslie,  M.  &  M.  18; 
Drew  V.  Drew,  1  Notes  of  Keel.  ('as.  31,"i; 
Woodward  r.  Dowse,  10  (".  B.  N.  s.  722. 
In  Uobinson  e.  (Josnold,  (i  .Mod.  171,  Holt, 
V.  .1.,  is  iiuoted  as  saying :  "  Let  the 
woman  bo  ever  so  vicious,  yet  while  she 
will  cohabit  with  her  liusband  he  is  bound 
to  provide  necessaries  for  her,  and  is  liable 
to  the  actions  of  such  persons  as  furnish 
her  with  them;    for  his  bargain  was  to 


take  her  for  bettor  or  worse.  In  like 
manner  it  is  if  the  husband  turns  liis  wife 
away  for  her  wickcdnes.-,  ho  riMnaiiis  still 
ihargeable  for  her  necessaries.''  .Vml  in 
Manby  v.  Scott,  1  Keb.  tJl>  ;  Sid.  lu'J  ;  1 
Lev.  4,  Hale,  C.  B.,  says:  "  AU,,  if  the 
wile  cohabit  with  her  husband,  and  is 
ever  so  li.'wd,  he  shall  be  liable  for  licr 
maintenance  ;  for  he  took  her  for  U'ttcr 
for  worse  ;  so,  if  he  runs  away  from 
her,  or  turns  her  away,  or  I'oiics  her  by 
cruelty  or  ill  usage  to  go  away  tmiii  liiiii." 
Again,  in  Hunt  v.  |)e  Bla(|uiei<',  ,'<  lilng. 
650,  .''i57,  Best,  C.  J.,  says:  "  If  a  iiiun 
turns  his  wife  out  of  doors,  it  lias  Inch 
said  by  judge  afti.T  ju<lge  that  licsi'iiiishor 

forth  with  an   iiMplie<l  credit  lor  n< ssa- 

ries.     This   is  the  general    law  ;  .iml  tin; 

husband  is  liable  under  it,  unless  tl li- 

ligation  cast  on  him  by  turniinj  liis  wife 
out  b(!  discharged  by  soniethiim  suliso- 
<|ucut."  And  Cave,  .1.,  in  Wilsdii  r, 
Clossop,  1!>  Q.  B.  1).  371),  381;  "But, 
however  this  may  be,  it  is  at  all  events 
admitted  that  a  husband  has  no  riulit  to 
turn  his  wife  out  of  doors  under  <  ircuM- 
stances  that  would  not  ilisentitli'  Iter  to 
succeecl  in  an  action  for  restitiition  of 
conjugal  rights."  And  sec  Bac  .\li., 
liaroa  it  Fiiin'  (IH  ;  Seaver  v.  Simvit,  2 
Sw.  k  Tr.  App.  2.  p.  (iO.'i  :  Hiipc  v.  Il"l«'. 
1  Sw.  &  Tr.  U4  ;  Hex  v.  Flintuii,  1 
Ad.  227. 

a  8  <i.  B.  D.  177. 

'  See    Pickard    v. 
274 ;    Pike   v.   Fitzg 
ir,\  ;  Collett   V.    Hob 
687  ;   2H  W.  U.  40.5  ; 
ter,  3  Q.  R.  I).  722. 

But  there  is  one  case  where  the  wife 
shall  sue  and  Im!  sued  as  a  ffiH'-  s'h',  viz., 
where  the  husband  has  abjured  the  roilm 
or  is  banished,  for*  then  ho  is  dead  in  Uw; 
and  tho  hu.sband    being   thus  disabled  to 


Hi  UP,   L. 

ibbon,    17 
iison,    11 


It.  & 


R.  5  rii. 
C\\.  iHv, 
Cli.  Div. 


Atwood  i'.  Cliiclifi- 


PART  III.] 


MARRIED   WOMEN. 


193 


Tlic  l<'j,'al  expenses  incurred  by  a  deserted  wife,  preliminary  and 
incidoiital  to  a  suit  for  restitution  of  conjugal  rights,  in  obtaining 


sue  fur  or  ili'friid  the  wifi",  it  would  be 
iii„»t  unrciiMmiililt!  it'  she  imil  no  rismcily 
iii'ioiiM  Mi.iki'  IK)  ilfl'i'iR'c  lit  all.  I  BIk. 
("din.  44;t.  Ami  Ccki?  siiys  ;  "  A  wilf  is 
ilisalilnl  to  sill'  witll.illt  ilcr  llllsliiiiiil  iiH 
,1,111  li  ii-  ;i  iiiiiiik  is  without  iiis  soviiivif^ii. 
All. I  vi(  w  I'iiil  i"  hooks  that  in  somi! 
iiM-i;i  will' h;i^  hail  ability  to  sui- anil  bo 
sn.'l  rtithciiit  ln'i'  hiisbiiiiil,  for  till)  wilu  of 
Sir  Kil"it  l''ilkiia|i,  oiio  of  tlio  justiri-s  of 
till'  C'oiiit  ol'  Ciiiiiiioii  Pleas,  who  was  I'X- 
i|,M  111-  liauislii'il  lii'voiul  sea,  ditl  sui;  a 
«•■!  ill  liir  own  nanii',  without  her  hus- 
luii' 1,  ill' lit'iiij;  alive."  And  there  was  11 
similar  rase  in  the  rei}{ii  of  Kdward  1.  ; 
tli.it  111  the  wile  III  Thomas  Weyland,  who 
l.i;iii  liii'M  alijiireil  the  realm  for  felony,  on 
ttliiili  t'like  remarks:  "And  so  it  is,  if 
liy  iiit  111  iiirliameiil  the  liusliand  he  at- 
tiiiiH'il  ill  liiMsiiii  or  lelony,  ami  .saviiij;  his 
iili'  is  kiiiisheil  lorever,  as  lielkiiii|i  was, 
tLis  is  a  I'ivil  death,  iitid  tht;  wile  may  sue 
as  a  /iiH<'  soil';  and  eonidudes  that  an 
ailiiii'iliiiiii  ol  the  realm  was  cijuivalent  in 
Miini.  ii-.|ii.it  to  a  ilivoree  between  iiusband 
Aiiij  will',  iviiiiltiii^'  liui  to  the  rij-hts  and 
liuiiilitii'Mil /i»ii,'.si(/('.  t'o.  I.itt.  133.  And 
Sfi'  Viii.  All.  l."i'2,  li'i3,  where  the  cases  siip- 
jHirt  till' e\(e|itiiiii,  in  eases  of  exile  or  ban- 
isliiniiit  lur  a  limited  time,  and  also  wheru 
till'  liu>b.iiiii  was  an  alien  beyond  sea.  The 
eM'i|itiiiM  has  lieeii  a|i|ilied  in  this  country 
ill  nil  I'iises  where  the  husband  has  nhan- 
il.iii.ijiir  di'M'iti'il  his  wile  and  acce|>ted  an 
aiiii.|i(ir  re.siili'iiee  ill  another  State  or  juris- 
ilictimi.  In  thiMiiiiiliiMtionorthisexi'e|)tion 
till'  States  ail'  re<,Mrileil  as  foreign  and  sep- 
aiati'  jiirisilii'tions.  Abbott  t'.  Bavley,  6 
I'li'k.  ,s!l;  (ire^^ory  v.  Teiree,  4  Mel.  78; 
<!ri'j,'iirv  t'.  I'aiil,  1.")  Mass.  31  ;  Beaiie  v. 
Miir.,'aii,  I  Mi'Ciii'd,  14S;  Uhca  v.  Uheii- 
liii,  1  I'l't.  loo  ;  Cornwall  v.  Hoyt,  7  Conn. 
i'll ,  Clark  V.  Valentine,  41  (ia.  143; 
l.iivi'  r.  Moviiehiin,  Iti  111.  '277  ;  Hose  v. 
Ball's,  12  .Mn.  33  ;  Zallapher  v.  DeliirKy, 
.'i7  Mil.  37;  Musi.'k  v.  I»iiils(in,  7t!  Mo. 
tiJl ;  haulier  y.  lierthold,  11  Mo.  Avp. 
:iJl ;  lIulaiK'  V.  I,i)i,'an,  18  Ahi.  3o7  ; 
•Isliiiiii  0.  NfLsim,  51>  Barb.  3.')7. 

Ill  tile  late  ease  (if  I'lielps  v.  Walther, 
"^  Mil.  3'Jii,  it  was  held  lliat  the  eonimon- 
l.iw  ]iiiiiri|ili.  ]ii'iivailed  in  Missouri,  and 
Iliat  till-  st  iiiite  there  providinj?  j-eneinlly, 
with  fxii.]itiiiiis  only  not  apiilicaiiie  to  this 
I>|iii;t,  tliat  when  a  married  woman  is  u 
jiiirty  til  her  suit  her  husband  must  Im 
jniiH'il  with  ln'r,  did  not  take  uwny  from 
InT  riijliis  to  sue  in  her  own  name  in  thi) 
fniniiiun.law  ex.'eiitioiml  eases.  And  in 
tlip  .same  St.'iie,  in  the  still  more  recent 
J^wlv.  11,  isstl)  of  Morris  v.  Bohle,  19 
Mo.  App  :,•>'.<,  under  tlio  statute   juovid- 

TOL    I.  13 


ing,  in  eirect,  that  when  the  Imsband, 
withmit  good  cause,  abindons  iiis  wife, 
and  refu.ses  or  neglects  to  niaintain  her, 
she  is  entitled  to  her  earnings,  it  was  held 
that  where  her  husband  was  conlineil  in  a 
lunatic  asvluin  she  could  sustain  ail 
action  in  her  own  name  lor  her  earnings. 
But  the  aliandonnient  and  failure  to  sup- 
jiort  must  concur  in  order  to  give  the  ac- 
tion. State  V.  StaH'ilis,  Hi  Mo.  A|ip.  563  ; 
Statu  V.  Itu.ssell,  //'/(/.  1(!  ,  State  v. 
Bruner,  //'/(/.  '274  ;  State  r.  Silliier,  17 
Mo.  Alip.  31t.  So  that,  thiiitgh  the  lius- 
band  abandon  Ids  wile,  while  she  is  liviujo; 
on  means  provided  by  him,  such  right 
does  not  accrue.  State  v.  Fuchs,  17  Mo. 
App.  4."..S. 

In  Maine,  too,  it  has  been  held,  where 
the  deleiidant  was  a  inarried  woman,  de- 
Rirted  by  her  husband,  who  had  lel't  the 
State,  that  as  she  was  thus  eiiaiiled  to 
make  express  or  implied  I'ontraits  for  her 
support,  which  voiild  be  binding  on  her  as 
il  sole,  so  that  any  per.son  furnisliing  her 
needful  supplie.,  iit  her  rei|iiist  could 
niaintain  an  uition  therefor  against  her, 
despite  her  coverture,  that  an  action  would 
lie  against  her  by  the  lowii  for  jiauper 
8U|>plies  liirnished  her.  Inhabitants  uf 
Peru  V.  I'oliiiKl,  78  Me.  2\r>.  And  see 
Ibewer  v.  Kasl  Miichia.s,  27  Me.  4!»5 , 
Cutler  V.  Maker,  41  Me.  ;<'.n  ;  Deer  Isle  r. 
Eaton,  12  Mass.  3°28  ,  Kcniiebunkport  i>. 
Smith,  2-2  Mi.  441*  ;  Augusta  r.  KiiiKlield, 
36  Me.  23!» ;  I.ewistoii  r!  Harrison,  6t»  Me. 
5U4  ;  New  Bedlord   v.  Cliace,  .1   Crav,  28. 

Ill  Montana,  in  Palmer  v.  Mr.Masters, 
6  Mont.  ICii,  m  an  action  by  a  married 
woiiian  for  the  recovery  ot  property,  which 
she  alleged  U'loiiged  to  her,  taken  in  exe- 
cution against  her  Iiusband,  she  claimed 
that  he  had  deserted  his  wile  and  left  the 
territory,  leaving  her  in  destitute  circum- 
stances, and,  theielore,  that  the  aban- 
doned wife  had  a  right  to  maintain  the 
action  at  common  law,  not  having  brought 
her.seir  within  the  piotectinii  111  the  Mar- 
ried Woiiiiin's  Act  of  Montana  The 
court  said  :  "  We  think  a  married  woman 
who  has  been  deserted  and  abandoned  by 
her  husband  should  be  treated  as  a  fivie 
.«(/«',  and  Mibject  to  sue  and  be  sued  a.s 
such  This  was  so  at  comnion  law,  if  the 
husband  had  alijiired  the  realm,  and  there 
is  not  iiiiii'h  practical  dillereiice,  so  far  a.s 
the  wile  is  concerned,  whether  her  hii.s- 
biiTid  abandons;  her  by  abjuring  the  realm 
or  desert.s  her  by  departing  the  territory 
of  Miuitann.  It  i.s  not  of  vital  importance 
whether  the  desertion  is  called  alijiiration 
or  abandonment."  The  court  held,  that 
while  desertion   of  the  wife  by  the  hug- 


^''■ill-.i' 

■.   :til''''    f 


. 


194 


COMMENTABIES  ON  SALES. 


[hook  II. 


■if 


counscrs  opinion  on  the  effect  of  an  antenuptial  agreement  for  a 
settlement ;  in  obtainin*;^  prufeH^ional  advice  as  to  the  pr(>|)cr  imxlu 
of  dealing  with  tradespeople,  who  were  pressing  her  to  pay  tlicin 
for  various  necessary  articles  supplied  to  her  since  she  hud  licoii  (in- 
serted ;  and  also  of  preventing  a  di.strc8s  threatened  on  fiiniitiiie 
l)eIonging  to  her  husband,  in  the  house  she  occupied,  —  are  ut'ct'ssa- 
riesfor  which  she  has  implied  authority  to  pledge  his  credit  tliiiiiiir 
his  lifetime,  and  for  which  alter  his  deuth  his  executors  arc  then- 
fore  liable.' 

A  solicitor  employed  by  a  wife  to  take  proceedings  against  her 
husband  to  obtain  a  divorce  on  the  ground  of  cruelty  and  adulten. 
may  sue  the  husband  for  "  extra  costs,"  i.  f.,  costs  rea.S()ual)ly  in- 
curred by  him  beyond  the  costs  taxed  and  allowed,  as  IkjIwocii 
party  and  party.  His  common-law  right  to  sue  the  husl)an(l  for 
these  as  for  "necessaries"  supplied  to  the  wife,  is  not  to  Ix:  lim- 
ited to  the  statutable  rights  and  remedies  given  to  the  wife  under 
the  divorce  acts.'' 

In  an  action  to  recover  the  value  of  necessaries  8U|)plitMl  l)y  tin' 
plaintiH  to  the  wife  of  the  defendant,  whilst  living  apart  I'lom 
him,  the  answer  set  up  by  the  defendant  under  a  plea  oi'  never 
indebted,  was  that  the  agency  of  the  wife  was  destroye  I  by  tlio 
circumstance  of  her  having  in  a  suit  in  the  divorce  court  been 
found  guilty  of  adultery.  To  establish  this,  the  proceed inirs  in 
the  suit  were  put  in,  from  which  it  appeared  that  the  adultery  of 
the  wife  with  the  co-respondent  had  been  established,  but  that 

])ro[>orty,  linil  clmngoil  tlio  ooinmnn  l:i», 
mill  iiiiiilu  a  iniiri'icil  woiiinn  hvu'H  M'pa- 
rati!  mill  a))art  from  her  liusliainl  ii:ilili'  to 
111!  sui'il,  notwithstamliiif?  Iht  fovirturf. 
.S,.|.  Fri'ikiiig  V.  Uollaiiil,  M  N.  V.  4'.'i 
42r»  ;  Ailaiiis  v.  IltirniuHH,  t'i'2  Itnli.  IIW; 
I'liiiiior  «.  I.oril,  5  Alli'ii,  4t)0  ;  ll'ilinoir. 
lloliiii's,  4  Conn.  117,  120  ;  clMpiiMii  ' 
IJrijj^'s,  11  Alli'ii,  540  ;  Vntixt  v.  Cobh, 
104  .Mass.  .'iSD,  5!»0. 

>  Wilson  V.  Koril,  I..  «.  3  Kx.  M.  S^-* 
Brown  I'.  Ai-krovil.  6  K.  &  li.  ■'sl'J;  UM 
V.  I.vnii,  2  .M.  fc'W.  2t!5. 

■i  Ottaway  r.  Hamilton,  3  C.  V.  D.  .IW, 
by  the  ('ommon  I'li-aa  Division  ;  nllimii^ 
on  appoal  hy  tlin  (.'ourt  of  Ai'pi'al ;  /'■!''■ 
31t8.  Si'o  also  TiirniT  i'.  Rnoki's,  lO.Vl 
K.  47  ;  Brown  v.  Arkrov.l.  5  K.  -*c  n  813 
Hill!  V.  Shcplionl,  12  C.  I!,  s.  s.  ;i:i2;  ^ 
lloo|)cr,  33  L.  .1.  (Ml.  300;  Di.koiis  r, 
Diikfiis,  2  Sw.  k  Tr.  103  ;  Siockin  r, 
I'attriik,  29  L.  T.  607  ;  Wills  r.  Wills 
1  Sw.  &  Tr.  308  ;  Alli-n  v.  Alliti.  .'Swi 
Tr.  107  ;  30  I,.  .1.  V.  k  I).  9  ;  Biviiiiirn. 
Brimncr.  L.  U.  I  1'.  &  1)  2,-iJ;  I'W"' 
.lonos.  L.  H.  2  V.  &  I).  333;  VUvi't '■ 
Fli.wiT,  L.  U.  3  r.  &  1).  132  ;  N')rra« 
V.  Villars,  2  Ex.  Dir.  869. 


band  removes  tlioiiisal)ilitii>!t  of  covortiiri', 
nnil  authorizes  till!  wiff  to  art  as  wfi'mc  mile, 
yet  till!  riimoval  of  this  lUsahility  shoulil 
lie  alli'^uil  ami  provnl,  ln-uaiise  tho  fact  of 
marria^ji'  raisi-s  the  pri'siimption  that  tho 
disabilities  still  exist.  See  an  elal»oriiti! 
juilgmeiit  in  Teck  c.  .Marlins;,  22  W.  Va. 
708,  where,  with  refi-reiice  to  an  aetion  in 
West  Virginia  a^^ainst  theailministrator  of 
a  married  woman,  for  eosts  and  expenses 
of  iibtaiiiiii^  a  divoreo  from  her  husband, 
it  beiii;(  alle}{ed  that  at  the  time  the  eon- 
tract  was  mado  tim  intestate  was  livin<; 
separate  and  apart  from  her  husband,  the 
court  said;  "Would  tlie  fact  tlir.t  when 
the  contract  was  made  she  was  livinj;  sep- 
arate and  apart  from  her  husband  vary 
tho  case  and  render  sncli  contract  valid 
a^^ainst  her  in  a  court  of  law  >  At  com- 
iiion  liiw  her  contract  would,  in  a  court  of 
law,  bu  re;rarded  as  invalid  and  null  as 
Ap;ninst  her,  when  made  while  living  sepa- 
nto  and  apart  from  her  husband,  pre- 
cisely as  it  would  be  if  she  were  living 
with  him."  Hut  the  court  held  that  the 
statute  of  the  State,  enabling  a  married 
woman,  living  separate  and  apart  from  her 
hnsband,  to  carry  on  business  in  her  own 
namo,  and  making  the  issue  her  separate 


PAHT  m.] 


MARRIED  WOMRN. 


195 


tliL'iT  was  no  decree  of  diHRulution  of  inarriajjo,  by  reason  of  the 
fiiKiiii;:  of  the  jury  that  her  husband  aUo  had  been  guilty  of  adul- 
torv .  Till"  court  hold  that  the  judj^inent  of  the  divorce  court  \uu\ 
iKit  iilli'icd  tlic  MtatiiH  of  the  parties.  The  woman  still  conUniipd 
llu'  will'  of  the  defendant.  There  was  nothing?  in  the  case  in  the 
ilivoirc  court  but  the  mere  verdict  of  a  jury,  bindinji^  as  between 
the  parties  to  the  suit,  luit  it  was  ni)t  an  estoppel  as  airainst  other 
|);iiti(S  wlio  came  to  litii;;ate  th(^  same  (juostion.  The  verdict 
a.Miu-t  file  defendant  was,  aecordinj^ly,  sustained.* 

A  |»('is(»n  who  has  advanced  money  to  a  married  woman  deserted 
liy  111  r  liiisbuml,  and  whieli  has  been  actually  applied  towards  lier 
sii|i|init.  is  tiititled  in  e<|uity,  though  not  at  law,  to  recover  such 
Slims  troni  the  husband.''' 


I  Nrnlliiim  f.  liiiiiintT,  I..  U.  1  (\  p. 
583.  liiii  ii  v'litriit'f  ill  II  iiiiitiiinoiiiitl 
('(iiirt  is  iiiiK'iiisivf,  lor  it  is  nii  adjuilira- 
eiilliiii  ll|"ili  the  slut  IIS  of  till'  |i:irtii'M, 
liiiii.^t.i  r.  Villi  l{.':il,  -2  Str.  mi  ;  Hiiiit- 
iiiij's  Cisi',   4  Cii.    it.   'i\>(i:   K«!iiir.H  Case, 

"in.  |{.  tj/<.-  .MlMllloWl'l-dlt  r.  IIiiKiii'iiilii 
4  M.»..  r,  r.  ;l>li  ;    I'ciiv  V.  M.Mlil.iWclnl't, 

M  llciv.  12-.';  i'l.ili|w  r.  I'.uik,  '>T.  U.  :U(i. 
Sm' .!<  Ill  inIi)|i|iiI  ill  siH'li  cnsc,  Outiaiii  v. 
MNri'KHixi,  :i  Kiisi,  34ii  ;  lliiniialcir<l  v. 
Il,irc>:i,  'J  ('.  A:  I'.  14><  ;  (iciiciiil  .Strain 
N;ivii,Mli(ili  Cr).  I'.  Ciiilloii,  11  M.  &  W. 
Kl  ;  i'iii'  I'lirln'ss  (if  Kiii^;st<iii'H  Casi', 
'2  .Sill.  I..  (.',  i!i!:i  <v  .«(•(/.  ,•  .St<'|ili,  (III  riiiiil. 
(.Mh  v<\.)  \7-\;  U(w.  Kv.  (loth  i-d.)  U)7, 
1-::. 

-  I), arc  r.  .Soiitfi'ii,  L.  U.  9  V.'].  l.M  ; 
Ilinis  i:  l.ri',  1  r.  Wins.  4'>'J  ;  .li'iiiirr  r. 
M'Tiis,  1  Dr.  &  Sm.  'JIH  :  3  Put!.  V.  & 
.1.  \'<:  IliitiJiiiiMiii  r.  Siandlry,  .Vim.  lU'^. 
IT'ii,  citi'il  in  Doare  v.  .Soutti'ii.  !,.  It.  !» 
Ki|.  |>.  i:,'J.  May  V.  Ski'V,  lit  Sim.  f.S8, 
liiiMiiii,'tli''  iivi'isf,  i.s  ovi'iriili'il  liv  .loiiiior 
I'.  Mollis,  ;(  li..  (i.  F.  ti  .1.  4;'..  .S..(.  Clin- 
lii'll  r.  i;.h|iiiiiiii|,  .1  A.  &  K.  7r)."» ;  In  re 
Kiir.1,  :\i  l!,;,v.  tl-Jl;  ilawlyns  i'.  Vaiiclvkf, 

l'i>i|'i'>siii-  i'aisdiis  sav.s  on  this  Kulijcct  ; 
"Wlii'tlni-  a  III  iirii'il  wumaii  imii  lionciw 
motii'v,  rviii  I'lir  iicTi'.s.siiiii's,  and  iicr  hiis- 

ImiiiI  \v  liil.i  lialili'  nil  lii^  ilii|ilic(i  lllltlior- 
ity,  M'i'iiis  lint  til  lie  srtllnl."  ]  I'aM.  oil 
Con.  (7i!,  ,.,!,)  :i|i'j.  Ot,  thn  coiitraiy,  \\<'. 
think  till'  liw,  liiiMi  ill  Kiiijlaiiil  aiid  .\irirr- 
ii;i,  is  ili..r..iii;iilv  well  sctilcil,  and  is  a.s  is 
almvi'  111, I  down  liy  lis.  As  to  thf  law  in 
Khiiliihl  M.,.  ill,,  uliovc-citi'd  I'rt.scs,  in  which 
tlic  liw  i^  ,  Irmiy  l;iid  down  as  \vt>  havi! 
«tat.'d  it.  Tims  ill  .IfiiniTi'.  .Morris,  1  Dr. 
i  Sm.  21S,  :i  1»,;(!.  F.  k  .1.  4.5.  .M,  l.or.l 
('atii|ilwll  siys  on  tho  |ioint  ■  "  .\ii  iiction 
»l  l:iw  niiili'l  lint  he  inaiiitaineil  for  hiicIi 
» 'lii'ii.  Tliosf  who  supply  tlio  ni'ci'ssa- 
rii's  ti>  till' di'si-rtiMJ  wifo  may  sui>  tin*  hns- 
Miul  ;it  I  iw,  .,hi'  hfiiig  cotisidorcil  his  ngi-iit 


with  uiiroutit<'nnandaMo  authority  to  or- 
ih'r  till'  iii'Cfssiirii's  on  his  cii'dit.  But 
courts  ol'  law  will  imt  r«'r(i;;iiizc  iii,y  privily 
lit'twi'i'ii  till'  hiisliand  and  a  pir.Miii  who 
lias  Kiipplivd  his  will-  with  inoiii'y  to  piir- 
cliah«  iH'icssarii's,  or  pays  the  tradi'sprnph; 
who  hiivi:  rnrnishcil  thmi.  Ni'vcrthrlcss, 
it  has  ht'fii  laid  down  tnuii  aiiciriit  times 
that  a  court  of  cipiity  will  allow  the  party 
who  has  advanced  the  iiioncy  which  has 
proved  to  have  Ih-cii  actually  employed  in 
payiiii;  for  iieccs.saries  fiiriiisheii  to  the  de- 
Bcrted  wile,  to  stand  in  the  .shoes  of  the 
tradcs|K-opl(>  who  furnished  the  iiecessn- 
ries,  and  to  have  a  remedy  for  the  niiiiuint 
a;raiiist  the  hushaiid."  And  as  far  hack 
a.s  A.  II.  1718  it  was  decided  that,  admit- 
tin;,'  the  wife  <'aiiiiot  at  law  Ikmiow  money, 
tholl^^h  for  nece.s.saries,  so  as  to  hind  tlio 
husliand,  yet  this  money  heint;  applied  to 
the  Use  of  the  wife  for  her  cuie  and  for 
necessaries,  the  ]ilaintiir  that  lent  tliLs 
money  must  in  eiiiiily  stand  in  the  place 
of  the  ]ieisoi.->  who  liiiiiid  and  pruvidud 
Niich  necessaries  for  the  wife.  And,  there- 
fore, lus  such  persons  wiillld  he  ciedltors  of 
the  husliand,  so  the  plaintilf  shall  .stand 
ill  their  place  and  he  a  I'leditoi  also  ;  and 
it  was  ordered  that  the  hiisliiiid's  trim- 
tees  .should  pay  hiiii  his  iiiiiiii'v  mid  like- 
wise his  costs.  Harris  r.  I.ee,  1  1'.  Wins. 
4!S'J.  And  ii^nin  :  If  a  tradesiiMii  trust 
a  married  woman  for  ini'essaries  he  shall 
recovei  a<{ainst  the  hiishaiid,  so  tar  as  the 
f;oods  taken  up  appear  to  he  mcessai y,  ai;- 
ciiiiliiiL;  to  the  dejjrec  and  (|iialily  ol  the 
llUsliaiid  ;  hut  ll  a  man  lends  a  inanieii 
wnliian  iiioney  to  htiy  iieceM.saiie.s,  and  she 
does  MO,  he  has  no  rciindy  apiiiist  ti.e  hus- 
haiid ;  and  this  was  aereed  to  he  ii  milled 
(ii'^linriiiiii  (.\.  n.  1718)  in  .Scott  and  .Man- 
liy's  Case  and  other  cases  (at  law,  An'h. )  ; 
nnd  therelore  the  plaintilf,  who  in  this  eu.se 
has  supplied  the  woman  with  nioiiey  in 
her  necessities,  and  now  hroiight  his  hill 
aguin-st  the  husband's  e.\e(  utors  for  ii  dis- 


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196 


COMMENTARIES   ON  SALES. 


[book  II. 


4.  Married  Women  binding  their  Separate  Estate. 


The  separate  estate  of  married  women  against  which  the  rights 
and  remedies  of  their  creditors  exist  and  can  be  enforced,  is  the 

covery  of  assets,  and  a  satisfaction  thereout 
of  his  debt,  could  have  no  relief,  though 
tiie  utmost  unkind  and  cruel  usage  of  the 
husband  was  ])roved,  and  that  the  money 
lent  was  actually  laid  out  and  applied  for 
necessaries.  But  yet  the  Master  of  the 
KoUs  said  the  plaintilf  should  stand  in  the 
place  of  the  tradesmen  of  whom  such  ne- 
cessaries were  bought  {Mich.  1718,  Awm., 
MS.  Kep.  Free,  in  Chan.  502),  and  be 
let  in  for  a  satisfiiction  for  so  much  as 
he  could  ])rovo  to  have  been  advanced  or 
delivered  to  her  by  them  as  necessaries,  as 
they  themselves  should  have  been  if  they 
had  been  plaintilfs,  but  for  nothing  more, 
s.  C.  Free,  in  Ch.  502,  503.  The  siinie 
principle  was  applied  in  Marlow  v.  Pit- 
field,  1  F.  Wms.  558,  559,  to  tlie  Btrictly 
analogous  case  of  an  infant,  where  it  was 
held  that  though  the  law  be  that  if  one 
actually  lend  money  to  an  infant,  even  to 
pay  for  necessaries,  yet  as  the  inftint  in 
such  case  may  waste  anil  misapply  it,  he  is 
therefore  not  liable.  It  is,  however,  other- 
wise in  eipiity  ;  for  if  one  lends  money  to 
an  infant  to  pay  a  debt  for  necessaries, 
and  in  consequence  thereof  the  infant  does 
pay  the  debt,  here,  although  he  may  not 
be  liable  at  law,  ho  must,  nevertheless,  be 
so  in  ecpiity ;  because  in  this  case  the 
lender  of  the  money  stands  in  the  place 
of  the  person  paid,  viz.,  the  creditor  for 
necessaries,  and  shall  recover  in  equity,  as 
the  other  should  have  done  at  luw.     This 


has  been  the  well-settled  law  ever  since, 
the  only  exception  being  the  overruled  case 
of  May  V.  Skey,  16  Sim.  588.  The  case 
of  May  V.  Skcy,  which  was  deciiled  by 
Siiadwell,  V.  C,  was,  in  Hirst  v,  Tolson, 
16  Sim.  620,  623,  put  by  the  same  judge 
on  an  entirely  untenable  basis  ;  and  the 
case  was  expressly  overruled  by  Jenner  i'. 
Morris,  3  De  G.  F.  &  J.  45,  53;  Lord  Chan- 
cellor Campbell  saying  of  it  :  "One  ad- 
verse case  was  cited  which  I  must  notice, 
—  May  I'.  Skey,  16  Sim.  588,  —the  mar- 
ginal note  being,  '  A.  having  gone  abroad 
and  left  his  wife  unprovided  for,  the  jilain- 
tiff  lent  her  money  to  purchase  necessaries, 
and  she  applied  it  accordingly,  —  Held, 
that  the  plaintiff  could  not  sue  A.  for  the 
money  in  a  court  of  equity.'  But  it  ap- 
pears that  the  vice-chancellor,  who  decided 
that  case,  not  holding  that  there  was  not 
a  debt  due  from  A.  to  the  plaintiff  which 
might  be  recovered,  proceeded  upon  the 
notion  that  this  was  a  kfinl  debt,  the  pay- 
ment of  wiiich  could  not  be  directed  by  a 
court  of  equity.  His  Honor  more  fully 
explains  this  as  his  ratio  decidendi  in  the 


subsequent  case  of  Hirst  v.  Tolson,  16  .Sim. 
623.     But  this  is  clearly  erroneous.    Tlmt 
no  action  at  law  could  be  maintained  for 
such  a  demand  was  considered  too  cIm: 
for  argument  in  the  recent  case  of  Knox 
i<.  Bushell,  3  C.  B.  N.  .s.  334."    The  case 
.seems  to  us  to  be  put  by  Shadwell,  V.  (.', 
in  Hirst  v.  Tolson,  16  Sim.  623,  on  a  still 
more  untenable  ground  than  as  stiittd  liv 
Lord  Campbell  in  Jenner  v.  Morris,  3  De 
G.   F.   &  J.   45,  53.     The  ground  upon 
which  Shadwell,   V,  C,  seems  to  us,  in 
Hirst  V.  Tolson,  16  Sim.  623,  624,  to  put 
the  cases  of  May  v.  Skey  and  Hirst  v.  Tol. 
son  was  simply  that   in  the  loniier  case 
the  bill  was  Hied  against  the  hutiband  him- 
self,  and  in  the  latter  case  it  was  (ikd 
against  his  executors;  i.  c.,  that  sucii  a  liill 
would   lie   against  the  husband's  execu- 
tors after  his  death,   but  would  not  lie 
against  the  husband  himself  during  his 
lifetime.     This  position  being  so  utterly 
untenable,  it  is  not  strange  that  a  slijrhtly 
less  untenable  basis  was  sought  fur  it  in 
Jenner  v.  Morris,  3  Ue  G.  F.  &  J.  45,  53. 
But  the  ground  of  the  decision  secuis  to 
us  clearly  stated,  thus  :  "In  May  v.  .Skey, 
16  Sim.  588,  a  lady  had  advanced  money 
to  a  married  woman  (whose  husband  had 
gone  abroad  and  left  her  wholly  unpro- 
vided for)  to  enable  her  to  procure  clothes 
and  other  necessaries  ;  and  the  lady  sued 
the  husband  [the  italics  are  his  own]  lor 
the  money.     In  the  course  of  the  arnii- 
meut  two  cases  wer '  cited  in  which  the 
court  had  ordered  money  advanced  under 
similar  circumstances  to  be  rt'paid.    But 
in  each  of  tho.se  cases  the.  husband  tm 
dead,  and  the  suit  was  against  liis  assets. 
In  May  v.  Skey,  however,  the  hi'shniid  ir-'f 
alive,  and,  therefore,  I  held  that  the  hill 
would  vol  lie.     in  this  case,  there  licinjiii 
debt,  and  payment  of  it  bidiig  soiii '  t  out 
of  the  a.s.sets  of  a  person  who  is  d'na  J.  t., 
a  bill   filed  against  his  executors],  I  am 
clearly  of  opinion  that  it  is  a  case  in  wiiicli 
this  couit  lias  jurisdiction." 

Shailwell,  V.  C,  does  not  intimate  thnt 
the  bill  in  equity  against  the  livinj;  hus- 
band was  not  sustained  beciiuse  an  ao- 
tion  at  law  would  lie  against  him ;  ii^r 
does  he  state  or  imjdy  that  an  action  t 
law  would  lie  against  the  husband,  lut 
not  against  the  executor ;  but  wha*  If 
does  expressly  hold  is,  that  a  hill  wnuM 
not  Ue  against  the  living  liusliaiid,  Imt 
after  the  death  of  the  husband  it  wouli 
lie  against  his  executors,  because  they 
have  assets  on  which  the  court  can  ait. 
But  how  the  fact  of  the  assets  king  in 


in  ;' 


PART  in.] 


MARRIED  WOMEN. 


197 


creature  of  courts  of  equity,  and  such  rights  and  remedies  them- 
selves, therefore,  can  exist  and  be  enforced  in  those  courts  only. 


the  hands  of  the  executor  would  sustain  a 
claiiii  in  cijiiity  which  could  not  be  sus- 
miiicd  iiijuiiist  his  testator  does  not  satis- 
faLtorilv"ai.iH':ir.  Hy  every  analogy,  an  ac- 
tion at  l:i\v  would  as  well  lie  against  an 
(Xi'i.'Utur  hiiviiig  assets  as  it  would  have 
hiiii  a^'aiiist  his  testator  ;  and  any  claim 
iiciiii^l  tliu  estate  of  the  testator  which 
coiiM  iiiily  he  enforced  by  a  bill  in  equity 
coiilii  as  wi'U  be  enforced  by  similar  bill 
ai;,iiiist  till.'  testator  in  his  lifetune.  How- 
ever, wlii'tlicr  the  ratio  decidendi  of  May 
V.  Skcv,  16  Sim.  588,  as  distinguished 
from  Iliist  r.  Tolson,  16  Sim.  623,  is  as 
stated  liy  Lmd  C'amitbell  in  Jenner  v.  Mor- 
ris, 3  I>e  (i.  F.  &  J.  45,  53,  or  as  it  i)re- 
sents  itself  to  us,  it  is  entirely  untenable, 
and  has  been,  we  think,  properly  overruled 
and  rciiudiatiMi  in  all  the  later  cases. 

Lord  .lustii'o  Turner  stated  a  much 
sounder  jirineiide  (as  we  think,  with  all 
(leleience  to  Lord  Cain])bell)  than  that  re- 
lied upon  by  Shadwell,  V.  C,  of  the  ability 
of  the  court  to  control  the  assets,  as  fol- 
lows :  — 

"  It  is  an  ancient  head  of  the  jurisdiction 
of  this  court  to  interpose  in  cases  in  which 
the  principle  of  the  law  gives  a  right,  but 
the  tonus  of  law  do  not  give  a  remedy. 
Kow  what  is  the  case  here  i  It  is  beyond 
question  that  the  i)rinciple  of  law  is  that 
the  husliand  deserting  his  wife  is  liable  for 
necessaries  supplied  to  her ;  but  it  is 
oipially  beyond  question  that  if  money  be 
ailvaneed  to  the  wife  to  juirchase  necessa- 
ries, tiic  money,  although  in  fact  so  ap- 
plied, cannot  be  recovered  at  law,  because, 
aicnrdin},'  to  the  necessary  form  of  action 
for  tiie  recovery  of  the  money,  the  court 
of  law  cannot  look  behind  the  advance 
and  enter  into  tiie  ajiplication  of  the 
money.  It  seems  to  me,  therefore,  that 
the  old  eases  are  W(dl  founded  in  the  prin- 
ciples of  ilio  court  of  ecjuity,  and  that  we 
are  liouml  to  follow  them."  Jenner  v. 
Morris,  3  \)i-  C.  F.  &  J.  45,  55,  affirming 
the  jud'^nient  ;  s.  c.  1  Dr.  &  Sm.  218. 
See,  also,  /,V  j.'ord,  22  Beav.  621,  where 
an  annuity  was  granted  to  a  wife  who  was 
deserted  tiy  her  liuslmnd,  a!id  supported 
hv  her  sister,  and  which  was  ordered  to  be 
lid  to  the  sister  in  exidusion  of  the  hus- 
laiid    And  •-  .•  Cuy  v.  Pearkcs,  18  Ves.  1 96. 

The  same  ]nin(Mple,  both  ns  to  married 
women  and  iiifiiiits,  has  been  repeatedly 
held  in  Knfjiand  in  f'e  courts  of  law. 
See  Darin-  v.  KmK-her,  1  Salk.  279  ;  f^arle 
r.  I'eale,  1  Sulk.  386  ;  Stone  v.  Macnair, 
1  Moo.  T2ti  ;  (;rin<lell  v.  Godmond,  5 
A.  &  K.  7r,.'. :  Prob,irt  v.  Krouth,  2  Esp. 
472;  Knox  v.  Rnsheli,  3  C.  B.  N.  s.  334. 
In  this  lust  case,  Crowder,  J.,  where  it 


was  decided  that  a  husband  is  not  liable 
at  law  for  money  lent  to  his  wife,  though 
it  was  afterwards  applied  by  her  in  pro- 
curing necessaries,  for  the  supply  of  which 
he  would  have  been  liable,  asked  Shea, 
Sergt,  whether  he  had  any  authority  that 
money  lent  to  the  wife,  though  for  a  spe- 
cific purpose,  could  be  recovered  in  an 
action  against  the  husband  ;  and  the  coun- 
sel was  forced  to  admit  that  there  was  no 
such  case  at  law,  but  that  there  was  in 
equity. 

What  makes  the  mistake  of  Prof. 
Parsons  in  the  matter  more  remarkable  is, 
that  in  the  well-known  and  wtdl-decided 
case  of  Walker  v.  Simpson,  7  W.  k  S.  83, 
decided  in  this  country  nearly  fifty  years 
ago,  where  the  English  cases  were  cited 
and  approved,  the  same  principles  to 
which  we  have  referred  were  distinctly 
enunciated,  on  a  question  of  set-otf  to  a 
claim  by  the  husband  on  a  bond,  thus  :  — 
"Though  it  be  true  that  a  husband  is 
bound  to  provide  his  wife  with  necessaries 
suital)le  to  her  situation  and  his  condition 
in  life,  and  if  he  abandons  her  or  turns 
her  away  without  reasonable  or  just  cause 
and  without  any  provision  for  her  main- 
tenance, he  becomes  liable  for  her  neces- 
saries and  sends  credit  with  her  to  that 
extent,  yet  he  is  not  liable  for  money  lent 
to  iier,  unless  it  be  done  at  his  request, 
which  must  be  averred  and  shown.  So, 
in  regard  to  an  infant,  if  money  be  lent 
to  him,  aiul  he  lay  it  out  in  necos.saries, 
he  is  not  liable  for  it  at  law.  It  is  only 
for  necessaries  furni.shed  to  the  infant  that 
he  can  be  made  liable  at  law,  and  not  for 
money  lent  or  advanced,  though  he  may 
have  used  it  for  the  purpose  of  procuring 
necessaries.  And  so  in  the  case  of  a  hus- 
band, he  can  only  be  made  liable  at  law 
for  necessaries  furnished  to  his  wife,  and 
not  for  moneys  advanced  or  'i-nt  to  her, 
notwithstanding  she  may  have  laid  it  out 
in  ]>rocuring  necessaries.  ,  .  .  Had  the  de- 
fendant supplied  the  plaintilf's  wife  with 
necessaries,  instead  of  money,  suitable  to 
her  situation  and  the  condition  of  the 
phiintilf  in  life,  and  have  shown  this  on 
the  trial  of  the  cause,  together  with  the 
fact  that  the  plaintiff  had  without  suffi- 
cient cau.se  eom]telled  her  to  separate  her- 
self from  him,  hi!  might  have  defalcated 
the  price  thereof  from  the  amount  of  the 
bond.  Or  if  he  had  shown  that  under 
such  circumstances  the  money  advanced 
by  him  to  her  had  been  applied  to  the 
payment  of  such  necessaries  jMirclmsed  for 
her  u.se,  he  might,  upon  prin  iples  of 
equity,  have  been  permitted  to  have  stood 
in  the  place  of  the  creditor  for  necessaries, 


i\, 


>'  I  : 


i  li 


I'.'ti 


t\\\:\ 


h.    '  . 


193 


COMMENTARIES  ON   SALES. 


[book  il 


For  courts  of  law  recognize  in  married  women  no  separate  exist- 
ence, no  power  co  contract,  and,  except  for  some  collatoiul  and 


:lli^'i 


and  to  have  defalcated  the  money  ad- 
vanci'd  fiom  the  aniuunt  due  on  the  bond. 
All  this  is  nMiuiiiMi  of  the  party  who  un- 
dertakes to  fuiiii.sli  the  wife  necessaries  or 
money  to  pay  for  the  same  while  in  a  state 
of  separation  from  her  husband.  For  al- 
tliouj,'li  the  liu.sliand  is  to  blame  fo"  hav- 
hv^  caus(;il  the  separation,  yet  he  is  only 
eharj,'eabie  at  law  for  necessaries  sujtplied 
to  his  wife  at  her  reipiest,  and  not  with 
money  lent  or  advanced  to  her,  because 
money  cannot  be  considered  necessaries, 
which  consist  of  food,  lodj^inj^,  and  rai- 
ment. But  wliere  the  money  lent  or  ad- 
vanced has  been  applied  to  the  payment 
of  necessaries  fuiiiishcd  to  her,  ei(uity  will 
put  the  party  lending  or  advancin^i;  the 
money  in  the  plact^  of  the  jiarty  who  sup- 
plied the  necessaries."  So  tliat,  in  this 
country,  such  proceedinjjs  would  have  to 
be  in  eipiity  in  such  of  the  States  as  have 
not  given  eipiitable  jurisdiction  to  the 
common-law  courts. 

Tiie  same  iirineiple  is  establislied  in 
Connecticut  in  the  }nU\  rase  of  Kimyou  v. 
Farris  (a.  d.  1880),  47  Conn.  510,  where 
a  bill  in  e(i\iity  was  liled  to  recover  money 
ailvani'ed  to  the  wife  of  the  respondent  for 
the  purchase  of  necessaries  by  her  wliilu 
deserted  by  her  liusband,  which,  on  de- 
nmrrer,  was  dismissed  by  the  Sujjerior 
Court.  But  on  error  to  the  Supreme 
Court  of  Errors  the  judgment  was  re- 
versed, and  the  bill  was  sustained.  We 
know  of  no  decision  in  this  country  which 
i.s  contra  to  these  well-decided  cases.  In 
Gill  V.  Read,  5  U.  I.  313,  347,  after  stat- 
ing  the  principle  that  neitlier  a  wife  nor 
an  infant  has  credit  to  borrow  money,  — 
the  credit  being  for  necessaries,  and  not 
for  money  to  buy  them  with,  —  which  may 
be  misapplied,  this  distinction  is  made, 
that  if  the  lender  lays  out  the  money,  or 
sees  it  laid  out  for  necessaries,  he  may 
charge  them  as  j)rovid(.'d  by  himself;  and 
thus  the  application  of  the  loan  is  left,  as 
it  should  be,  at  his  jieril.  The  same  jirin- 
ciple  is  laid  down  in  Karlc  v.  Peale,  1  Salk. 
38(3,  where  it  was  ludd  that  a  Jcmc  covert 
may  buy  necessaries,  and  her  act  shall 
make  the  liusband  chargeable  ;  but  siie 
cannot  borrow  money  to  lay  out  for  neces- 
saries. So  it  is  of  an  infant.  He  may 
buy  necessaries,  but  he  cannot  borrow 
money  to  buj-,  for  he  may  misapply  tiie 
money;  and  therefore  the  law  will  not 
trust  him  but  at  the  peril  of  the  lender, 
who  may  lay  it  out  for  him,  or  sec  it  laid 
out,  and  then  it  is  liis  providing,  and  his 
laying  out  so  much  money  for  necessaries 
for  him. 

And  assumpsit  will  lie  for  a  loan  to  the 


wdfe  at  the  request  of  the  husbaml.  Ste- 
venson V.  Hardie,  2  W.  IJlk.  ti7'J.  Su 
where  the  declaration  was  for  nitiit,  etc., 
furnished  by  the  jilaintilf  at  tiie  ilifcnil. 
ant's  ro(£uest,  and  the  evidence  was  tlwt  it 
was  furnished  to  the  delendant's  wil'f,  at 
his  request,  in  his  absence,  it  was  hiM  tiiat 
a  delivery  to  the  wife  at  the  huslmml's  re- 
quest is  a  delivery  to  the  IiusIkuhI.  Kos 
V.  Noel,  Bull.  N.  P.  136.  See  iiac.  Ab. 
Assuiii//.iit,  v.;  Com.  Dig.  Burtmd  Fcmt, 
A.  And  in  Pennsylvania  it  has  lutn  lail, 
under  their  Acts  of  1718  and  I8,'j."),  that  a 
married  woman  could  herself  oliiaiii  an 
attacliment  against  her  husband's  |ii'iiji- 
erty  for  money  expended  by  her  lur  the 
support  of  herself  and  chiidivii  en  liis  de- 
sertion of  them,  and  could  iiavc  ai;ai:ist 
him  therefor  the  same  remedies  iit  law  as  a 
feme  sole,  lleillev  v.  Heilley,  4  Bivw.st.  PJ9, 
And  see  Burke  v.  Weiikle,  2  8.  &.  W.  I'.t. 
There  is  another  question  closely  ikhi- 
nected  with  that  of  the  ability  of  mw  who 
has  lent  or  advanced  money  to  a  iiianii.ii 
woman  to  buy  necessaries,  to  rei'uver 
therefor  from  her  husband,  of  iiiueh 
greater  nicety  than  that  is,  and  iu  i.uii- 
nection  with  which  the  conliiit  in  the 
authorities,  in  both  England  and  Amer- 
ica, is  unquestionable.  It  is  as  to  the 
riglit  of  the  wife,  independent  of  tlii'  stat- 
utes pa.ssiid  for  her  relief,  to  cdiiipi-l  iier 
husband,  by  }iroceedings  in  equity,  to  [no- 
vide  for  her  maintenance,  outsiili,'  of  any 
apjilieation  for  divorce.  It  is  statnl  iu 
some  of  the  text-books  (see  2  Sto.  Ki|.  Jur, 
§  1422),  and  iu  some  of  the  cases,  that  the 
doctrine  held  in  England  is,  thai  the  obli- 
gation of  the  husband  to  pioviili'  a  suit- 
able maintenance  for  his  wife  is  not  a  iluty 
of  wiiich  courts  of  equity  will  dciici'  the 
specilic  performance,  by  requiring  liiiii  to 
furnish  a  separate  niaiiitenaiice.  That  the 
remedy  is  in  the  courts  of  law,  by  ai:tioii 
against  the  husband,  in  favor  of  any  one 
who  may,  under  such  eireumstaiici's,  have 
sujipliod  the  wife  with  necessaries  suitaMe 
to  her  condition  in  life  ;  that  the  jiiiisilic- 
tion  of  decreeing  alimony  beloiij,^  to  the 
spiritual  court,  and  can  be  jnopi  rly  i  xer- 
cistd  in  that  court  as  incidental  to  a  ile- 
creo  of  divorce  only,  and  is  not  within  the 
jurisdiction  of  a  court  of  eiiuitv.  Nieely 
V.  Nicely,  3  Head  (Teiin.),  "iSl,  1^'i. 
But  it  is  added  in  this  ease:  "Saih  siinij 
to  be  the  general  doctrine  of  the  Klll:!i^h 
cases,  though  the  cases  upon  this  .Miliirt 
do  not  altogether  agree."  It  was  I'liriher 
said  in  that  ease:  "But  in  soiin'  of  the 
American  courts  a  more  reasoiialih'  iloe- 
trine  lias  prevailed ;  and  the  jmis'lii'tion 
of  a  court  of  equity  in  such  casus  has 


r-t--  ■ 


PiUT  III.] 


MARRIED   WOMEN. 


199 


incidental  purposes,  no  possession  or  enjoyment  of  property  sep- 
arate and  apart  from   their  husbands.     They  deny  to   married 


been  iiiiiintiurieil  upon  gt'nerul  principles, 
;iiiil  fs|icciiilly  upon  the  utter  inadequuey 
lit'  till!  icmcdj'  at  law."  Tiie  court  ox- 
iiKs.sL'cl  their  intention,  hiul  it  lieen  ncces- 
sirv  to  liiive  done  so,  to  have  Ibllowed  the 
lioliliiitr  in  tlioso  cases  ;  but  they  decided 
tliut  ill  Tennessee  this  power  was  expressly 
iDiifeireJ  on  courts  of  eipiitv  liy  stat- 
ute, -  Aet  of  183;-),  ch.  2(3,  §§  18  and  19  ; 
Nicely  0.  Niiely,  3  Head,  184. 

Altiiiiiiuli  the  En{j;lisli  cases  are  f^ener- 
ally  to  the  elleit  as  slated  ill  Nicely  v. 
Njicly,  3  Head,  184,  there  are  cases  in 
ljij;l;iii(l  where  the  court,  liavinj^  control 
of  hiiels  to  which  the  husband  was  en- 
titled, has  laid  hold  of  such  funds,  and 
i'oiii["il'Hl  the  husband  to  make  suitable 
provision  fur  the  sup|)ort  of  the  wife  out 
uf  siieh  funds,  and  in  other  cases  has 
giaiili'd  alimony  where  such  a  state  of 
allairs  docs  not  seem  to  Iiave  existed.  See 
l.iisliliidok  V.  Tyler,  1  Ch.  U.  24;  Ashton 
r.  A.-htuii,  Iliid.  87;  Uussell  v.  Bod- 
will,  ;/'/-/.  Oil;  Wliorwood  v.  Wlior- 
H(jod,  //'/'/.  118;  Nichols  v.  Dan  vers, 
i  Vein.  7<)1;  Oxenden  v.  Oxeuden,  Ibid. 
iK :  Aiij,'ier  v.  Angier,  Gilb.  Ch.  l.')2 ; 
Williams  r.  Callow,  2  Vern.  7.'')2  ;  Wat- 
kviis  I'.  Wat ky lis,  2  Atk.  96  ;  Bullock  v. 
Miii/.iis,  4  Ves.  7!>8;  Guth  v.  Guth,  3  Bio. 
e.  C.  (!14;  Wright  v.  Morley,  11  Ves.  20; 
UuiuMii  V.  Dniiean,  19  Ves.  394. 

Ill  a  verv  old  case  (a.  I).  1706),  Oxc^ii- 
(leii  r.  Oxeiideii,  Gilb.  Ch.  1  ;  2  Vern.  493, 
it  was  olijeeted  that  the  court  had  no  juris- 
diitioii  ill  till!  case  of  alimony;  but  counsel 
said,  to  which  the  Lord  Keeper  agreed, 
"that  this  was  as  projier,  if  not  a  ])ioperer, 
Place  tliaii  the  Spiritual  Court  ;  For  the 
Siiiiitual  Court  has  only  a  coiiseijuential 
Juiisdietion  for  Alimony,  always  subse- 
quont  to  a  Separation,  unless  ])ru  iiiinis  ct 
('//iii/.s/s,  and  a  present  Subsistence  ;  but 
this  Court  has  an  original  Jurisdiction,  or 
lit  least  a  eonciirient  Jurisdiction  with 
the  S|iiiitiial  Court,  as  in  the  Cases  of 
I.e;,'ai  ies,  I'lcdiates,  &c.  Hut  the  Lord 
Keeper  said  this  Court  couhl  neither  sep- 
arate II  Mnina  <£,•  Thoro,  nor  «  Vinciilii ; 
these  Iieiiig  matters  merely  spiritual." 
IJiit  in  Aiigier  v.  Angier,  Gilb.  Ch.  153, 
it  was  said,  that  "  tho'  this  Court  could 
not  ikcnr  Alimony,  yet  it  might  decree 
Exeeiitioii  of  Articles  according  to  the 
Parties'  own  Agreement;  and  several  I're- 
i^edeiits  had  lieen  in  this  Court  to  that 
Purpose,  as  Sir  James  Oxenden  and  his 
Lady,  and  a  case  of  Cutting  and  Cutting, 
and  several  other  Cases.  My  Lord  Cliaii- 
cdlor  was  of  the  Same  Opinion,  and  said, 
todeerc'an  Execution  of  Performance  of 
these  Articles,  was  not  to  invade  tho  Juris- 


diction of  the  Si)iritual  Court."  And  in 
Whorwood  V.  Whorwood,  1  Ch.  R.  118, 
the  judges  certified  in  Mich.  Term,  1662, 
that  decrees  for  alimony  made  in  the  Court 
of  Chancery  "  in  the  late  times"  were  con- 
iirined  by  the  act  for  confmnation  of  judi- 
cial proceedings.  And  this  is  explained 
by  Lord  Loughborough,  in  Legard  v.  John- 
son, 3  Ves.  359,  thus:  "Soon  after  the 
civil  war  there  had  been  a  decree  by  the 
Ijonls  Coininissioners.  There  being  no 
Ecclesiastical  Court,  the  jurisdiction,  some 
way  or  other,  got  there."  The  ca.se,  liow- 
ever,  of  Oxemien  v.  Oxenden,  Gilb.  Ch.  1, 
rei'erred  to  above,  was  long  subsequent  to 
thi.s.  But  there  is  no  doubt  thiit  for  a 
long  period  back  no  such  jurisdiction  has 
been  exercised  iii  the  Knglish  courts.  See 
Hall  V.  Moiitgoniery,  2  Ves.  191;  Legard 
V.  Johnson,  3  Ves.  352;  Mildniay  v.  Mild- 
may,  1  Vern.  53  ;  Ilincks  v.  Kelthorpe, 
Ibid.,  204;  Head  i\  Head,  3  Atk.  547; 
Duiii^an  V.  Duncan,  19  Ves.  394.  In  Head 
V.  Head,  3  Atk.  547,  550,  Lord  Hard- 
wicke  said:  "  1  do  not  liiul  that  this  court 
ever  made  a  decree  to  com])el  a  husband 
to  ])ay  a  separate  maintenance  to  liis  wife 
unless  upon  an  agreement  between  them, 
and  even  upon  this  unwillingly." 

In  this  country  the  courts  in  some  of 
the  States  have  a.ssumed  such  jurisdictior 
in  chancery,  while  others  have  refused  lo 
exerci.se  it.  In  some  of  the  ca.ses  where 
such  jurisdiction  has  been  assumed,  it  lias 
been  claimed  on  the  giound  of  avoiding 
circuity  of  action.  I'apiity,  however, 
never  obtains  a  special  jurisdiction  on 
that  ground.  Another  ground  taken  is 
that  inasmuch  as  the  system  of  s]iiritual 
courts  as  in  England  was  not  adoj)ted  in 
this  country,  chancery,  in  this  country, 
possesses  all  the  powers  of  the  spiritual 
courts  in  England.  To  this  it  might  be 
rejdied  that  even  in  the  s]dritual  courts 
alimony  was  never  granted,  except  either 
pi:ndcntc  Ulc  on  an  application  for  a  di- 
vorce, or  as  incidental  to  a  divorce  on 
that  being  granted;  whereas,  in  this  coun- 
try, where  the  ei|uity  (ourts  claim  the 
right  of  granting  the  wife  a  separate  main- 
tenance, it  is  not  as  an  incident  to  a  di- 
vorce, but  on  an  indejieiulent  a]iplication. 
It  seems  clear  that  there  is  no  well-de- 
cided ease  in  England  in  which  a  sejiarate 
niaintenance  was  granted  to  a  wife  out  of 
her  husband's  estate,  either  by  the  eccle- 
siastical or  ecjuity  courts,  on  a  simple  ap- 
jilieation  for  such  separate  maintenance, 
as  has  been  repeatedly  done  in  this  coun- 
try. In  Duncan  v.  Duncan,  19  Ves.  394, 
397,  Sir  Wni.  Grant  say.s,  quoting  Lord 
Loughborough  :  "  It  is  contrary  to  the  es- 


•  i 


•  1 


III 


i 


I      \ 


'O 


if  1 1' 


!  <1 


200 


COMMENTARIES  ON   SALES. 


[book  II. 


women  both   the   power  to   contract  and   the   power  to  cnjov. 
Courts  of  equity,  on  the  other  hand,  have,  through  the  medium  of 


tablisheil  doctrine,  that  a  tnarrii'il  woman 
bIiouUI  h:  u  |ilaiiitiir  in  a  suit  in  tins 
courc  for  s('[)iirato  ;naintenanun  ;  takin;;  it 
now  to  1)0  the  cstahlislied  law,  that  no 
court,  not  evon  the  ecelesiastical  court, 
has  any  original  jurisdiction  to  give  a  wile 
a  separate  ni:iintiMiaiice.  It  is  always  as 
incidental  to  some  other  matter  that  she 
becomes  entitled  to  a  separate  jirovision  ; 
as  if  she  applies  in  this  court  for  a  .iiip/di- 
cavit  for  security  of  the  [leace  against  her 
husband,  and  it  is  necessary  she  should 
live  a])art.  As  ini'iderital  to  that,  the 
ciiancellor  will  allow  her  separate  mainte- 
nance :  so  in  the  ecclesiastical  court,  if  it 
is  necessary  for  a  tlivorce  a  incusn  cl  thoro 
propter  sicvUinm."  See  Hall  v.  Mont- 
gomery, 2  Ves.  191,  195,  per  Lord 
Lough  borough. 

In  tills  country,  in  Massachusetts,  an 
applicati  in  was  matle  for  alimony,  in  con- 
nection with  an  application  for  a  su/ipli- 
cavit,  and  was  refused.  Adams  v.  Adams, 
100  Mass.  -Mu).  The  court  held  that  it 
never  was  the  direct  object  of  the  writ  of 
supplicnvit  to  give  alimony,  and  that  an 
attempt  to  use  the  ])rocess  for  the  direct 
purpose  of  obtaining  alimony  to  enalile 
the  wife  to  have  a  permanent  sejiarate 
maintenance  was  an  abuse  of  the  writ. 
And  .see  (!oil<l  c.  Codd,  2  Johns.  Ch.  141, 
per  Chancellor  Kent.  Hut  in  Prather  v. 
Prather,  4  Dcsaus.  (S.  C.)  315,  a  separate 
maintenance  was  decreed  on  an  ajiiilicalion 
for  that  writ.  In  Georgia  it  has  lieen  held 
that  jurisdiction  over  divorce  and  alimony 
has  been  given  by  statute  to  the  common- 
law-courts,  and  that,  therefore,  they  suc- 
ceed to  the  powers  whii'li  W(M'e  exercised 
in  England  over  such  matters  by  the  eccle- 
siastical courts,  and  that  the  courts  of 
chancery  have  no  jurisdiction  to  grant  ali- 
mony, either  jiermaneiit  or  pcndcntr,  lite. 
McGee  v.  Mc(Jee,  10  Ga.  478.  It  has 
also  been  held  in  North  Carolina,  that  as 
no  statutory  provision  has  been  made  for 
it,  the  courts  in  that  State  have  no  power 
to  grant  alimony  pendente  lite.  Wilson  v. 
Wilson,  2  Dev.'&  li.  (L.)  377.  In  Texas, 
too,  an  application  for  separate  mainte- 
nance has  been  refused  where  the  wife  was 
not  seeking  for  a  divorce.  Trevino  v. 
Trevino,  ()3  Tex.  6.50.  And  see  a  very 
valuable  di.-.senting  o])inion,  with  which 
we  cntirelv  concur,  by  Sprague,  J.,  in 
Gallaud  v.  GallamI,  38  Cal.  26.5,  272, 
with  which  Sanderson,  ,1.,  concurred. 
Antl  see  a  most  elaborate  judgment  on  the 
subject,  by  Parker,  C.  J.,'  in  9  N.  H.  309, 
317,  where  the  (piestion  is  very  ably  dis- 
cus.sed  by  that  profound  lawyer,  and 
where  it  was  held  that  the  court  of  chan- 


cery had  no  jurisdiction  to  grant  alimony, 
which  term,  says  tlie  learned  cliii^rjiisiice 
"as  generally  used  in  the  English  Imoks 
means  a  portion  or  sum  allotted  tu  tlie 
wife  for  her  maintenance,  from  yiiir  to 
year,  either  during  a  matrimonial  suit  or 
upon  a  divorce.  1  Bl.  Com.  441  ;  (  ij.jkt 
V.  Cooke,  2  Phill.  Ee.  40;  Stivrt  v. 
Street,  2  Addams'  Ec.  1;  llanii'itcu  ». 
Hamcrton,  1  Ilagg.  Ec.  23  ;  De  iilai|iiitre 
V.  De  Blaipiicre,  3  Hagg.  322.  And  it 
lias  been  held  that  it  shall  be  sued  Ibr  in 
the  s[)iritual  courts,  and  not  in  c'laiicciy, 
2  Shower,  290.  It  may  be  allotiod  pen- 
dente lite."  The  case;  referred  to  fiom 
Shower  was  decided  after  the  restoraiion 
(34  &  35  C-ir.  2),  Anonymous  Casi,  -iti'j, 
where  it  was  hehl  that  "  the  chancciy  will 
allow  oj'  demurrer  to  such  bills  Ibr  ali- 
mony." And  see  2  Com.  Dig.,  Chancery 
(2  li).  The  law  has  been,  in  ellict,  so 
decided,  also,  in  Indiana.  Fisclili  i', 
Eischli,  1  Hlackf.  360  ;  Chapman  i:  Ciiiiii- 
man,  13  liid.  396.  And  in  Missis,si|iiii, 
Lawson  V.  Shot  well,  27  Miss.  630,6:i;i.  (Hut 
.see  Porter  y.  Porter,  41  Mis.s.  116;  tiailami 
V.  (Jarland,  .50  .Miss.  694  ;  Uewees  v.  Dtw- 
ees,  55  Miss.  315  ;  Verner  v.  Verncr,  62 
Miss.  260,  under  the  Mississippi  statutes.) 
And  in  Jlissouri.  Doyle  v.  Doyle,  'it!  .Mo. 
545,  549.  In  Michigan.  Peltier  v.  I'llticr, 
llarring.  Ch.  19,  29.  And  in  New  Jcr. 
sey.  Yuley.  Yule,  10  N.  .).  Ei|.  138,  14o; 
independent  of  their  statute.  Corv  r. 
Cory,  11  N.  J.  Eq.  400.  .See,  also.  I'Vrry 
V.  i'erry,  2  Paige,  501  ;  Mix  i-.  Mix,  I 
Johns.  Ch.  108;  Ijcwis  v.  Lewis,  3  .liil,ns, 
Cli.  519;  Shannon  v.  Shannon,  68  Miss. 
285  ;  Harrington  v.  Harriiigtoii,  lo  Vt. 
505  ;  Wilson  v.  Wilson,  2  Dev.  &  H.  ;i7" ; 
Helms  i>.  Framuscus,  2  Hland,  565;  i  nuie 
V.  Meginnis,  1  Gill  &  J.  463,  474;  nniin- 
ock  V.  Drnmock,  3  Md.  Ch.  140,  142, 
ct  seq.  We  think  the  weight  of  reason 
and  authority  is  with  this  holding  ;  Imt  iis 
the  question  is  one  degree  farther  reliKivrd 
from  the  law  of  Sales  than  where  a  lliiiil 
party  has  ailvani'ed  money  to  the  wife  for 
the  express  purpose  of  ])ur(liasiiig  luces- 
saries,  we  do  not  hen;  piirsiK^  th.'  ipiisiion 
further,  ex<!ept  to  cite  soiiie  of  the  .Ami'ri- 
ean  authorities  in  which  the  o])posite,  iiml 
what  we  think  is  the  incorrect  iloitrine 
on  the  subject,  has  been  held.  See  (lal- 
laud  V.  Gallaud,  38  Cal.  265  ;  lliiller  v. 
Rutler,  4  Litt.  (Kv.)  202;  \Vliitconil>  d. 
Whitcomb,  46  Iowa,  437 ;  Graves  v. 
Graves,  36  Iowa,  310  ;  Farber  v.  Kniber, 
64  Iowa,  362,  under  tlic  Iowa  stitiite. 
(But  see  O'Ma'.Mii  r.  O'llau'an.  4  In«a, 
516,  517;  McMuUen  y.  .M.'Mullen.  412, 
414,  cutitni).-  Nicely  r.   Nieclv,   3  llcwl 


PART  HI.] 


MARRIED   WOMEN. 


201 


trusts,  created  for  married  women  rights  and  interests  in  prop- 
erty, butli  real  and  personal,  separate  from  and  independent  of 
their  liusbands.  To  the  extent  of  the  rights  and  interests  thus 
created,  whether  absolute  or  limited,  a  married  woman  has  in 
courts  of  iMpiity  power  to  alienate,  to  contract,  and  to  enjoy.  In 
fact,  slio  IS  considered  in  a  court  of  ecpiity  as  a  feme  sole  in  re- 
spect of  pr()i)erty  thus  settled  or  secured  to  her  separate  estate. 
It  is  from  this  position  of  married  women,  and  from  the  rights 
and  pouui's  incident  to  it,  that  the  claims  of  creditors  against 
separate  estates  of  married  women  have  arisen.^ 

Tlie  eases  are  very  numerous  which  have  established  that  the 
bonds,  bills  of  exchange,  and  i)romissory  notes  of  married  women 
are  payal)le  out  of  their  separate  estate.^ 

The  separate  ])ropcrty  of  a  married  woman  is  also  bound  for 
her  general  engagements,  if  it  appears  that  such  engagements 
were  made  with  reference  to  and  upon  the  faith  or  credit  of  that 
estate,  and  whether  it  was  or  not  is  a  question  to  be  judged  of  by 
the  court  upon  all  the  circumstances  of  the  case.^ 


(IVnii.).  18-*.  186;  Puivfll  v.  Piircdl,  4 
lli'ii.  >^  .M.  507,  50!)  ;  Aliiioml  v.  Alinoiul, 
4  Hand.  (Jii'J  ;  Dauiuls  v.  Daniels,  9  Col. 
13:!,  117,  ct  SCI].  ;  (Uovur  r.  (ilovcr,  16  Ala. 
44(1;  Hiiuls  I'.  Hiiuls,  22  CVnt.  Law  J. 
308  ;  I'latncr  i".  I'latiier,  66  Iowa,  a78  ; 
Kiiiii  r.  Finn,  62  Iowa,  482  ;  Paterson  v. 
I'atcTson,  1  llalst.  Cli.  889  ;  Thompson  v. 
Thompson,  10  Rich  K(|.  416. 

As  far  as  these  cases  are  deuided  on  the 
pronint  that  eiinity  has  an  ori<,'inal  juris- 
(lictiiiii  over  tlie  question  of  aliinony  or  a 
si'parale  allovvanee  to  married  women,  in- 
(l(]ioii(lent  (if  iiiiy  other  subjeot  connected 
witli  it  (and  these  cases  are  nearly  all  dc- 
dded  DM  that  j;round),  we  think  they  are 
wroni;iy  decided,  Wliile  it  is,  of  eour.se, 
unijiiestidnalile  that  such  powers  may  he 
Kiaiitcd  to  I  iinnnissioners,  or  he  loijalized 
hy  act  of  |iailiainent,  as  well  as  conferred 
upon  courts  of  (diancery  or  any  other 
courts  by  statute:  yet  we  think  these  cases 
do  not  sustain  the  ]M)sition  that  sucli  pow- 
ers jiiTtain  to  cliancery,  as  that  court  and 
its  piiiiiiplcs  were  derived  by  this  country 
from  Kniiland.  .Some  of  the  cases  purport 
to  lie  ilccided  on  the  ntaxiin,  Uln  jus  ibi 
mni'illidii  ("  There  is  no  wrouR  without  a 
iviiicdy "),  hut  a  similar  ajtplication  of 
tliat  ]iriii(iple  to  the  case  of  an  infant 
would,  with  almost  eijual  consistency,  ad- 
mit of  a  minor  filiur;  a  hill  again.st  his 
father  for  separate  nuiintenaiice.  We 
think  the  maxim  more  applicable  to  such 
ca.scs  is,  iliDiiniim  absque  injuria. 

For  .\tnevicaii  ca.scs  where  a  remedy 
Iws  liccn  i,'iven  in  accordance  with  the 
English  eluince.y  decisions,  see   Glen  v. 


Fisher,  6  Johns.  Ch.  33  ;  Cape  v.  Adams, 
1  Des.  .'-.67  ;  Tattnell  v.  Fcnwick,  1  Des. 
143;  Tucker  v.  Andrew.s,  13  Me.  134; 
Heath  V.  Heath,  2  Hill  Ch.  104  ;  Kees  v. 
Waters,  9  Watts,  90  ;  Perryclear  v,  Ja- 
cobs, 9  Watts,  .^09  ;  Myers  v.  Myers,  1 
Bai.  Eq.  24  ;  Helms  v.  Franciscus,  2 
Hland,  54.'J  ;  Ti^vis  v.  Richardson,  7  Mour. 
(Ky.)  660  ;  Van  Epps  r-.  Van  Dcusen,  4 
Paitje,  64  ;  Howard  v.  Moll'at,  2  Johns. 
Ch.  206.  And  see,  further,  as  to  relief 
under  statutes,  Nuetzel  v.  Nuetzel,  13  111. 
Ajip.  542  ;  Pell  v.  Walsh,  130  Mass.  163  ; 
The  State  v.  Witham,  130  Mas.s.  473; 
Harris  v.  Harris,  101  Iiid.  498  ;  Peck  «;. 
Marlinji's  Adm'r,  22  W.  Va.  708  ;  Vohe 
I'.  Barnet,  1   Hiun.  358. 

1  Johnson  V.  (iullasher,  3  De  G.  F.  &  J. 
494,  509,  per  Turner,  \,.  J.,  approved  in 
Picardu.  Hine,  L.  H.  5  Ch.  A)..  274,  276, 
277,  per  Hatherley,  L.  C,  and  Gifl'ard, 
L.  J.  ;  hj'  the  judicial  committee  of  the 
Privy  Comunl,  in  the  I^ondon  Chartered 
Iiaidv  of  Australia  v.  Lamiuere,  L.  P..  4 
P.  C.  572,  594  ;  and  in  Pike  i-.  Fitz<;ih- 
boti,  14  Ch.  Div.  837,  841,  hvMalins,  L.  C. 

•■2  X.irton  r.  Turvill,  2  P.  Wnis.  144; 
Stanford  v.  Marshall,  2  Atk.  68  ;  Peacock 
V.  .Monk,  2  Ves.  Sen.  190 ;  Hulme  v. 
Tenant,  1  Bro.  C.  C.  15 ;  Dillon  i-. 
Grace,  2  Sch.  &  Lcf.  456;  Heatley  v. 
Thoma.s,  15  Ves.  596;  Bullpin  v.  Clarke, 
17  Ves.  365  ;  Field  v.  Sowle,  4  Russ.  112  ; 
Stuart  V.  Lord  Kirkwall,  3  Madd.  387. 

'  The  leading  ca.se  on  this  question  is 
Hulme  V.  Tenant,  1  Bro.  C.  C.  15,  in 
which  it  was  distinctly  laid  down  by  Lord 
Ro.sslyn  that  the  separate  estates  of  mar* 


; 


:M 


!l 


y 


J, ' . 


202 


COMMENTARIES  ON   SALES. 


[book  H. 


VVhoro  a  married  woman  is  living  separate  from  her  husljand, 
that  is  a  strong  reason  for  saying  tliat  she  intended  to  bind  tluit 
property  out  of  whicii  alone  she  could  pay  that  which  she  con- 
tracted to  |)ay.  When  she  by  entering  into  an  agreement  allows 
the  supposition  to  be  made  that  she  intends  to  perform  the  agree- 
ment out  of  her  property,  she  creates  a  debt  which  may  be  recov- 
ered not  by  reaching  her  but  by  reaching  her  property.* 


vm\  woiiicu  are  liable  I'or  their  general 
eiij^a'^eiiieiiU.  This  has  been  followed  by 
numerous  eases.  In  Milnes  v.  Busk,  'J 
Ves.  Jr.  488,  iionl  Loughborou;;h  saiil  : 
"As  to  all  her  (lel)ts  anil  en^^a^cnients, 
with  re;,Mril  to  that  she  shall  be  answer- 
able as  ii/rinn  soli;  would  be  to  the  extent 
of  that."  .See  also  .Murray  v.  Barlee,  3 
llyl.  >i  K.  '.'uy ;  Owens  v.  Dickenson, 
Cr.  &  I'h.  48  ;  Hm  ke  v.  Tiiite,  lit  Ir.  li. 
&  li.  \l.  4iJ7  ;  Vauj,'han  c.  \'and(U-ste;,'en, 
2  Drew.  1»;5,  2S!t,  ;5(i3,  403  ;  \Vii<rht  v. 
Ciiard,  4  Drew,  »>7;i.  Hut,  as  slated  in 
the  text,  to  bind  her  separate  estate,  it 
must  aii[)ear  that  the  enj^aj^einent  was 
made  with  refi.rent^e  to  and  upon  the  faith 
or  credit  of  that  estate.  With  rel'erenee 
to  this  Lord  Justice  Turner,  in  Jolmson  o. 
Gallaj,'her,  3  De  (i.  K.  &  J.  4'.tt,  .'Ji4,  while 
saying,  "  Xot  only  the  bonds,  bills,  and 
prouiissory  notes  of  married  women,  but 
also  their  general  engageni'^nts,  may  aU'eet 
theii  separate  estates,  exee|)t  as  the  statute 
of  frauds  may  interfere  wherif  the  se|)arate 
pro[)erty  is  real  estate,"  adds,  "  To  alfect 
the  separate  estate  there  must  be  .some- 
thing more  than  the  mere  obligation 
which  the  law  would  create  in  tin;  case 
of  a  single  woman.  What  that  something 
more  may  be  must,  I  think,  dip  'ud  in  each 
ca.se  upon  tiie  circumstancits.  What  might 
alfect  the  se]iarate  estate  in  the  ease  of  a 
maii'ied  woman  living  separate;  from  her 
husbanil  might  not,  as  I  apprehend,  alfect 
it  in  the  case  of  a  married  womm  living 
with  her  husband.  What  migiit  bind  the 
sejiarate  estate,  if  the  credit  be  given  to 
the  married  woman,  wouhl  not,  as  i  con- 
ceive, bind  it  if  the  credit  be  not  so  given. 
The  very  term  'general  engageiiKuit,'  when 
a|)i)lied  to  a  married  woman,  seems  to  im- 
port soin  thing  more  than  mere  contract, 
i'or  ni'ither  in  law  nor  in  ei|uity  can  a 
married  woman  bo  bound  by  contract 
merely  ;  Aylett  v.  .Vshton,  1  .Nlyl.  &  Cr. 
10,5."  And  see  Jones  v.  Harris,  l»  \'es. 
41(3;  Aguilar  y.  Aguilar,  5  .Maibl.  414; 
Greatlev  w.  Xoble,  3  .Madd.  7it  ;  Stuart  v. 
Lord  Kirkwall,  3  Madd.  387.  And  in 
Tullett  y.  Armstrong,  4  Heav.  319,  Lord 
Langdale  said  :  "  It  is  perfectly  clear  that 
when  a  woman  has  ju-operty  settled  to  her 
8e)>arate  use,  she  may  bind  that  property 
without  distinctly  stating  that  she  intends 
to  do  so.     iSho  may  enter  into  a  bond, 


bill,  jiromissory  note,  or  other  obligatinii, 
which,  considering  her  statt;  as  a  niiuiiid 
woman,  could  only  be  sitislied  by  iieiins 
of  licr  separate  estate  ;  and  thcntdre  the 
inference  is  conclusive  that  theii'  wu.s  aii 
intenticni,  and  a  clear  one,  on  lur  [ait 
that  her  separate  estate,  which  WdiiM  be 
tiie  only  means  of  satisfying  the  oliliijiitiuii 
into  which  she  entered,  should  Ijc  buiiiiil. 
Again,  1  apprehend  it  to  be  clear  tlwt 
where  a  married  woman  having  sc|iaiat(! 
estate,  but  not  knowing  perfectly  tiie 
iiatun;  of  her  interest,  executes  an  in.stni' 
inent  by  which  she  plainly  shows  an  iiiteii- 
tion  to  bind  the  interest  which  bcloiij,',s  to 
her,  then,  though  she  may  make  a  mis- 
tak(!  as  to  the  extent  of  the  estate  vested 
in  her,  the  law  will  say  that  such  estate  m 
she  may  have  shall  be  bound  by  her  own 
act.  But  in  a  case  where  she  enters  into 
no  bond,  contract, coviMiant,  or  oliligatioii, 
and  in  no  way  contracts  to  do  any  act  on 
her  pai't ;  where  the  instrument  wiiicli  .she 
executes  does  not  imr[)c)rt  to  iiiiul  or  to 
jiass  anything  whatev<'r  that  bilcmgs  to 
her;  and  where  it  must  cunsci|Ucii;ly  be 
left  to  mere  inference  whether  she  intiinkJ 
to  alfect  her  estate  in  any  manner  or  way 
whatever,  the  case  is  entirely  liill'iTLiit 
either  from  the  case  where  she  exciutcsa 
bon<l,  promissory  note,  or  other  iiistni- 
inent,  or  where  she  enters  into  a  covenant 
or  oliligation  by  which  she,  being  a  mar- 
ried woman,  can  be  considered  as  bimlini,' 
her  separate  estate."  And  see  ;»'/■  Lord 
li'edc.sdale,  in  Dilliui  v.  'irace,  i  Seli,  i 
Let".  4.'.6,  463  ;  Wright  v.  En^b'licM, 
Ambl.  4(JS;  lleatlev  w.  Thomas,  l.'i  Ves. 
5!)t);  Cop]un  v.  Gray,  1  Y.  &  ('.  N.  C  iiW; 
liulipin  V.  Clarke,  17  Ves.  3(i5  ;  I'ield  r. 
.Sowle,  4  Uuss.  112;  .Murrav  i'.  liaiiec,  4 
Sim.  82  ;  3  Myl.  &  K.  2(i'.l  ;  (hvensy.  Dick- 
enson, Cr.  &  I'll.  48;  Crosliy  v.  (,'huicli,  3 
Bea.  48-). 

1  Pieard  v.  Hine,  f-.  R.  .'5  Ch.  Ap.  274, 
277,  per  Lord  Matlierley.  In  Mrs.  Mat- 
thewman's  Case,  L.  K'.  3  Ki|.  781,  787, 
the  law  is  thus  clearly  stated  :  ''  il  a 
married  woman  having  separate  property 
enters  into  a  pecuniary  engatrdiient, 
whether  by  ordering  goods  or  otlieiwise, 
which,  if  she  were  a  feme  sale,  woubl  con- 
stitute her  a  debtor,  and,  in  entering  into 
such  engagement,  she  ])urpoits  to  coMiraot, 
not  for  her  husband,  but  lor  herself,  aud 


A]".  274, 
its.  Milt- 
fSl,  7S", 

ipviiin'rty 

llU'l  Illl'Ilt, 

lluTwisc, 
luM  coil- 
\'wj.  into 
[•out  mot, 

Jself,  and 


I'AI'.T   III.] 


MARRIED   WOMRN. 


203 


IJL 


Ijut  the  general  engagements  of  a  married  woman  entitled  to 
separate  estate  eau  only  be  enforced  against  so  much  of  the  sepa- 


oii  the  cntlit  ot  her  separate  estato,  nuil  it 
\i.is  M)  iiitiiidftl  by  liur,  uiul  so  uiuluistooil 
liv  ilic  jii  Thoii  with  wliuiii  slie  is  foiitniul- 
iii^',  tliiit  ooiistiluti'.s  an  obli^'atioii  lor 
wlarli  the  iicr.soii  willi  whom  .she  coiitraets 
liii.>  ilie  ri^lit  to  make  her  seiiariitc  estate 
liiilile  ;  ami  tlu'  ([uestioli  wlietlier  tlie  ohli- 
"iitiuM  was  eoiitnicieil  in  tlie  manner  1 
liavi'  nuiitioned  must  ilepenil  U|ion  the 
liiil.-.  aiiil  ( in-iimstanees  of  each  partieuhir 
(M.-r.  ll  eleaily  is  not  necessary  tliat  tlie 
iiiiitiact  shoulil  lie  ill  writini,',  hceause  it 
is  iiMW  aJiiiitteJ  that  if  it  married  woman 
i'iil<rs  into  a  verlial  eolitraet  ex[iiessly 
liiakiiii,'  her  scpanite  estate  lialile,  sueli 
idiitriii  t  would  liiiid  it  ;  nor  's  it  neces- 
sary thai  there  should  be  any  '  xpress  ref- 
ei'ciiic  made  to  the  fact  of  there  beiiii,' such 
scpiiiate  estate,  for  a  bond  or  promissoiy 
imic  ^'ivcii  by  a  married  woman,  without 
iiiiy  luiiition  of  herseparate  estate,  has  loiij; 
liiMii  held  slitlieieiit  to  make  her  separate 
estate  liable.  if  the  eireumsl.-iiees  are 
suuii  as  to  h'ad  to  the  eonelusion  that  she 
was  coiitiaetiiif;  not  for  her  liusliand,  but 
for  herself,  in  resjieet  of  her  sejiarato 
estate,  that  separate  estate  will  be  liable 
to  satisfy  the  oblijiation."  Therefore,  in 
tills  case,  where  a  married  woman,  havinj; 
hepaiate  estate,  contracted  to  take  shares 
ill  hiT  own  name  in  a  joint-stoek  eonipany, 
wliicii  wius  aftciwaids  wound  up,  the 
eoiut,  iHini;  of  opinion  that  such  contrael 
was  entered  into  upon  the  eredit  of  her 
si'paiiite  estate,  and  that  the  deed  of  settle- 
iiniit  did  not  excliule  married  women  from 
lii'iiiij  siiaichoiders  so  as  to  bind  their 
sepaiate  estate,  plai'ed  the  married  woniaii 
on  tile  list  of  eontributories  in  lier  own 
ri^lit,  so  as  to  bind  her  separate  estate. 
Mis.  .Matthewmaii'sCase,  L.  11.  »  K(|.  781. 
lint  see  \'aiif,'han  v.  Vanderstet,'en,  2  Drew. 
"il:i,  and  Shattock  v.  .Shaltock,  L.  li.  2  Vj[. 
ISJ,  as  to  the  distinction  between  prop- 
erty wiiich  is  settled  as  the  seiiaiate  estate 
ot  a  iiiaiiied  woman,  ami  property  over 
wliich  she  has  merely  a  power  of  appoint- 
iiii'iit,uiiiclishe  has  exercised,  —  two  ihiiifjs 
pi'ihctly  distinct  from  each  other,  but  v<'iy 
olteii  conroumled.  These  cases  me,  how- 
ever, disapproved,  and  dissented  from  in 
Tile  London  Chartered  Bank  of  Australia 
r.  Lc-niprilMe,  L.  It.  4  I'.  C.  572,  594,  5'JG, 
where  it  is  held  that  the  pmperty  of  a 
iiiiiiiied  woman,  settled  by  an  antenuptial 
.v'ttleiiient  for  her  seiiariite  use  for  life, 
with  remainder  as  she  should  by  deed  or 
will  ainioint,  with  remainder  in  failure  of 
iippoiMtiiient  to  her  e.veeutors  or  adminis- 
tnuors,  is  an  absolute  settlement  for  her 
sole  and  separate  use,  v/itliout  restraint  on 
uiiticipaiion,  and  vests  iu  ei^uity  the  entire 


ciirpiis  in  her  for  all  purpo.ses.  The  dis- 
tinction is  made  by  Lord  Justice  Turner, 
in  Johnson  v.  (lullaj^her,  3  De  G.  V.  &  J. 
4S)4,  51tj,  between  the  eases,  where,  1st,  the 
power  of  apiiointmeiit  has  lieen  f,'eiieial, 
liy  deed  or  wiitiiif;  or  by  will  ;  2nd, 
where  it  has  been  by  will  only  and  tho 
power  has  been  exerci.sed,  luit  not  for 
creditors  ;  and  3rd,  whcie  there  litis 
been  a  limitation  in  default  of  appoint- 
ment, and  the  jiower  has  not  been  exer- 
eised.  In  eases  under  the  third  elas.s 
there  seems  to  be  no  reasonalili!  doubt 
that  the  debts  and  eii;.;nf;ements  of  the 
married  woman  eaniiot  prevail  atjainst  the 
parlies  entitled  in  default  of  ap|iointnient. 
Nail  V.  I'linter,  5  Siiii.  iM.  In  eases 
falliiif,'  under  the  Hist  class,  the  courts 
have  held  the  airpiia  of  the  pro]ierty  to 
be  suliject  to  the  debts  and  eii;;a;,'ements 
of  the  married  woman  :  .Mien  r.  I'ap- 
Worth,  1  Ves.  Sen.  l(i;5  ;  Hiilnie  v.  Tenant, 

1  ISlo.  ('.  C.  15  ;  Ilealley  v.  Thomas,  15 
Ves.  51H!  ;  so  I'ar  at  least,  duriii;^  the  life 
of  the  married  woman,  as  to  all'eet  her 
limited  interest.  lliilnie  v.  Tenant,  1 
Bro.  C.  C.  15  ;  Field  v.  Sowle,  4  Uii.ss. 
112.  As  to  the  .second  class  the  author- 
ities are  not  ill  harmony,  thoiifjh  we  think 
the  weii;ht  of  authority  is  in  favor  of 
holdiiif^  that  the  eieditors  will  take  as 
ii<,'iiiiist  the  aiipointecs.  See  Nolton  v. 
TiirriU,  2  P.  W'ni.s.  141;  S.iekett  v.  Wray, 
4  Bi-o.  C.  C.  48;i  ;  llufihes  v.  Wells,  'y 
Hare,  74!)  ;  Heatley  v,  Thomas,  15  Ves. 
5116  ;  The  London  (,'haitered  Hank  of 
Australia  i'.  Leiiiprieie,  L.  U.  4  1'.  C.  572, 
eondeniniiig  Vauj,diaii  v.  Vanderstejjeii,  !> 
Hare,  47!),  and  Shattock  I'.  Shattock,  L.  11. 

2  El).  182.  In  John.soii  i'.  (!allajrher,  3 
De  (I.  V.  &  J.  517,  l.onl  Justice  Turner 
considered  that  Sir  Win.  (liant  treated  the 
jMiiiit  as  doubtful  in  Heatley  v.  Thoina.s, 
15  \'i's.  5SH).  Sir  Win.  (iiant's  observa- 
tions are  these  :  "The  i|tiestion  is,  w  hetlier 
this  was  separati!  juoperty  to  all  intents 
and  purpo.ses.  lii  Lockett  v.  Wrav,  4 
Bro.  (-'.  C.  483,  Lord  Alvanley  did' not 
consider  a  inarried  woman  who  had  only  a 
jiower  of  appointment  by  will  as  having 
se[iarate  property,  distiiij^iiishiiif;  that  case 
from  Norton  v.  Turrill,  2  1'.  Wins.  144, 
where  the  creditor  was  allowed  to  resort  to 
the  .separate  property  after  the  death  o 
the  wile,  as  she  had  a  jwwer  of  appointing 
by  deed  or  will.  Upon  the  (|iiestion  in 
Lockett  i>.  Wray,  4  Bro.  C.  C.  483,  whether 
the  wife  eould  give  the  projierty  to  her 
husband.  Lord  Alvanley  held  that  she 
could  not  ;  that  she  could  not  allect  it  in 
any  way  but  by  a  revoealile  instrunient  ; 
and  the  bond  was  an  iastruniunt  not  re- 


:ll 


204 


COMMENTARIES  ON  SALES. 


[book  II. 


mi 


rate  estate  to  wliicli  she  was  entitled,  free  from  any  restraint  on 
anticipation,  at  the  time  when  the  engagements  were  entered  into, 
as  remains  at  the  time  when  judgment  is  given,  and  not  against 
separate  estate  to  which  sh.e  became  entitled  after  the  time  ol'  ilie 
engagements,  nor  against  separate  estate  to  which  she  was  enti- 
tled at  the  time  of  the  engagements  subject  to  a  restraint  on  an- 
ticipation. The  reasons  for  this  doctrine  we  consider  are  twu; 
First,  because,  as  the  very  essence  of  the  whole  liability,  the  .si'|)ii- 
rate  property  of  a  married  woman  is  only  bound  for  her  genoral 
engagements  when  it  appears  that  such  engagement.s  were  niado 
witli  reference  to  and  upon  the  credit  or  faith  of  that  estate,  and 
not  on  the  credit  or  faith  of  an  estate  which  she  does  not  possiss, 
or  over  which  slie  has  not  the  j)o\ver  of  anticipation ;  ^  and  second, 
because  to  hold  otherwise  would  be  to  dechirc  .that  a  marrit'd 
woman,  Avho  expressly  has  no  power  of  anticipation,  can  in  el't'oct 
anticii)atc.2 


vowiblo.  If  tliU  was  absolute  separate 
lirnpcrty  in  Mis.  Joliiison,  upon  the  plain- 
till's  construction  of  the  ileetl,  tliat  takes 
it  out  of  tiie  ease  of  Loekett  v.  Wray,  4 
I5ro.  C.  0.  483,  an.l  brings  it  to  tliat  of 
Hulniu  V.  Tenant,  1  Bro.  C.  C.  16."  Ill 
this  case,  a  bond  creditor  of  the  married 
woman  sought  payment  out  of  {jroperty 
appointed  by  her  will.  A  doubt  was  raised 
ill  the  case,  on  the  true  construction  of 
the  settlement,  as  to  whether  it  did  in 
fact  give  lior  a  power  of  disposal,  by  deed 
or  otherwise,  iidrr  vivn>i,  as  well  as  by 
will,  and  that  doubt  beinr;  resolviid  in  the 
atfirmalive,  tl;e  plaintilf  olitained  the  de- 
cree sou^^ht  for  by  him.  Commenting  on 
this,  the  I'livy  Council  say  :  "  In  that 
case  it  is  obvious  that  Sir  Win.  Grant 
considered  that  property  settled  to  a  mar- 
ried woman's  separate  use  for  life,  with 
power  to  dispose  of  it  by  deed  or  will, 
wa.s,  ill  etfect,  separate  property.  That 
case  was  in  one  respect  a  strong  one,  as 
there  was  no  gift  over  except  in  tlio  event 
of  her  dying  in  her  husband's  lifetime. 
She  survived  him,  and,  therefore,  irre- 
..^.-fctive  of  the  settlement,  became  again 
possessed  of  the  projierty  in  her  original 
right ;  .so  that,  upon  the  death  of  her  lius- 
band,  the  properly  stood  settled  to  herself 
for  life,  remainder  as  she  should  by  deed 
or  will  ajipoint,  remainder  to  herself  abso- 
lutely. But,  having  ])roperty,  over  which 
at  the  time  of  making  the  bond  she  had 
absolute  power  of  disposition  notwith- 
standing her  coverture,  the  bond  by  which, 
notwithstanding  her  coverture,  she  had 
bound  hciself,  was  decreed  to  be  .'iatisHed 
out  of  it."  The  London  Chartered  Bank 
of  Australia  v.  Lempriere,  L.  R.  4  P.  C. 
605.  In  this  latter  case,  the  gift  was  to 
the  married  woman  for  her  separate  use 


for  life,  with  remainder,  as  she  sIkhiM, 
notwithstanding  her  coverture,  by  dird 
or  will  appoint,  with  remainder  tn  Iut 
e.xeeutors  or  admiiiistiators.  In  deliver- 
ing  judgment,  the  Privy  Council  siy : 
"Their  lordships  are  satislicd  tiiat,  on  tlie 
weight  of  authority  and  on  princi]ile,  they 
ought  to  treat  this,  as  what  in  c  oiiiiiioii 
.sense  and  to  eomnion  appreiieiision  it  woiilil 
be,  —  an  absolute  gift  to  the  sole  and  siji- 
arate  use  of  the  lady.  The  words  ai v  an  ex- 
pansion of  what  would  be  implieil  in  the 
words  'sole  and  separate  use;'  and  tlnv 
conceive  themselves  at  liberty  to  hold  tliut 
such  a  form  of  gift  to  a  inamed  wninan, 
without  any  restiaiiit  on  anticipation,  vests, 
in  ecfuity,  the  entire  corpus  in  her  for  all 
purposes,  as  fully  as  a  .similar  gilt  t.i  a 
man  would  vest  it  in  him,"  Ihid.  We 
think,  with  the  judicial  committee  of  tlu' 
Privy  Council,  that  on  the  weight  uf 
authority  and  on  principle  this  is  tliu 
sounder  view  of  the  law  on  this  ])oiiit. 

1  See  Hulme  v.  Tenant,  1  Hro.  V.  C 
15  ;  Millies  v.  Rusk,  2  Ves.  Jr.  48S ; 
Murray  v.  Bailee,  3  Myl.  k  K.,  •JOii ; 
Owens  V.  Dickenson,  i'r.  &  Ph.  4S; 
Huike  V.  Tuite,  lit  Ir.  E.  &  L.  li.  -107; 
Johnson  v.  Gallagher,  3  De  G.  ¥.  &  .'. 
494,  per  Turner,  L.  J. 

'^  It  was  so  held  by  Vice-Chaiieellor 
Malins  in  Pike  t,'.  Fitzgibbon,  14  Cli.  Uiv. 
837,  and  by  him  again  in  Pike  v.  Kitzu'ib- 
bon  (2d  Ca.se),  17  Ch.  Div.  4.'')4.  H^' 
there  held  that  judgment  on  the  covenmit 
of  a  married  woman  entitled  to  separate 
estate  binds  the  se])arate  estate  which  she 
has  at  the  time  when  the  judgment  is 
given,  including,  if  her  husband  is  then 
dead,  estate  given  to  her  separate  use  with 
a  restraint  against  anticipation.  The  com- 
plete fallacy  of  the  Vice-Chancellor  is  con- 


PART   III.] 


MARRIED   WOMEN. 


205 


A  iiiairicd  woman  is  bound  by  estoppel  in  a  deed  ot'  her  inter- 
est in  her  separate  property,  duly  executed  and  aci<nowlcdged  by 
her  ill  tlie  same  manner  as  it'  she  were  a  feme  nuleA 


111    St'li- 


111  I'X- 

II  till' 

tlllV 

1  tllll't 

niimii, 

vests, 

fur  all 

t.i  :l 

w,. 

(if  the 

lit    (if 

IS    tliu 

lit. 

V.  (', 

•i|i:t  ; 

.  4S; 
■107; 
&  .1. 


t  lincij  ill  Mii'l  li;isc(l  on  liis  ciitiri!  iiiisai>iin'- 
liciisi'iii  111  tlui  iiiw  wiii'i-i'  lii^  .sliiU'8  ;  "  It  is 
iii'ilictiy  itiiinatfiiiil  wlictlifr  ii  iniinicil 
wiiiiMii  has  .sfpai'iiti'  cstiitt!  at  tin;  tiliiu 
(i'.  c,  at  till'  time  sill!  iiiiiilu  tliu  I'li^'ajjo- 
iii'-iit]  <iv  iii't."  And,  iif^iiiii  :  ".Mr. 
iliassi'  very  l"ililiy  iisscitcil  that  tlific  is 
11(1  case  ilccidinj;  tliat  inoiicrty  whii:li  a 
iiiariii'l  wiiiiiiin  had  not  at  tliu  dato  of  the 
(■(ii:ti.ii't,  (ir  i)f  tilt'  debt  hciiif,' (.'oiitiiu'tcd, 
was  iialili'  to  |iay  tlit'  dubt.  1  t'lin  only  say 
that  if  siuh  is  tlie  casu  I  am  very  .suiiy 
tliat  the  cimits  liavi'  so  cntirijly  failed  in 
i'X|ins>iiij,'  what  tlii'y  meant."  Jhid.  14 
Ch.  hiv.  at  ]).  842.  In  the  second  case 
tin;  Vii('-Chanci'lli)r  adhered  to  his  deeis- 
iuii  :  "  1  liiild  it  to  be  i  leal'  that  all  sepa- 
rate iHiiiii  riy  which  she  had  at  the  tinio 
(if  tile  jud;,'iiient,  whether  slid  had  it  at 
the  time  (if  the  debt  bein^'  contracted  or 
luit,  is  liable  to  fiillil  her  ;^eneral  i'nf;af,'e- 
iiieiit^."  II)iiL  17  C'h.  l)iv.  •1.55.  On  a|i- 
]ieal,  liiitli  decisions  were  reversed.  Jhid. 
17  (li.  Uiv.  1.'.4,  iol.  Brett,  I..  .T.,  jmt 
the  liter  tersely,  thus:  "I  diller  from 
sn  iimeh  of  the  jud),'ment  of  the  Vice- 
t'liaiii  illor  as  says  that  the  jiropositiou 
api'lles  til  se|iarate  jirojierty  coniinj,'  into 
existeiieu  after  the  time  of  the  enr;age- 
iiieiit,  (Veil  thou;<n  it  be  not  siiliject  to  a 
nstiaiiit  on  alienation.  It  seems  to  mo 
that  the  after-ae((iiired  [irojicrty  is  a  differ- 
ent estate  from  the  other,  and  no  deoi.sion 
of  cdurts  (if  equity  has  ever  held  that  the 
doctrine  which  is  ai)iilicable  to  the  oiii! 
Instate  shdiild  be  ajiiilicd  to  the  other,  and 
I  shmild  decline,  unless  obli(,'ed,  to  f;o 
furl  her  ill  that  direction.  Moreover,  it 
seems  to  tne  that  even  if  one  eoiild  go 
fiiitliei,  the  terms  of  this  new  estate, 
where  there  is  no  power  of  anticipation, 
wiiiiM  take  that  estate  out  of  the  iirineiple 
apiiliealile  to  the  other,  and  that  to  hold 
tliat  siieli  an  estate  is  subject  to  these  lia- 
liiliiies  wiiiild  be,  in  fact,  to  strike  out  the 
wimls  'without  ])0wer  of  anticipation." 
Tike  V.  Kiizj^ibbon,  17  Ch.  Div.  at  p.  4t!2. 
Ami  see  h'olierts  r.  Watkins,  46  I..  .1. 
(>.  B.  :<-:2  ;  /,V  Svkcs's  Trusts,  2  .1.  &  H. 
41.",;  Kiiijf  r.  Luc'as,  23  Ch.  Div.  712; 
Stanley  r.  Stanley,  7  Ch.  Div.  .181).  See, 
alsii,  on  the  (General  ipiestion,  .\twood  v. 
'  liiehester,  3  (J.  B.  Div.  722;  -Mellenry 
!'.  Davies,  L.  K.  10  K.].  88  ;  Chubb  v. 
■Stretch,  I..  1?.  9  Eq.  .^.")5  ;  In  re  Spencer, 
30  Ch.  Div.  183  ;  Chapman  v.  Ri<;gs,  11 
Q.  B.  Div.  27  ;  In  re  Andrews,  30  Ch. 
I'iv.  ]:,u  ■  Meaf,'er  v.  Pellew,  14  Q.  B. 
piv.  !'7;i  ;  Hodges  v.  Hodges,  20  Ch.  Div. 
74!)  ;  Lancashire  &  Yorkshire  Bank  v. 
<)ee,  W.  N.  for  1875,  213. 


Moneys  ailvanced  by  a  stranger  in  pro- 
viding necessaries  for  the  support  of  a 
inaiiied  woman,  living  se[iiirate  from  her 
husband,  are  debts  binding  lier  separate 
estate  ;  and  being  debts  payable  out  of 
funds  held  ill  trii.st  for  her  separate  use, 
are  not  barred  by  the  statute  of  limita- 
tions. Hodgsiin  I'.  Williaiiisnii,  15  Ch. 
Div.  87  ;  Norton  r.  Turrill,  2  I'.  Wms. 
144.  In  Vaughaii  r.  Walker.  S  Ir.  Ch.  U. 
458,  404,  Lord  .luslice  Lilackbinnc,  dis- 
senting from  the  Lord  I'liamellor,  dill'eied 
with  the  holding  in  Norton  i'.  Turrill,  2 
P.  Wins.  144  ;  but  was  condemneil  in 
Hodgson  V.  Willianison,  15  Ch.  Div.  87, 
1)1,  as  proceeding  cm  a  fallacy. 

The  law  in  the  I'liitcd  States,  with  ref- 
erence to  the  separate  iiidperty  of  inurried 
women  before  the  jiassage  of  the  ^larried 
Woiiiun's  Acts,  is  very  iniich  to  the  same 
ellect  as  in  Kiigliiii(l.  See  Kirksey  v. 
Friend,  48  Ala.   27ii  ;  Bi  andry  v.   IS'elch, 

47  Cal.  1^3;  /.V  Kiiikead,  3  Biss.  405; 
Davis  I'.  Davis,  43  Iiid.  5til  ;  McCaleb  r. 
Crichticld,  5  Ilei.-k.  (Teiin.)  288  ;  Sienier.s 
V.  Kleeburg,  56  Mo.  I'.t6  ;  Wright  v. 
Dresser,  110  Mass.  51  ;  May  v.  Smith,  48 
Ala.  4^-3  ;  Conn.  Life  Ins.  Co.  v.  Mct.'or- 
niick,  45  Cal.  580  ;  .Ionian  r.  Peak,  38 
Te.x.  42i"  ;  Yale  v.  Dederer,  21  Barb.  286  ; 
Bell  V.  Kellar,  8  15.  Mon.  .^81  ;  Ozley  v. 
Ikclheinier,  26  Ala.  8112  ;  Collins  v.  Ru- 
dolph, 19  Ala.  616  ;  Priest  v.  Cone,  51 
Vt.  495  ;  McVey  v.  Cantiell,  7o  N.  Y. 
295  ;  Patrick  r.  Lit  tell,  36  Ohio,  7lt;  Wil- 
lard  I'.  Kastham,  15  (liav,  328  ;  l.'ogers  v. 
Ward,  8  Allen,  387  ;  White  v.  MeNett,  33 
N.  Y.  371  ;  Partridge  v.  Siockcr,  36  Vt. 
108  ;  Frary  ?;.  Bdotli,  37  Vt.  78  ;  Imlay  o. 
Huntington,  2ii  Conn.  146  ;  Meth.  Kpis. 
Church  I'.  Jacipies,  17  Johns.  548  ;  Yale 
(,'.  Dederer,  18  N.  Y.  265  ;  Carter  v. 
Howard,   39    Vt.  106;    P.ugbee  v.   Blood, 

48  Vt.  4U7  ;  Dale  v.  liobiiison,  51  Vt. 
20.  But  see  Kwiiigy.  Smith,  3  De.s.  417; 
Carter  v.  Kveleigb,  4  Des.  19;  James  v, 
Mays.int,  4  Des.  591. 

i  Jones  I'.  Frost.  L.  1!.  7  Ch.  Ap.  773 ; 
Crofts  t'.  Miihlleton,  8  De  G.  M.  k  G. 
192.  See,  further,  Wright  v.  Wright,  1 
Ves.  Sen.  409;  Wood  w.  Lanibirth,  1  Ph. 
8  ;  Dowell  v.  Dew,  1  Y.  .&  C.  C.  C.  345 ; 
Ben.sley  v.  Bunion,  2  Sim.  &  St.  519  ; 
l?ight  1-.  Bucknell,  2  B.  &  Ad.  278; 
llobbs  I'.  Norton,  1  Veni.  136  ;  Raw  v. 
Pote,  2  Vern.  239  ;  Stronge  v.  Hawkes,  4 
De  G.  M.  &  G.  186;  Legh  v.  Legh,  1 
Bos.  &  P.  447  ;  Roberts  v.  Lloyd,  2  Beav. 
376  ;  Fortcscue  v.  Barnett,  3  Myl.  &  K. 
36  ;  Stead  v.  Nelson,  2  Be.av.  245  ;  Owens 
V.  Dicken.son,  Cr.  &  Ph.  48. 


!'    ''i  •   I- 


1    UK 


■  :  i 


200 


COMMENTARIES  ON  SALES. 


[book   II. 


The  law  is  W(;ll  settled  that  when  the  wife  is  left  without  m;iin. 
teuanee  or  support  by  the  husbantl ;  has  tnuletl  as  a  fenii-  «'</(■, 
and  luis  olttaiiied  credit  as  such,  she  ou^rht  to  he  liable  for  lior 
debts.  And  the  law  is  the  same  whetiu.'rthe  husband  is  baiiislu'il 
for  his  crimes  or  has  voluntarily  abiindoned  the  wile.  It  is  l(jr 
the  benclit  of  the  femn  covert  that  she  should  be  answerable  tur 
her  debts,  and  lialile  to  an  action  in  such  a  case;;  otherwisu  slic 
could  not  obtain  credit,  and  would  have  no  menus  of  gaiuiii.:-  ;i 
livelihood.' 

A  claim  was  made  a;^ainst  the  estate  of  a  deceased  inarriid 


iiE.i-.i.  • 


>  Klica  V.  Klicmior,  1  rt'ters,  10.5. 
Tliis  iliM'triiH'  has  Imtii  liiii;^  f.stahlislii'il. 
It  iiii]n'iirs  liy  the  Yi'iir  I'xiok,  1  lli'ii.  4, 
1.  a,  that  Sir  'I'lioiims  Belknap  was  haii- 
islit'd  to  CascDiiy,  llnTi-  to  ri'iiiaiii  until  li<^ 
obtaiiictl  the  kill's  favor,  and  liis  wil'c! 
wns  iMTMiiltcil  to  sue  in  licr  own  name  as 
a  Jiiiie  sii/e.  ('(J.  I.itt.  13;5,  <i.  ISanish- 
incnt  or  alijiiration  of  the  realm  liy  the 
liushand  was  considi'ied  as  his  civil  death, 
and  in  Newsoiiie  v.  lloycr,  '-i  1'.  Wms.  37, 
it  WHS  lield  liial  thi'  lianislimeiit  of  the  hus- 
band, even  fur  a  limited  time,  operates  a 
roniuval  of  tlu!  dinaliilitii's  of  the  cover- 
ture, so  far  as  to  enuliie  the  wife  to  siio 
and  he  sued  as  a  fiim:  milr,  altli.iu;;;h  tha 
timu  of  hanishmeiit  had  e.\|iired  wlieji  tliu 
action  was  hroii^'lit.  And  wheie  the  hus- 
band resided  ahroad,  leavinrj  his  uilo  t'> 
trado  and  f,'ain  credit  as  a  fniic  av</c,  this 
has  heen  considered  as  sull'.(  i'lit  to  entitlo 
her  to  olitain  credit,  and  to  remler  lier  lia- 
ble to  lie  sued  in  her  own  name.  De- 
Gerillon  v.  l.'.W'^U;  1  15,  k  V.  3r.7.  This 
(Mse  was  followe  1  liy  the  Supreme  Court  <»f 
Massachusetts,  in  (Jicgory  v.  Paul,  15 
Mass.  .31,  where  it  was  held  that  i\  fntic 
covert,  whose  husbiind  desi'rted  her  in  a 
forei;,'!!  countrj',  and  who  had  thereafter 
maintained  hciself  as  a  sin<{le  woman, 
havin:;  lived  for  live  years  in  .Massachu- 
setts, till!  husliaiid  tieinj;  a  forcif^ner,  and 
havinj^  never  hrirn  in  the  United  States, 
was  ciiiiipetent  to  sue  ami  b((  .sued  in  her 
own  name,  and  tiiat  her  release  was  a  valid 
discharge  for  any  judi^ment  .she  might  ri;- 
cover.  In  Walford  v.  The  Duclie.ss  do 
I'ienne,  2  Ksp.  ^)i>i,  the  duke  was  a  for- 
eigner, who  left  Kngland  in  171*3,  with  an 
intention  of  returning  soon.  The  suit 
was  brought  against  the  duehes.s  in  171*7, 
and  the  (-ourt  held  that  the  husband's  ab- 
sence, thus  continued,  should  be  consid- 
ered as  a  desertion  of  the  wife,  and  ns 
sullicient  to  enable  her  to  contract  oti  her 
own  account.  But  in  Bogget  v.  Frier,  11 
East,  303,  the  wife  was  not  permitted  to 
SUA  in  her  own  name,  although  her  hus- 
band had  gone  to  sea  without  making  any 
provision  for  her  support.     But,  in  that 


case,  the  hiisbanil  was  born  within  lln' 
realm,  was  then  a  sulijcct,  hail  nut  linri 
banished,  and  had  not  abjured  the  riaiiii. 
The  Court  held  that,  umlcr  such  ciivuin. 
stani'cs,  his  abseni'c  might  be  idMsiili  icil 
temporary,  and,  therclure,  as  not  vaiyiii;' 
the  rights  of  the  husband  or  wife.  Tlii' 
wife,  too,  of  an  alien  enemy  has  Ihiu 
held  liable  to  suits,  as  the?  husliaiiil  wjs 
not  amenable  to  the  process  of  the  cmirt. 
Dcerley  V.  The  Duilie.^s  of  .Ma/aiii]-,  1 
Ld.  llaym.  147;  lSalii.llf>.  In  The  (miii- 
tess  of  I'ortlanil  v.  Prodiicrs,  'J  Verti.  I04, 
where  the  husband  of  l.ady  Sandys  «a>, 
by  act  of  parliament,  banisheil  for  life, 
the  court  sustained  the  validity  nf  liir 
will,  holding  that,  in  sucii  la.ses,  the  wiff 
might  act  in  all  things  as  a  fnnr  sn!,; 
an(l  as  if  her  husband  was  dead,  and  tliat 
the  necessities  of  the  case  rcipiired  tiiat 
sl.e  should  have  such  power.  See,  fur- 
ther, on  these  <piestions,  Dubois  r.  Hole, 
'2  Vern.  til3  ;  Spariow  /•.  ( 'arrutlins.  '2 
Bl  K.  Il!i7;  Kli/a  Wilmot's  Cas,  .Moc. 
8:.l  ;  .s.  c.  l.'oll.  1.S8  ;  Carroll  r.  lileii,,,,., 
4  Ksp.  27;  li'obinson  v.  lieynolds,  1  .\ik. 
174;  Kdw.'irds  v.  Davis,  !•!  ■lolins.  'JSiJ ; 
Cornwall  v.  llovt,  7  Conn.  420;  Tr(iii;,'litni; 
I'.  Hill,  2  llav."  40(!;  Wright  t:  Wright.  2 
De.ss.  244  ;  Lewis  1:  Lee,  3  1!  &  ('.  2'.'1  ; 
Dean  V.  liichmond,  5  I'ick.  4til  ;  Er  pirh' 
Franks,  7  Bing.  702;  Williamson  r.  haucs, 
!)  liing.  2!t4.  The  consc(|iu'nccs  of  alijiiia- 
tion  are  enumerated  in  Hawk.  I'.  C.  ii.  2, 
c.  K;  Staundef.  I'rerog.  117;  3  Inst. 
11.5.  The  eonsecjuences  of  transpintaiimi 
are  only  tho.se  enacted  by  .statute.  In 
England,  prior  to  the  pa.ssage  of  the  Mar- 
ried Woman's  Property  Protection  .\its, 
when  a  convict  returned  he  was  restored 
to  all  his  rights,  as  at  common  law  ;  the 
vinculum  iixifriiuntiii  remained  niibr.ikrii, 
and  what  the  wife  accpurcd  during  liis 
absence!  was  his  pro])erty.  l>y  i>  'ho.  4, 
c.  84,  §  20,  convicts  might  s\ie  upon  obtain- 
ing remission  of  their  sentence;  and  tiiiir 
capacity  to  acrpiire  property  was  ne- 
knowledged  by  19  <^ieo.  4,  c.  74.  See, 
further,  on  this  |)oint,  iiifnt,  on  the  cH't'ct 
of  the  Married  Woman's  I'roperty  Acts. 


r.\uT  III.] 


MARKIFD  WOMEN. 


207 


woiiiaii  for  j^i'ocerics  supplied  diiriiij?  her  life,  to  a  liousehold  in 
wiiit'li  the  Imslmiid  and  wife  and  their  children  were  livini;  to- 
irrtluT,  and  lor  wiiicli  the  huHhiind  had  j^jiven  promissory  notes, 
si^'iiiiij,'  thcui  as  triistoe  for  his  wife.  The  jj^rocer  did  not  testily 
to  any  express  contract  with  the  wife,  and  ho  admitted  that  slu^ 
Iiad  never  promised  to  jrive  him  secjirity  on  her  real  estate.  The 
fiiitrd  Slatt-s  Supreme  (,'ourt  held  that  the  ol)li<ration  to  pay  for 
till'  supplies  of  the  family  is  ordinarily  a  debt  of  the  husiiaud,  and 
that  the  promissory  notea  did  not  hind  the  wife  in  ahseneo  of  clear 
proof  of  authority  from  her  to  }j;ivo  them.  The  decision  of  the 
court  hclow,  holdini?  her  separate  estate  liable,  was  reveiscd.' 

A  nianied  woman  ^avo  up  to  l»er  husband  .€*)()(),  hi'ld  upon 
trust  I'or  her  separate  use,  upon  the  understaiulinj,'  that  the  iius- 
haiul  wouhl  settle  her  furniture  upon  her  for  her  separate  use. 
The  husband  assiji'ncd  the  furniture  to  a  trustee  to  hold  for  the 
list'  and  benelit  of  his  wife,  and  the  property  remained  \n  'he  joint 
possession  of  husband  and  wife.  The  assiirnment  was  net,  leLris- 
tered  under  the  Bills  of  Sales  Acts,  and  the  husband  afterwards 
liccaine  liankrupt.  It  was  held  that,  independently  of  *hc  Hills  of 
Sales  Acts,  the  plaintilT  would  have  been  entitled  to  i.ave  the  fur 
uilure  secured  for  her  separate  usc;^  but  the  asNi,u;nment  ficiin<; 
as  a  bill  of  sal l-,  came  within  the  act,  and,  not  beinj^  'voi>,t(>red 
under  \hr>  act,  the  furniture  remained  in  the  oi'der  and  disposition 
of  the  bankrupt,  and  could  not  lie  protected  ajrainst  the  assignee.^ 
It  was  pointed  out  that,  prior  to  the  JJills  of  Sales  Acts,  if  a  trans- 
fer of  t^oods  were  made,  and  the  u'oods  were  retained  bv  the  as- 
si<ruoi',  if  his  holding  them  was  consistent  with  the  instriunent 
under  which  they  were  held,  they  would  not  be  deemed  to  be  in 
the  "  order  and  disposition  "  of  the  holder;  but  that  now,  under 
the  Hills  of  Sales  Acts,  there  must,  in  every  change  of  ownership 
of  cliatt(ds  in  the  possession  of  the  assignor,  be  a  registration,  if 
lie  remains  in  possession,  to  j)revcnt  Ids  obtaining  credit  on  the 
faith  of  the  possession  being  in  himself,  when,  in  point  of  fact,  it 
is  only  apparent.  If  he  is  once  known  to  be  the  owner  of  the  prop- 
erty, then  a  person  is  entitled  to  treat  him  as  still  the  owner,  un- 
less there  be  some  deed  registered  which  shows  that  the  ownership 
has  changed.  If,  therefore,  he  sells  the  property,  the  )»urchaser 
must  lake  jiosscssion  as  soon  as  circmnstances  permit;  and  if, 
instead  of  taking  possession,  he  allows  the  seller  to  remain  in  pos- 
session, then  the  property  passes  to  the  assignees.* 


1  Dnthc  f.  Knowles,  114  U.  S.  430. 

'  See  Simmons  v.  K<l\vards,  16  M.  &  W. 
838  ;  .laniiiiii  v.  Woolloton,  3  T.  R.  618  ; 
Clark  V.  Ciownsliaw,  3  B.  &  Ad.  804, 


»  Ashton  V.  Blackshaw,  L.  R.  9  Eq. 
510. 

*  And  see  Fowler  v.  Foster,  5  Jur. 
M.  8.  99. 


Mi 


I. 


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■  i  ■ 

: 

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It  ■• 

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;  : 


m 


208 


COMMENTARIES  ON  SALES. 


[book  II. 


TliG  right  of  a  husband  to  settle  a  portion  of  his  property  upon 
his  wife,  and  thus  provide  against  the  vicissitudes  of  fortune, 
when  this  can  be  done  without  impairing  existing  claims  of  credit- 
ors, is  indisputable.  He  may  make  such  a  settlement,  wlieio  ho 
does  not  thereby  impair  the  claims  of  existing  creditors,  and  tlie 
settlement  is  not  intended  as  a  cover  to  future  schemes  of  fraud, 
either  by  the  i)urchase  of  property  and  taking  a  deed  thereof  in 
her  name,  or  by  its  transfer  to  trustees  for  her  bcnelit.' 

Uut  a  desire  by  a  husband  to  secure  for  his  wife  provision 
against  the  necessities  of  tlie  future,  will  not  sustain  such  a  con- 
veyance ;  though  the  payment  in  this  way  of  a  debt  duo  Ity  tlie 
husband  to  his  wife,  or  an  investment  ijy  liim  of  funds  realized 
from  a  sale  of  her  individual  pro])orty,  will  do  so.  WIumo  tlio 
transaction  as  to  payment  to  a  third  person  for  a  like  debt  would 
have  been  unassailable,  the  result  is  not  changed  because  the  wife 
is  the  person  to  whom  the  debt  is  due,  and  not  another.  While 
transactions  by  way  of  purchase  or  security  l)etween  husband  and 
wife  should  be  carefully  scrutinized  ;  when  they  are  shown  to  have 
been  upon  full  consideration  from  one  to  the  other,  or,  when  vol- 
untary, that  the  husband  was  at  the  time  free  from  debt  and  pos- 
sessed of  ample  means,  the  same  protection  will  be  afforded  them 
as  to  like  transactions  between  third  jjcrsons.^ 

It  was  held  by  the  United  States  Suprcnic  Court  in  De  Lauc  v. 
Moore  :  ^  1.  That  an  antenuptial  contract  is  good  in  South  Caiolina, 
as  between  the  i)arties,  from  the  time  of  its  execution,  without 
being  recorded  ;  and  as  to  subsequent  creditors  and  purchasers,  it 
operates  as  notice  to  them  from  tbe  time  of  its  execution,  if  re- 
corded within  three  months  from  that  time ;  but  if  not  recorded 
until  after  the  expiration  of  three  months  from  the  date  of  its  exe- 
cution, it  wotdd,  by  construction,  as  to  such  creditors  and  purchas- 
ers, operate  only  from  the  time  it  was  recorded,  unless  as  to  sueh 
creditors  and  purchasers  with  notice,  to  which  latter  class  it  would 
operate  from  the  period  of  its  execution.  2.  That  an  autciuip- 
tial  contract,  duly  made  and  recorded  in  the  State  where  the  par- 
ties reside,  and  where  the  i)roperty  is,  continues  to  bind  (hat 
property  as  against  creditors  and  i»urchasers  on  its  sul)se([iient 
removal  to  another  State. 


1  Jones  V.  Clifton.  101  V.  S  22-).  ^i?  ; 
Sexton  c.  Wlieuton,  S  Wlieat.  -J-.".);  Mooic 
I'.  l\ii,'c,  ill  U.  S.  U7. 

'^  Benn  v.  I'attcis.Mi,  122  V.  S.  406. 
And  see  Llovil  :•.  Fulton,  Dl  l^  S.  47'.'  ; 
Sniifli  V.  Vo!i-,'i's,  1)2  U.  S.  183  ;  Sexton 
V.  Wlieaton,  ti  Wheat.  220  ;  Mattinf,'ly  v. 
Xye,  8  Wall.  370  ;  Trust  Co.  v.  Sedtj'viek, 
97  ir.  S.  304  ;  Clark  v.  Killian,  103  U.  S. 
766  ;    Laiio   v.   Kingslmry,  11   Mo.   402  ; 


Payne  v.  Stanton,  j'O  Mo.  158;  Bm-i^'ss  c. 
Mel.eall,  85  .Mo.  (578  ;  C.ould  e.  Hill,  1"^ 
Ala.  84;  lleek  v.  Clipiien;;i'r,  ;"»  I'l'iin.  .'iS.' ; 
Tyson's  Ap.,  10  I'eun.  220;  Ilaitlrv  >: 
H'urle,  5  Vcs.  f)40  ;  Tyler  v.  Lake  2  IJuss. 
&  Myl.  183;  Neinieewicz  v.  Oalin.  3  I'lir. 
614;  11  Wend.  312;  .lohns  v.  \lr:n<i,n\. 
11  Md.  46")  ;  P.iyne  r.  Trovniaii.  ilS  Mo. 
339  ;  Wileox  v.  todJ,  64  Mo.  388. 
»  14  How.  253. 


PART  HI-] 


MARRIED   WOMEN. 


209 


5.  Married  Women's  Property  Acts. 


liUllC  ('. 

Jarulina, 
witliout 
asors,  it 
u,  il'  I'o- 
cctndoi.1 
itscxe- 
)uiH'h;\s- 
to  siu'h 
it  wtmld 
ntciuip- 
10  pur- 
lul  llwt 
sotiuout 


llill.y 
ri'UM.  •>S.' ; 
iLu'tli'V  !'. 
[(',  '2  I'.iiss. 

Ji,  »  riiiS^"' 

lli'dvilon, 

ii.  r,i  Mo. 

B8. 


Modern  statutes  in  England  and  in  this  country  have  very  ma- 
terially altered  the  status  of  married  women  with  respect  to  their 
sepiirate  property. 

In  England,  by  20  and  21  Vic.,c.  85,  s.  2'),  it  is  provided  that  a 
married  woman,  while  judicially  separated  from  her  iiusband,  is 
to  1)0  considered  nfetne  sole  with  respect  to  property  of  every 
dosL'ri|ition  which  she  may  acquire,  or  which  may  come  to  or  de- 
volve uiiou  her  ;  and  such  property  may  be  disposed  of  by  her  in 
all  re.s|n'ets  as  nfeme  sole,  and  on  he?  decease  the  same  shall,  in 
Ciiso  filio  shall  die  intestate,  go  as  the  same  would  have  gone  if 
lior  luisliand  had  been  then  dead.  IJy  the  21st  section,  a  wife 
(lesci'tod  Iiy  her  lHisl)and  may  obtain  an  order  for  the  protection 
of  her  property,  under  which  she  has  the  right  to  contnd  her  sub- 
sequently ac(piired  property  and  earnings  as  a.  feme  solv ;  and,  by  the 
2tjtli  section,  when  judicially  separated  from  her  husband  she  is 
to  be  considered  as  a  feme  sole  for  the  ))urposes  of  contract,  and 
wroDirs,  and  injuries,  and  suing  and  being  sued  in  any  civil  i)ro- 
ocediniis.  ]>y  21  and  22  Vic,  sees.  0-10,  further  provisions  arc 
made  tor  the  j)rotection  of  her  property  where  she  has  obtained 
!ui  order  for  prof  ction  or  a  decree  for  judicial  separation.  By  the 
Married  Women's  Property  Act,  1870  (amended  by  the  Married 
Women's  Property  Act,  187-1),  such  protection  is  extended  to  all 
married  women.  By  section  1,  it  is  provided  that  the  wages  and 
earnings  of  any  married  woman,  acquired  and  gained  by  her  after 
the  passing  of  the  act,  in  any  em|doyment,  occupation,  or  trade  in 
which  she  is  engaged,  or  which  she  carries  on  separately  from  her 
liiis'.KUid,  and  also  any  money  or  property  so  accpiired  by  her 
through  the  exercise  of  any  literary,  artistic,  or  scientilic  skill, 
and  all  investments  of  such  wages,  earnings,  money,  or  property, 
shall  lie  deonie(l  and  taken  to  be  property  held  and  s(>tfled  to  her 
sejiuiate  use,  independent  of  any  husband  to  wh(»m  she  may  ho 
married,  and  her  receipts  alone  shall  l)e  a  good  discharge  for  such 
wages,  earnings,  money,  and  property.  Sections  ;>-7  make  ]tro- 
visions  ndative  to  her  ]>roperty  before  or  aC(iuirod  aflcu"  marriage, 
and  section  11  gives  her  the  right  of  action  in  her  own  name  for 
the  recovery,  jirotection,  and  security  of  her  separate  pi'operty. 
The  act  also  provides  that  she  may  effect  insurance  on  her  own  or 
her  liusl)and's  life  for  her  own  itcnefit,  and  a  married  woman  hav- 
ing separate  property  is  made  liable  for  the  support  of  her  chil- 
dren, the  same  as  a  widow,  ai\d  for  the  support  of  her  indigent 
husband  under  The  Poor  Law  Amendment  Act,  1808. 

Tiiesc  acts   arc    consolidated    and   amended   by   the   Married 

VOL,  I.  14 


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210 


COMMENTARIES  ON   SALES. 


[book  II. 


Women's  Property  Act,  1882,^  in,  which  the  powers  of  a  married 
woman  are  still  further  enlarged.  By  the  first  section  she  is  de- 
clared capable  of  acquiring,  holding,  and  disposing,  by  will  or  other- 
wise, of  any  real  or  personal  property  as  her  separate  property,  as 
if  she  were  a  feme  sole.  She  may  enter  into  and  I'cnder  herself 
liable  in  respect  of  and  to  the  extent  of  her  separate  property,  on 
any  contract,  and  of  suing  and  being  sued,  either  in  contract  or 
in  tort,  or  otherwise,  in  all  respects  as  if  she  were  a,  feme  sole; 
and  she  is  made  liable  to  the  bankruptcy  laws  if  she  carry  on 
trade  separately  from  her  husband,  in  the  same  way  as  if  she 
were  a  feme  sole.  By  subsequent  sections  her  separate  property, 
real  and  personal,  owned  by  her  at  her  marriage,  or  acquired  by 
her  subsequently,  vests  in  herself  ;  and  the  act  gives  her,  in 
effect,  generally,  all  the  rights  and  powers  of  a  feme  sole,  with 
respect  to  her  property,  real  and  personal,  whether  vested  or  con- 
tingent, and  whether  in  possession,  reversion,  or  remainder,  he- 
longing  to  her  at  the  time  of  her  marriage,  or  which  shall  be 
acquired  by  or  devolve  upon  her  after  marriage,  including  any 
wages,  earnings,  money,  and  property  gained  or  acquired  by  her 
in  any  em[)l()yment,  trade,  or  occupation  in  which  she  is  engaged. 
or  which  she  carries  on  separately  from  her  husband,  or  by  the 
exercise  of  any  literary,  artistic,  or  scientific  skill.  Tlic  act  other- 
wise makes  the  fullest  provision  for  the  protection  of  her  prop- 
erty, and  her  rights  therein  and  growing  thereout. 

in  this  country,  in  the  State  of  Louisiana,  in  1855,^  an  act  was 
passed  enabling  married  women  to  contract  debts  and  bind  their 
property ;  the  first  section  providing  that  from  and  after  the  pas- 
sage of  the  act,  all  married  women  in  the  State  over  the  a<rc  of 
twenty-one  years  miglit,  by  and  with  the  authorization  of  their  Ims- 
bands,  borrow  money  or  contract  debts  for  their  separate  benefit 
and  advantage,  and,  to  secure  the  same,  grant  mortgages  or  other 
securities  affecting  their  separate  estate,  paraphernal  or  dotal. 
This  power,  however,  could  only  be  exercised  on  the  certificate 
of  the  judge  of  the  district  or  parish,  that  it,  in  ciTect,  was  for  her 
own  benefit,  and  not  for  the  benefit  of  lier  husband  or  for  their 
joint  benefit.^  Many  years  prior  to  the  passage  of  that  act  an  act 
was  passed  in  Louisiana  providing  for  a  community  of  "  acquets 
and  gains  "  between  husband  and  wife ;  a  right  of  survivorship  in 
the  share  of  the  other  in  the  community  property  being  givoii  to 
the  survivor  in  certain  cases;*  the  provisions  of  law  regulating 
the  community  of  acquets  and  gains  being  in  1852  extended  to 

'  46  &  46  Vic.  c.  75.  particuliercs,  ou  celles  oppaitenaiit  a  1* 

'  Act  No.  200,  p.  254,  Acts  of  Louis-  comninnaiite." 
iana.  ♦  See  Ants  of  Louisiaua  for  1844,  ^i'• 

•  "  Ou  pom  I'livniitagp  lie  ses  proprietus  152,  p.  99, 


'ART  III.] 


MARRIED   WOMEN. 


211 


married  persons  rosiding  out  of  the  State  acquiring  property  in 
the  State. 

And  long  before  tlie  passage  of  the  English  acts,  provision  was 
made  in  dil't'crcnt  States  of  this  country  for  the  protection  of  the 
|ii'0[ierty  of  married  women.  Thus  in  1844,*  Maine  enacted  that 
married  women  might  become  seized  or  possessed  of  any  property, 
real  or  personal,  by  direct  bequest,  demise,  gift,  purchase,  or  dis- 
tribution, in  her  own  name,  and  as  of  her  own  property  ;  and  that 
wlien  any  woman  possessed  of  property,  real  or  personal,  should 
marry,  such  property  should  continue  to  her,  notwithstanding  her 
coverture,  and  she  should  have,  hold,  and  possess  the  same,  as 
her  separate  })roperty,  exempt  from  any  liability  for  the  debts  or 
contracts  of  the  husband.  And  by  chapter  148  of  Acts  of  18G2, 
it  was  iurther  enacted  that  when  a  married  woman  engages  in 
any  trade  or  business  on  her  own  account,  and  purchases  goods, 
wares,  and  merchandise,  or  other  property  connected  therewith, 
any  contract  which  she  makes  in  carrying  on  such  trade  or  busi- 
ness shall  be  valid,  and  may  be  enforced  in  the  same  manner  as 
if  she  were  sole,  and  her  separate  property  shall  be  holden  by 
attachment  or  levy  on  execution  in  any  suit  brought  to  enforce 
such  contract.  But  the  husband  and  his  property  shall  be  ex- 
empt from  liability  on  any  such  contract  unless  he  was  a  party 
thcieto.^  By  subsequent  statutes,  her  personal  earnings  are  vested 
in  herself ;  she  is  made  liable  for  her  torts  as  a  feme  sole ;  she  may 
sue  and  defend  in  her  own  name,  cither  in  contract  or  tort,  for  the 
preservation  and  protection  of  her  property  and  personal  rights ; 
licr  property  descends  to  her  heirs  if  she  die  intestate;'^  and  she 
may  be  authorized,  if  her  husband  abandons  her  and  leaves  the 
State,  without  making  sufficient  provision  for  her  maintenance,  or 
if  ho  is  confined  in  the  State  prison  in  execution  of  a  sentence,  to 
make  eonti-acts,  and  to  sue  and  be  sued  thereon,  as  if  unmarried. 

In  Massachusetts,  as  far  back  as  1787,  it  was  enacted  that 
where  a  married  man  absents  himself  from  the  Commonwealth, 
abandoning  his  wife  and  not  making  sufficient  provision  for  her 
maintenance,  she  could  be  empowered  during  the  absence  of  her 
husband  to  make  and  execute  any  contract,  under  seal  or  other- 
wise ;  to  sell  and  convey  her  estate,  real  and  personal ;  and  to  sue 
and  defend  suits  in  law  or  e(iuity,  as  if  she  wore  aole  and  unmar- 
ried.* By  subsequent  statutes  in  this  State,  the  widest  powers 
are  given  to  a  married  woman  with  respect  to  her  property  and 


»  Acts  of  Maine  for  1844,  c.  117,  p.  104. 

'^  Xot  now  in  force.  See  Uev.  St.  of 
Maine  for  1883,  c.  61,  p.  623. 

'  She  does  not  seem  under  this  chapter, 
or  under  the  Maine  chapter  of  Wills,  to  be 


expressly  empowered  to  make  a  will.  See 
I!ev.  Sts.  of  Maine  for  1883,  c.  61,  ]i.  523; 
c.  74,  p.  608. 

*  1  Law.s  of  Massachusetts,  p.  405. 


;  t  ; 


I 


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5|: 


1 1 


!  9i  -Si  . 


212 


COMMENTARIES  ON   SALES. 


[book  II. 


rights.  Thus  it  is  provided  that  the  real  and  personal  property 
of  a  woman  shall,  i?pon  her  marriage,  remain  her  separate  jjiop- 
crty,  and  a  married  woman  may  receive,  receipt  for,  hold,  nianajfo, 
and  dispose  of  property,  real  and  personal,  as  if  she  were  solo,  ex 
cept  that  she  shall  not,  without  the  written  consent  of  her  bus- 
hand,  destroy  or  impair  his  tenancy  hy  the  curtesy  in  her  real 
estate ;  she  may,  except  with  her  husband,  make  contracts,  oral 
and  written,  sealed  and  unsealed,  in  the  same  manner  as  if  she 
were  sole.  Ilcr  labor  is  presumed  to  be  on  her  own  account ;  she 
may  make  a  will,  may  sue  and  be  sued,  and,  while  not  binding  on 
her  liusband,  she  and  her  separate  property  are  liable  on  such 
contracts  as  if  she  were  a  feme  sole} 

And  now  statutes  for  the  protection  of  married  women's  jirop- 
crty,  more  or  less  similar  to  these,  are  in  force  in  the  District  of 
Columbia  and  in  all  the  States  and  Territories  of  the  Union,  as 
well  as  in  the  Canadian  Provinces,  where  the  principles  of  the 
common  law  dominate.^ 

Very  many  questions  have  arisen  in  England  and  in  this  coun- 
try under  these  acts. 

In  Asuworth  v.  Outram,^  a  question  arose  as  to  the  effect  of  So 
&,  3-i  Vic.  c.  03,  under  the  following  facts.  A  woman  entered  the 
service  of  a  man  as  housekeeper  in  a  house  which  was  in  his 
occupation,  but  was  not  his  ordinary  place  of  residence.  He 
shortly  afterwards  engaged  to  marry  her.  In  1861  she  com- 
menced the  business  of  preserving  fruit,  which  was  begun  upon  a 
small  scale,  but  gradually  became  a  large  wholesale  business.  It 
was  carried  on  by  her  in  her  own  name  ;  she  kept  a  separate;  icmk- 
ing  account ;  and  he  admitted  that  it  was  her  own  business,  and 
was  managed  solely  by  her,  though  he  sometimes  assisteil.  In 
1874  lie  married  her.  After  the  marriage  the  business  was  car- 
ried on  by  her  as  before,  in  her  maiden  name,  but  in  consciiiuiice 
of  the  bank  manager  requiring  it  to  be  done,  she  transacted  all  her 
banking  business  through  her  husband's  account,  drawing  cheques 
upon  it,  which  she  signed  in  his  name.  Her  husband  gave  as- 
sistance as  ho  had  done  before,  but  did  not  interfere  with  tlio 
management,  and  when  people  called  on  matters  relating  to  llic 
business,  he  referred  to  her,  and,  if  she  was  out,  told  them  that 


»  Rev.  Stats,  of  Mass.  for  1882,  c.  H7, 
1>.  818. 

*  There  seems  to  be  no  ant  of  the  kind 
in  foree  in  the  I'rovinee  of  Quebec.  .See 
art.  .5809,  He  v.  St.  of  Quebec  for  1888. 
In  Ontario  acts  very  siinihir  to  those  en- 
acted in  Kn^Iand  are  in  force.  See  Rev. 
Sts.  of  Ontario  for  1887,  chaps.  132,  134, 
pp.  1250,  12(54.     In  Nova  Scotia,  by  the 


"  Married  Woman's  Property  .Act,  T^-^l," 
llev.  Sts.  of  Nova  Scotia,  ."ith  scries  c.  '.). 
I)p.  661-684,  a  married  woman's  ipnijii'tv 
is  vested  in  her,  and  .she  is  ;i;iven  as  lull 
powers  and  i)rotection  with  rcfeniir.'  f'l 
her  property  and  contiacls  as  in  any  t;'** 
whicli  lia.s  come  under  our  notice. 
»  5  Ch.  Div.  923. 


PART  III.] 


MARRIED   WOMEN. 


213 


they  must  see  her.  She  paid  the  wages,  ordered  and  paid  for 
fruit  aud  sugar,  and  made  all  the  sales.  It  was  claimed  that, 
untlcr  the  Act  of  1870,  although  the  earnings  after  the  marriage 
might  belong  to  her,  the  elleet  of  the  marriage  was  to  vest  the 
biisiuoss  and  property,  as  at  connnon  law,  entirely  in  the  hus- 
baud.  The  court  (Malins,  V.  C.)  hold  that  oven  independent  of 
the  Aet  of  1870,  in  equity  she  would  be  held  to  have  been  carry- 
ing on  the  trade  on  her  own  separate  account,  apart  from  and 
without  the  interference  of  her  husband,  and  that  there  was 
onoudi  in  the  case  to  show  the  ac(iuicscence  of  the  husband  in 
allowing  her  to  carry  on  the  business  for  her  own  benefit,  and 
making  the  property  her  separate  property ; '  the  rule  in  equity 
being  that  if  a  husband  permit  a  wife  after  marriage  to  carry  on 
a  business  for  her  own  separate  use  and  benefit,  that  becomes  her 
se])arate  jiroperty,  which,  as  between  him  and  her,  is  binding,  and 
makes  the  property  her  own  separate  estate,  and  that  this  was 
confirmed  by  the  Married  Women's  Property  Act,  1870.  On  appeal 
the  Cliaiicery  Division  aflirmed  the  judgment,  and  held  that,  the 
act  being  passed  with  the  knowledge  and  in  view  of  the  then 
existing  state  of  the  law  as  administered  by  courts  of  equity,  the 
protection  under  the  act  was  carried  not  only  to  the  "  wages  and 
caiuings,"  but  to  those  things  which  were  necessary  to  make  the 
wages  and  earnings  which  were  to  be  protected. ^ 


'  Sliiniiiiif;  V.  Style,  3  P.  Wms.  334  ; 
WiiltiT  )'.  Ilodf,'!',  2  Sw.  92;  Mews  v. 
iliws,  ITi  Biuv.  529  :  MiK'Xeillie  v.  Acton, 
4  Dm;.  M.  .to.  744,  7.");'). 

-  Miiliiis,  V.  C,  ill  his  judjiniont  ]iiit 
till'  iiKiltcr  vciy  I'lcaily  and  conclusively  : 
"  Wliiit  Wiis  the  object  of  the  iict  !  It  was 
foiiiiil  tli.it  there  WHS  a  great  iiunilier  of 
CiiM's  (il  r;iiiuli:ir  occiineiicu  where  a  woman 
is  cnnyiiii,'  on  a  trade.  A  familiar  in- 
stuii'e  isthat<if  a  dressmaker  or  a  niilli- 
iier,  (iiwlieiv  she  is  carrying  on  an  artistic 
oi'cii)iatiiin,  such  as  a  singer,  or  an  actress, 
or  a  sciiliitor,  or  any  of  those  things  in 
w'.iicli  Wdiiii  11  may  he  skilled,  ami  may 
earn  givat  mums  of  money.  It  was  thought 
a  vciy  liiiid  thin;-  •'  •♦  wliatever  a  married 
wniiiim  eanii'd  b}  a  niisiness  should  imme- 
diately luToiiie,  according  to  the  settled 
Iirimijile  of  common  law,  the  atisolute 
liiu|iirty  of  the  husband,  li,  terms  I  am 
I'lmii.l  to  say  it  seems  that  this  act  is  ad- 
ilrt'ssod  to  the  gains  of  married  women, 
iiiHJ  luit  to  the  case  of  a  woman  who  car- 
ries oil  business  at  the  time  of  her  mar- 
niiijc.  This  lady  did  carry  on  business, 
iind  made  imifits  in  the  occiiiialion  or 
ti'i.je  in  whii'h  she  was  engaged.  He 
•i^'ivid  that  slie  should  do  so.  Tlien  what 
dues  that  give  her?     Docs  it  give   her 


merely  tlie  profits  of  the  trade  without 
the  means  of  making  those  inolits  ?  He- 
cause  if  the  husband  is  to  deprive  her  of 
all  the  stock-in-trade,  and  iill  the  caj)ital, 
and  she  has  not  a  farthing  wherewith  to 
buy  sugar  or  fruit  and  what  she  wants, 
she  cannot  make  the  money.  Take  the 
very  common  case  of  a  milliner.  A  man 
marries  a  milliner  or  a  dressmaker  in  a 
large  way  of  business.  Slu'  is  in  jiossrs- 
sion  of  i,  very  large  stock  of  silks,  satins, 
ribbons,  laces,  and  all  those  things  used 
in  her  trade.  Tiic  husband  acnuiesces  iu 
her  continuing  to  carry  lui  that  business. 
Is  lie  to  have  all  this  slock-in-trade  and 
.,iic  to  have  the  prolils  /  Or  it  he  has  ac- 
(|uiesced  in  her  carrying  on  the  trade,  does 
it  not  show  that  she  is  to  have  the  means 
of  carrying  on  the  trade,  without  whicii 
she  cannot  carry  it  on  ?  .Su]ipose  a  man 
marries  a  prima  donmi,  undei  this  act  all 
lier  earnings  are  her  seiiarate  propi'rty. 
Do  the  jewellery,  dresses,  and  various 
thinp  iiecessi'.ry  for  the  occupation  belong 
to  the  husband  >  If  they  do,  then,  how- 
ever much  she  may  desire  to  sing,  anil 
however  much  the  iiulilic  may  desire  her 
to  sing,  if  the  husliaiid  chooses  he  may 
have  every  jewel  and  dress  sold.  The 
act  must  have  u  raliuuul  interpretation. 


^^Hip 


i  .     ! 


m 


i    !" 


i 


I 


In 


214 


COMMENTAIilES  ON  SALES. 


[book  II. 


A  very  similar  doctrine  was  established  by  the  United  States 
District  Court,  in  In  re  Kinkead,^  on  both  points,  to  that  which 
was  held  in  Ashworth  v.  Outram.'^  The  court  held  in  this  case, 
as  in  that,  that  a  married  woman,  in  equity,  may  hold  her  sepa- 
rate property  ;  can  control  and  dispose  of  it ;  incur  liabilities  on 
the  credit  of  it ;  and  that  it  can  be  subjected  to  the  payment  of 
debts  contracted  in  or  about  the  management,  improvement,  or 
purchase  of  such  property,  independent  of  the  statute.-^  And, 
under  the  Illinois  Married  Women's  Act  of  1861,  the  wife  bceaine 
absolute  mistress  of  her  own  earnings,  and  could  bring  snit  in 
lier  name  to  collect  them.  Slie  might  superintend  her  separate 
property,  make  binding  contracts  in  relation  thereto,  and  devote 
her  time  to  such  occupation  as  was  most  congenial  to  her  tastes, 
and  control  her  earnings,'* 

It  has  also  been  held,  under  the  English  Act  of  1870,  that  see- 


Therefore  when  it  says  slio  is  to  liave  the 
fruits  of  her  oecupatioii  or  tniile,  or  the  re- 
sult of  her  artistic  skill,  it  seems  to  iiu'  that 
if  she  has  the  consent  of  her  Inishand  that 
she  shall  do  these  thinj^'s  she  must  also 
have  the  means  of  doiiit;  so.  if,  therefore, 
he  consents  to  her  continuing  to  act  as 
a  painter,  she  must  have  her  easel  and 
canvas  and  various  tliinf,'s  she  uses  ;  if 
she  be  a  sculptor,  she  must  have  marbles 
and  chisels  and  those  things  ;  if  she  be 
an  actress  or  singer,  she  must  have  the 
dresses  and  jewels  and  those  things,  with- 
out which  she  cannot  appear  in  public ; 
and  if  sho  be,  as  in  the  present  case,  a 
preserve-maker,  my  opinion  is  she  must 
nave  the  pots  and  pans  and  stock  of  sugar 
and  of  fruit,  and  all  the  appliances  which 
shall  enable  her  to  make  money  by  that 
occupation.  Consenting  that  she  shall  do 
the  thing  means  that  she  shall  have  the 
means  wliereby  it  is  to  be  done  ;  and  to 
hold  that  all  the  stock-in-trade  and  every 
debt  owing  to  her,  and  everything  she  has 
in  the  world  except  tlie  skill,  is  to  belong 
to  the  husband,  and  that  she  shall  have  the 
skill  and  power  of  carrying  it  on  without 
any  means  of  doing  it,  would  in  my  opin- 
ion be  an  utter  al)surdity,  and  a  narrow 
construction  of  the  act  of  ])arliament. 
Therefore  my  construction  is  that  when  a 
man  consents  to  his  wife  carrying  on  the 
particular  operation,  and  thereby  gaining 
money,  that  is  a  consent  to  her  having 
those  things  whereby  those  moneys  are 
made.  In  this  case,  without  the  stock-in- 
trade,  without  the  debts  owing  to  her,  and 
a  little  capital,  she  could  not  have  caiTied 
on  that  occupation.  I  am  of  opinion  he 
consented  to  that,  and  consenting  to  that 
moans  that  he  consented  to  her  having 
the  business  and  everything  belonging  to 
the   business.      That   is  the  conclusion, 


therefore,  on  the  act  of  juirliaiiieiit,  to 
which  I  arrive."  Ashworth  r.  Outnui], 
5  Ch.  Div.  ^3:5  ct  scq.  See  Level!  v.  N,.w. 
ton,  4  C.  r.  Div.  7,  following  Ashworth  v, 
Outrani. 

1  3  Hiss.  40.5. 

2  5  Ch.  Div.  923. 

3  Carpenter  v.  Mitchell,  50  III.  470; 
Jones  V.  Crosthwait,  17  Iowa,  VSi ;  Vale 
V.  Dederer,  18  N.  Y.  265,  22  N.  Y.  4,^0; 
Howe  V.  Wildes,  34  Me.  566;  GuinMitcr 
V.  Mitchell,  54  111.  127;  Miller  v.  iliown, 
47  Mo.  504;  Kimm  v.  Wcippeit,  lii  M^, 
532;  Darby  v.  Callaghan,  16  N.  V.  lil ; 
Knapp  V.  Smith,  27  N.  Y.  277;  Ivetelmm 
V.  Walsworth,  5  Wis,  95. 

*  The  court  concluded  further:  "She 
may,  therefore,  it  seems  to  me,  eiig;ij,'('  in 
trade  either  with  or  without  her  lMl^ll;lIK^s 
consent, — certaiidy  with  his  consent,— 
using  her  own  property  in  the  enteipiisp, 
and  may  bind  herself  by  all  eontniels  slu' 
makes  in  her  business.  Slu>  may  own  the 
whole  of  a  stock  of  merchandise,  or  the 
machinery  ami  furnishings  of  a  nianutk- 
tory,  and  liave  the  entile  prolits  iiml  he 
liable  for  the  losses."  It  was  al^o  held 
further  that  she  could  enter  intu  ii  co- 
partnership with  another,  even  thnuj.'h 
that  other  was  her  husband,  ami  as  sivh 
partner  be  liable  to  be  adjudged  a  liaiik- 
rupt.  In  re  Kinkead,  3  Biss.  ■U^:<.  410. 
Under  the  English  Act  of  1882,  seriieii  1, 
sub-section  5,  a  married  woman  eaii'liig 
on  a  separate  business  is  expressly  uiiiii' 
liable,  with  respect  to  her  sepiirate  |imp- 
erty,  to  the  bankrui)tey  laws;  but,  uml'r 
the  Act  of  1870,  it  was  held  that  a  mar- 
ried woman  —  at  least  one  who  liiil  n" 
sejiarate  property  —  could  not  be  adjudi- 
cated a  bankrupt.  Ex  parte  HoUaml,  5 
Oil.  Ap.  307. 


PART  III.] 


M&BRIED  WOMEN. 


215 


tioii  11  enables  a  married  woman  to  maintain  an  action  in  her 
own  name  to  recover  damages  for  dishonoring  cheques  drr.wn  by 
her  in  the  course  of  a  trade  which  she  carries  on  separately  from 
her  husband,  or  for  not  duly  presenting  or  not  giving  due  notice 
of  dishonor  of  a  bill  of  exchange  acquired  by  her  in  such  trade, 
and  intrusted  to  bankers  by  her  for  presentment ;  it  being  a  rem- 
edy '•  for  tlie  protection  and  security  "  of  her  separate  pro[)erty.^ 

Under  the  English,  act  of  1882,  it  has  been  held  that  the  con- 
tract wliicli  is  to  bind  separate  property  of  a  married  woman  must 
be  ontored  into  at  a  time  when  the  married  woman  has  existing 
separate  ])roperty.  If  she  has  such  property,  her  contract  will 
bind  it.  If  «he  afterwards  commits  a  breach  of  the  contract,  and 
proceedings  are  taken  against  her  for  the  breach  of  contract,  any 
separate  i)roperty  which  she  has  acquired  since  the  date  of  the 
contract,  and  which  she  has  at  the  time  when  judgment  is  recov- 
ered against  her,  will  be  liable  for  the  breach  of  the  contract. 
But  tlie  act  does  not  enable  her,  by  means  of  a  contract  entered 
into  at  a  time  when  she  has  no  existing  separate  property,  to  bind 
any  possible  contingent  separate  property .^  And  it  is  also  held 
that  the  act  is  not  retrospective ;  and,  therefore,  in  an  action  on  a 
contract  made  by  a  married  woman  before  the  passing  of  the  act, 
judaincnt  cannot  be  ordered  in  such  terms  as  to  be  available 
against  separate  property  to  which  the  defendant  became  entitled 
after  tlic  date  of  the  contract.^ 

Tlic  court,  in  Huntington  v.  Saunders,*  adhered  to  the  princi- 
ples laid  down  in  Phipps  v.  Sedgwick,"  relative  to  the  obligations 
and  liabilities  of  a  married  woman  with  respect  to  property  re- 
ceived i»y  her  from  her  husband,  that  while  State  statutes  have  i*ec- 
ognizcd  certain  rights  of  the  wife  to  deal  with  and  contract  in 
reference  to  her  separate  property,  they  fall  far  short  of  estab- 
lishing the  jirinciple  that  out  of  that  separate  projjcrty  she  can  be 


1  Siiiniiicrs  r.  Pity  Bank,  L.  R.  9  C.  P. 
580.  As  to  tlic  lights  of  ii  married  woman 
whuliiisdlitaiiii'il  a  "  protection"  order  iin- 
(liT  tlic  21  St  section  of  the  Act,  see  Hamsden 
V.  Hiviulcy,  ID  Q.  n.  147;  Nicholson  v. 
Dniiy  Biiililiims  {'".state  Co.,  7  Ch.  Div. 
48;  //(  re  Coward  &  Adam's  I'urcliase, 
L  R.  -JO  F,i|.  17!».  As  to  further  ([ues- 
tioiis  aiisiin;  uiiiler  this  Act,  see  Mattlicws 
V.  Wliitil,.,  i:{  cli.  Div.  811;  Thompson  v. 
IViitictt,  i;  Cli.  Div.  73!>;  Holt  17,  Everall, 
2  Cli.  Div.  2iiti:  Hancocks  v.  Lablache, 
3C.  r.  Div.  1117;  Dc  Oreuchy  v.  Will.s, 
4  C.  r.  Div.  ;5(!J  ;  The  Queen  o.  Carnatic 
Uailwiiy  Co.,  I,.  |{.  8  Q.  B.  299;  iJcU  v. 
Stocikcr,  10  ().  B.  Div.  129  ;  King  i;. 
Voss,  13  Cli.  Div.  504. 

^  /"  re  Sliiikspcar,  .'?0  CIi.  Div.  169. 

8  Tunihull  V.  Forman,  15  Q.  B.  Div. 


234.  See  also  Weldon  v.  Winslow,  13 
Q.  15.  Div.  784  ;  Conolan  v.  I.evland,  27 
Ch.  Div.  632  ;  Bmsill  v.  Tanner,"  13  Q.  B. 
Div.  6!  1.  Sec  as  to  the  law  before  this 
act  came  into  force,  Tike  (•.  Fitz^'ilihon, 
17  Ch.  Div.  454;  Kinij  v.  Lucas,  23  Ch. 
Div.  712.  Under  45  &  46  Vic.  c.  75,  §  3, 
when  a  married  wonii.n  seeks  to  prove, 
under  her  husband's  bankruptcy,  for 
money  lent  by  her  to  him,  she  must 
show  that  the  money  was  not  lent  for 
the  purposes  of  his  trade  or  business.  If 
she  fails  to  do  .so,  she  cannot  prove  or 
vote  until  all  the  other  creditors  have 
been  paid  in  full.  In  re  Gencse,  16  Q.  B. 
Div,  700.  See  Ej-  parte  Taylor,  12  Ch, 
Div.  366,  under  an  analogous  Act. 

<  120  IJ.  S.  78. 

»  95  U.  S.  3;  stated  ante,  p.  151  n. 


]1 


I'M 
•  ill. 


W\ 


» 


y 


> 


5?'i    ■    i 


21G 


COMMENTARIES  ON   SALES. 


[book  II. 


made  liable  for  money  or  property  received  at  her  husband's  hands 
which,  in  equity,  ought  to  have  gone  to  pay  his  debts.  Equity  has 
been  ready,  where  such  property  remains  in  her  hands,  to  rwstorc 
it  to  its  proper  use,  but  not  to  hold  iier  separate  estate  for  what 
she  lias  received  and  i)robably  spent  at  liis  dictation.  Such  a 
proposition  would  be  a  very  unjust  one  to  the  wife  still  under  the 
dominion,  control,  and  personal  influence  of  the  husband.  In 
receiving  favors  at  his  hands,  which  she  supjiosed  to  be  the  ofTer- 
ings  of  affection,  or  a  proper  j)rovision  for  her  comfort,  she  would 
be  subjecting  that  which  was  her  own,  or  which  might  afterwards 
come  to  her  from  other  sources,  to  unknown  and  unsuspected 
charges,  of  the  amount  and  nature  of  which  she  would  be  whollv 
ignorant.  It  answers  the  demands  of  justice  in  such  cases  if  tlic 
creditor,  finding  the  property  in  her  hands,  or  in  the  hands  of  one 
holding  it  with  notice,  appropriates  it  to  pay  his  debt.  IJiit  if  it 
is  beyond  his  reach,' the  wife  should  no  more  be  held  lial)le  for  it 
than  if  the  husband  himself  had  spent  it  in  support  of  his  family, 
or  even  of  his  own  extravagance. 

Purchases  of  either  real  or  personal  property,  made  by  the 
wife  of  an  insolvent  debtor  during  coverture,  are  justly  regai'ded 
with  suspicion,  unless  it  clearly  appears  that  the  consideration 
was  paid  out  of  her  separate  estate.  Such  is  the  community  of 
interest  between  husband  and  wife ;  such  purchases  arc  so  often 
made  a  cover  for  a  debtor's  property ;  are  so  frequently  resorted 
to  for  the  purpose  of  withdrawing  his  property  from  the  reach  of 
his  creditors  and  preserving  it  for  his  own  use,  and  they  hold 
forth  such  temptation'^  for  fraud,  that  they  require  close  scrutiny. 
In  a  contest  between  t  re  creditors  of  the  husband  and  the  wife, 
there  is  a  presumption  against  her  which  she  must  overcome  by 
athrmativc  proof.  Such  has  always  been  the  rule  of  the  conunon 
law ;  and  the  rule  continues,  though  statutes  have  modified  the 
doctrine  that  gave  to  tlic  husband  absolutely  the  personal  property 
of  the  wife  in  possession,  and  the  right  to  reduce  into  possession 
and  ownership  all  her  choses  in  action} 

In  Mississippi,  by  their  code  of  1871,^  married  women  may  rent 
their  lands  or  make  any  contract  for  the  use  of  the  same,  and  may 
loan  their  money  and  take  securities  for  its  payment,  and  cni|iloy 


1  I-citz  V.  mu-XwW,  94  U.  S.  580  ; 
Gamber  v.  Giiiubcr,  18  Pa.  St.  306;  Keeny 
V.  (Jood,  21  lit.  349;  Walker  v.  Kearney, 
36  lb.  410;  Parviii  v.  Caiiewell,  9  Wrifjht, 
89  ;  liradlbid's  Apiieal,  5  Casev,  513 ; 
Aurand  v.  ShatTer,  7  Wri-jlit,  363.  So 
property  purchased  by  a  married  woman 
on  credit,  or  with  lier  earnint^s,  has  been 
held  to  lie  subject  to  the  h^vy  of  an  execu- 
tion against  her  husband.     Robinson  v. 


Wallace,  3  Wright,  129;  Switzor  r.  Vnl.ii- 
tine,  4  Duer,  96 ;  Glann  i;.  Youii!,'lovr  il 
Harb.  480 ;  Woodbeuk  v.  Havens,  4J  /'-. 
66  ;  Rider  i'.  Hulse,  24  N.  Y.  37J  :  Con- 
nors V.  Connors,  4  Wis.  131  ;  Kllintt  i: 
Hentley,  17  lb.  610;  Edson  v.  Haydcii.  iO 
//;.  682;  Duncan  v.  Rosellc,  15  lowu.  ,^(il; 
Cramer  v.  Uedlord,  17  N.  J.  Eij.  307. 
,  2  Section  1780. 


JOOK  II. 

8  hands 
uitv  has 

restore 
or  what 

Such  a 
id('r  the 
Lud.    In 
lie  offer- 
iO  would 
ter  wards 
uspoctod 
c  wholly 
cs  it'  the 
:1a  of  one 
But  if  it 
)lc  for  it 
s  family, 

c  by  the 
rcirarded 
side  ration 
naunity  of 
so  often 
resorted 
reach  nf 
lioy  hold 
scrutiny, 
the  wife, 
come  by 
common 
iiied  the 
property 
ossessiou 

linay  rent 
1  and  may 
euii)loy 

lur  r.  \aW- 
liin!j;lovc,  ^7 
I.M1S,  4-:  /'■. 
\-i7i:  Cun- 
KUintt  r. 
iHayacii.  '20 
lou-.i,  'lOl; 
',t^.  307. 


PART  III-] 


MARRIED  WOMEN. 


217 


it  ill  trade  or  business,  and  the  express  enactment  is  that  all  con- 
tracts made  by  the  husband  and  wife,  or  by  either  o  them,  to  ob- 
tain supplies  for  the  jdantation  of  the  wife,  may  bo  enforced  and 
satisfaction  secured  out  of  her  separate  estate.  Provision  is  also 
uiade  that  when  a  married  woman  engages  in  trade  or  business  as 
a  feme  a^h',  she  shall  be  bound  by  her  contracts  made  in  the 
couise  of  such  trade  or  business  in  the  same  manner  as  if  she  was 
nniuarried.i 

Wo  examine  more  particularly  some  of  the  late  decisions  in  this 
country  under  the  Married  Women's  Acts. 

1.  Her  Status. 

As  those  acts  have  to  a  greater  or  less  extent  affected  the  status 
of  husband  and  wife  in  connection  with  the  rights  to  property  and 
the  power  to  contract,  we  examine,  first,  some  of  the  cases  on  these 
questions.  The  Supremo  Court  of  the  United  States,  in  an  ajipcal 
from  the  Supreme  Court  of  the  District  of  Columbia,  the  judg- 
ment in  wliicli  was  reversed,  in  a  case  where  a  wife  had  a  separate 
estate  of  which  the  husband  was  trustee,  and  the  plaintiff  claimed 
for  groceries  supplied  to  the  household  in  which  the  husband  and 
wife  and  their  children  were  living  together,  and  upon  promissory 
notes  given  by  the  husband,  describing  himself  as  trustee  for  the 
wife,  in  j)aynient  for  the  groceries  so  supplied,  — ■  held  that,  as  the 
oldijiatiou  to  pay  for  the  su|)plies  of  the  family  is,  ordinarily,  a 
deijt  of  the  husband,  where  the  wife  had  never  promised  to  pay 
for  the  goods  or  authorized  her  husband  to  promise  that  she  would 
pay  for  them,  nor  gave  her  husband  authority  to  give  the  promis- 
sory notes  on  her  behalf,  the  contract  bound  her  husband  person- 
ally anil  not  her  estate.^  So,  in  McCoy  v.  Ilyatt,'^  it  is  laid  down 
that  under  the  common  law  the  acquisitions  of  the  wife  accrued 
to  the  benefit  of  the  husband,  and  became  liable  for  his  debts.  As 
her  legal  existence  by  fiction  of  law  was  swallowed  up  in  that  of 
her  husliand,  her  possession  was  his. 

In  the  progress  of  law  and  justice,  the  courts  of  e(iiiity  inter- 
fered, under  certain  circumstances,  as  against  the  husband  and  his 
privies,  for  the  protection  of  the  wife,  securing  to  her  the  enjoy- 
ment of  i)ropcrty  as  a  feme  sole.  It  was  long  held  that  a  tnistce 
for  her  was  essential  as  the  depositary  of  the  legal  title.     Courts 


^  See,  as  to  a  married  woman's  con- 
tracts ill  Mississip)ii,  Bank  of  America  v. 
Bank,  Inl  I'.  8.  '240;  Clopton  v.  Matheiiy, 
4S  Miss.  '2M\  29.");  t'ook  v.  Ligon,  54  lb. 
368,  37:i;  Herman  i>.  Perkins,  52  /?;.  813; 
ftnilihs  v.  Collins,  54  Ih.  485,  489;  liob- 
iiLsoii  V.  Stadukcr,  59  lb.  3. 


2  Dodge  V.  Knowlcs,  114  U.  S.  430. 
This  is  a  principle  in  etpiity  as  to  the 
wife's  separate  estate,  indepeudeut  of 
statnte. 

3  80  Mo.  130,  134. 


5 


!i 


'f  ■  i 


>l 


f 


>'■ 


i;] 


218 


COMMENTARIES  ON  S.VLES. 


[book  II. 


;(•:  . 


3li!liJ 


of  equity,  however,  soon  held  that  rather  than  injustice  should  b 
done,  they  would  constitute  the  husband,  where  he  held  the  pos- 
session, a  trustee  for  the  wife.*  And  like  every  other  principle  of 
juris[)rudcnce,  though  not  changeable,  yet  possessing  so  uiucli 
flexibility  as  to  adapt  itself  to  the  growing  necessities  and  varying 
circumstances  of  civilization,  and  of  social  and  domestic  lii'o,  it 
has  so  extended  that  courts  of  law,  as  well  as  of  equity,  recoiriiizo 
and  adjudicate  upon  personalty  as  the  absolute  property  of  the 
wife  under  certain  conditions. 

Both  as  to  the  real  and  personal  property,  no  particular  or  set 
phraseology  is  essential,  in  the  instrument  vesting  the  property, 
to  create  a  separate  estate  in  a  married  woman.  It  is  only  n(>ces- 
sary  to  this  end  to  emi)loy  such  terms  of  expression  as  indicate 
clearly  and  unequivocally  the  intent  to  vest  in  her  the  title  and 
estate  indei)endcnt  of  the  husband.  And  in  respect  to  personal 
property,  the  title  to  which  may  pass  without  deed  or  other  instru- 
ment of  writing,  as  by  word  and  delivery,  the  separate  title  thereto 
of  a  feme  covert  can  bo  established  by  acts,  conduct,  and  words,  as 
any  other  fact,  in  pais."^  And,  as  was  stated  in  Ilolthaus  v,  lloin- 
bostle,*  where  the  proof  is  clear  and  convincing  that  the  j)roperty 
is  so  placed  in  her,  the  fact  of  the  husband's  indebtedness  cannot 
affect  her  proprietorship  and  right;  the  object  often,  in  giving  or 
transferring  property  to  the  wife  of  an  insolvent  husband,  beinj; 
to  save  her  from  his  improvidence  and  worthlessncss. 

The  existence  of  this  separate  property  interest  in  her  may  be 
drawn  and  established  from  the  fact  of  her  long  and  uninter- 
rupted control  over  it  with  the  acquiescence  of  her  husband  in  her 
dominion  over  and  management  of  it.^ 

In  Richardson  v.  Merrill,*  and  in  Caldwell  v,  Renfrew,''  it  is 
held  that  courts  of  law,  as  well  as  of  equity,  will  protect  property 
coming  to  the  wife  by  gift  or  purchase,  and  though  no  apt  words 
in  the  donation  or  purchase  may  be  used  to  create,  in  the  linst 
instance,  a  separate  estate,  yet  where  her  husband  has  by  his  ac- 
quiescence conceded  her  right  of  dominion  over  it,  troatinji-  it  as 
her  property,  it  may  nevertheless  be  regarded  and  ju-otected  as 
her  separate  estate  ;  and  this  too  against  creditors  of  the  hus- 
band, where  the  property  has  not  been  so  mingled  with  the  hus- 
band's, or  so  used  by  him,  as  to  create  a  credit  in  his  favor  on  the 
faith  of  his  assumed  ownership.  Redfield,  C.  J.,  in  Richardson 
V.  Merrill,'^  says :  "  All  who  are  familiar  with  the  subject  are 
aware  that  creditors  and  purchasers  are  always  bound  to  respect 

1  Holtliaus  V.  Ilonibostle,  60  Mo.  442.  <  32  Vt.  27. 

2  Ihid.  p.  443.  6  33  Vt.  213, 

3  Welch  V.  Welch,  63  Mo.  67;  Cough-  «  32  Vt.  35. 
lin  V.  Ryan,  43  Mo.  99. 


r.v 


IIT  III.] 


MARRIED   WOMEN. 


219 


counter-equities  in  third  parties  which  come  to  their  knowledge 
before  tliey  have  actually  made  advances,  or  otherwise  changed 
their  position,  in  faith  of  the  absolute  property  being  in  the  per- 
son ostensibly  holding  it." 

So,  in  Welch  v.  Welch,^  where  it  was  conceded  that  the  wife 
never  liad  any  separate  estate  conveyed  to  her  l^y  any  separate 
ostate  trust-deed,  the  court  said,  touching  this,  that  if  the  gift 
fiuni  a  husband  to  his  wife  will  be  upheld,  it  is  not  i)erceived 
why  the  same  result  will  not  follow  when  the  gift  emanates  from 
a  tliird  person,  when  the  husband  assents  to  it,  and  treats  the 
properly  as  belonging  exclusively  to  the  wife. 

Having  regard  to  these  principles,  it  was  held,  in  McCoy  v. 
Hyatt-  (reversing  the  judgment  of  the  court  below),  with  refer- 
ence to  a  mowing-machine  taken  in  execution  against  a  husband, 
wliich  liis  wife  alleged  to  be  her  property,  that  the  Act  of  Missouri 
knt)\vn  as  the  Married  "Women's  Act,  passed  March  25,  1875,^^  in 
no  wise  interfered  with  the  right  of  a  married  woman  to  acquire, 
or  witli  tlie  manner  of  her  acquiring,  a  separate  estate  in  personalty 
Ijy  trit't  or  purchase,  as  it  existed  prior  to  its  adoption  ;  the  act 
being  designed  to  enlarge  its  operation,  to  simplify  the  proof  of 
its  existence,  and  to  afford  protection,  especially  against  the  effect 
of  the  luisband's  reducing  the  property  to  possession,  by  provid- 
ing that  no  such  reduction  should  bo  effectual  which  was  not 
evidenced  by  writing  signed  by  her.  And,  accordingly,  it  was 
further  held,  that  if,  as  a  matter  of  fact,  the  wife  received  the 
mowing-inacliine  by  gift  or  purchase,  or  both,  from  an  outside 
person,  and  she,  or  some  one  for  her,  held  the  possession  thereof, 
claiming  it  as  hers,  exclusively,  for  several  years  prior  to  its  hav- 
ing been  taken  in  execution,  these  would  be  facts  from  wliich  a 
court  or  jury  might  conclude  that  she  owned  the  property,  and, 
if  fiee  from  fraud  on  her  part,  she  could  hold  it  against  her  hus- 
band's creditors.* 

It  was  held,  in  accordance  with  this,  in  the  same  State,  that 
where  a  married  woman  brought  into  Missouri  from  a  foreign 
country  money  that  belonged  to  her,  which  by  agreement  between 
herself  and  husband,  both  before  and  after  she  came  to  Missouri, 
was  to  be  invested  as  her  individual  property,  free  from  the  con- 
trol of  her  husband,  then  such  fund,  and  any  property  in  which 
it  was  invested,  continued  to  be  her  separate  property,  so  long  as 
it  was  so  held,  managed,  and  used  by  her,  and  during  such  time 
was  not  subject  to  seizure  or  sale  under  execution  as  the  property 


•  ('.3  Mo.  59. 

-  81)  Mo.  130. 

a  1-iiws  1875,  p.  61 ;  R.  S.  1879,  §  3296. 

*  And  see  Uammons  v,  Keufrow,  84 


Mo.  332;  The  State  v.  The  Cliathain  Nat. 
Bank,  80  Mo.  626  ;  Kidwell  v.  Kiikpat- 
riuk,  70  Mo.  214;  Baiigert  v.  Baugert,  13 
Mo.  App.  144,  153. 


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COMMENTARIES  ON  SALES. 


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of  the  husband,  or  for  the  payment  of  his  debts.*  And  in  Tiic 
State  V.  The  Chatham  Nat.  Hank,^  it  was  held,  that  chattels  su 
brought  as  her  separate  pruperty  she  would  eontinuc  to  possess  as 
such,  after  she  came  to  this  country,  irrespective  of  the  consent  ot 
her  husband,  and  b((  protected  against  the  acts  and  doings  (jf  her 
husband,  which  iuight  be  in  derogation  of  her  rights  and  estate  so 
ac(}uired  to  her  separate  use.  IJut  if  sucii  chattels  had  not  liecu 
impressed  with  a  trust  of  her  separate  use,  exclusive  of  her  iuis- 
band,  then  whether  they  become  so  impressed  after  her  arrival  in 
this  country  would  depend  upon  the  consent  of  her  husband.  And 
this  independent  of  the  Married  Women's  Acts.  In  the  same 
State,  luuler  their  Act  vi  187;'),  it  was  held  that  in  a  contest  be- 
tween a  wife  and  her  husband's  creditors,  mere  evidence  that  slie 
purchased  the  property  during  coverture  is  not  sulHcient  to  give 
her  a  title.  It  must  satisfactorily  appear  that  the  |)roperty  was 
paid  for  with  lier  own  separate  funds,  and,  in  the  absence  of  such 
evidence,  the  presnm|)tion  is  a  violent  one  that  the  husband  fur- 
nished the  means  of  ])ayment.  While  the  statute  enlarges  the 
rights  and  throws  additional  safeguards  around  the  rights  of  mar- 
ried women  in  respect  of  certain  personal  property,  the  same  proof 
as  before  the  statute  is  essential  to  establish  the  fact  of  the  pur- 
chase having  been  made  with  her  separate  means.'' 

The  presumption  of  law  is  that  ))roperty  acquired  •  a  marrieil 
woman  during  coverture  was  paid  for  with  the  mean.s  of  her  hus- 
band.* The  burden  of  proof,  therefore,  rests  on  a  married  woman 
to  show  by  evidence  to  the  satisfaction  of  the  jury,  that  she  is  in 
fact  the  sole  and  separate  owner  of  property  for  which  she  lirini's 
an  action.''  And  wliile  the  general  rule  as  to  the  presiun|ition 
from  possession  is,  that  the  possession  of  personal  projjeity  is 
prima  facie  evidence  of  its  ownership,  this  rule  has  no  just,  ap- 
plication where  the  question  of  ownership  arises  between  hiishaiul 
and  wife,  because  the  possession  of  their  personal  property  is  ne- 
cessarily in  a  large  measure  a  joint  possession.  The  general  rule 
is  held  to  be  that  whether  the  possession  be  physically  in  tlic  hus- 
band or  the  wife,  the  title  is  presumptively  in  the  husband.'' 

In  Burns  v.  Bangert,*'  it  was  held,  that  the  Missouri  Act  of  187.3" 
has  not  changed  this  rule ;  that  if  a  wife  were  carrying  on  l)iisi- 
ness  in  her  own  name  as  a  feme  sole  trader,  her  name  on  n  siirn 
above  her  place  of  business,  her  money  deposited  in  bank  in  lior 


I  TIic  Stato  V.  Smit,  20  Mo,  App.  50. 
a  80  Mo.  62(5. 

*  Mcl'Yiiaii  V,  Kinney,  22  Mo.  App. 
554. 

♦  Sloan  V.  Torrey,  78  Mo.  625.  See 
Leitz  V.  Mitchell,  94  U.  S.  580,  supra ; 
"Weil  V.  Simmons,  66  Mo.  620,  Gamber  v. 


OaniLer,  18  Pa.  St.  306  ;  Keenv  r.  r.ond, 
21  Ta.  St.  349;  Walker  v.  l!eaiii>'V,  M  Pa. 
St.  410. 

^  Heinelreich  t;.  Carlos,  24  .Mo.  Af]'. 
264. 

»  Burns  v.  Rangert,  16  Mo.  App.  22. 

">  Key.  Stats.  §  S296. 


I'ART  HI.] 


MARIUED   WOMKN. 


221 


(iv,n  name,  and  in  her  own  name  checked  out  by  lior,  —  such  cir- 
cuinstaucos  would  rebut  the  j)rt'8umption.  Jlut  the  mere  fact  that 
liiisl)aiiil  and  wife  are  living  together  on  a  farm  and  accumulating 
moiioy  liy  tlie  joint  earnings  of  themselves,  of  the  minor  children 
of  tiie  wife,  and  of  hired  men,  and  that  the  moneys  so  accumu- 
hkd  arc  kept  at  home  by  the  wife,  are  not  sutlicient  tc  rebut  this 
|iresiiiu|ttion.' 

And  in  Texas,  where  a  wife  claimed  personal  property  as  her 
own  separate  projjerty,  in  distinction  from  its  being  community 
piDperty,  which  was  taken  in  execution  against  her  husltand,  the 
court  lield  tiiat,  the  jjresumption  being  that  all  property  ac(iuired 
by  citiii'r  the  liusband  or  tlio  wife  during  marriage,  by  onerous 
title,  is  cniuuumity  estate,  the  burden  of  j)roving  that  any  portion 
(if  it  thus  ac(piired  is  the  separate  estate  of  the  wife  rests  upon 
tlio  party  asserting  that  fact.'-^ 

Wli(  re  the  property  has  been  paid  for  in  money,  it  must  be 
made  reasonably  clear  that  tliis  money  was  derived  by  the  wife  in 
such  manner  as  to  constitute  it  her  own  separate  funds.  The 
wife  may  become  a  merchant ;  but  she  must  conduct  the  l)usincss 
with  goods  which  arc  her  separate  pro[)erty,  and  must  not  invest 
tile  comnumity  estate,  or  the  credit  of  her  husband,  in  the  pur- 
ciiase  of  the  goods,  if  she  wishes  them  to  be  exempt  from  her 
iiusbaiul's  debts.  For  this  reason  she  cannot  purcliase  on  credit, 
Imt  must  confine  he  'self  to  buying  for  cash  only,  and  be  ready  to 
sliow  that  the  money  so  used  is  her  separate  means.  If  the 
profits  made  upon  sales  of  the  goods  are  mingled  with  her  sepa- 
rate lujuey  in  the  purchase,  —  such  ])rofits  becoming  the  connnu- 
nity  estate  of  herself  and  husband,  —  she  must  be  prepared  to  show 
how  nuich  of  her  own  money  entered  into  the  purchase.  The 
liurdon  of  proving  this  is  on  her,  and  not  upon  the  creditor  who 
seizes  the  goods  for  her  husband's  debts.  So  where,  in  Texas,  a 
married  woman  in  carrying  on  business  mingled  all  her  j)ur- 
cliases  together ;  buying  goods  from  time  to  time,  presumably 
with  tlio  i)roceeds  of  such  as  were  sold,  as  there  was  no  pi-oof  to 
the  contrary,  and  as  she  in  all  rcs))Octs  carried  on  business  as 
any  other  merchant  who  buys  for  cash  and  credit,  and  invests  the 
l>roceeds  of  the  sale  of  his  goods  in  the  replenishment  of  his 
stoclc;  as  it  is  establis'icd  law  in  Texas,  under  their  statute,  (bat 
tlie  profits  of  the  wife's  separate  estate  are  community  property, 

'  As  to  rasps  lipfore  the  passage  of  tlie  Cox  v.  Miller,  .54  Tex.  26  ;  Ezell  f.  Dod- 

Aet,  sec  WiHiilford  v.  Stephens,  51  Mo.  son,  60  Tex.  332;  Braden  v.  Gose,  57  Tex. 

^♦3,  417;  Kidwell  v.  Kirkpntrick,  70  Mo.  41;  Wallace  y.  Fiiiberf,',  46  Tex.  35;  Oieeu 

214,  ovcniiliiiff  a  dictum  to  the  contrary  v.  Ferguson,  62  Tex.  52i);  Gilliard  v.  Chess- 

iiiTennison  v.  Tennison,  46  Mo.  77.  ney,  13  Tex.  337. 

^  Epperson  v.  Jones,  65  Tex.  425.    See 


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222 


COMMENTARIES  ON  SALES. 


[book  II. 


if  the  profits  made  upon  the  sales  of  the  goods  are  mingled  with 
the  wife's  separate  money  in  the  purchase,  it  was  held  that  she 
must  be  prepared  to  show  how  much  of  her  separate  means  she 
used  in  buying  the  goods;  the  burden  of  proving  this  bciiijron' 
her,  and  not  upon  the  creditor  seizing  the  goods  for  the  husl)aiid's 
debts.i 

But  in  Wisconsin,  under  their  statute,'''  it  has  been  hold,  that 
even  where  the  wife  claims  title  to  property  seized  on  cxocutiou 
against  her  husband  by  virtue  of  a  conveyance  from  him  to  her. 
as  it  is  the  established  law  in  that  State,  that  a  married  woman 
having  a  separate  estate  may  deal  with  her  husband  respecting 
the  same  ;  loan  him  money  ;  take  a  transfer  of  property  from 
him  in  payment  thereof,  and  buy  property  of  him,  provided  tlic 
transaction  was  fair  and  honest  and  not  in  fraud  of  creditors  ;5 
the  burden  of  proof  is  upon  her  only  to  show  that  she  purchased 
the  property  for  a  valuable  and  ade(|uatc  consideration  puid  out 
of  her  separate  estate,  or  by  some  other  person  for  her.  That 
being  shown,  the  burden  of  proving  such  conveyance  to  have  been 
made  in  fraud  of  her  husband's  creditors  is  upon  the  party  attack- 
ing the  conveyance.* 

In  Massachusetts  and  some  other  States,  contracts  bctwceji 
husband  and  wife  are  prohibited.^ 

In  Pennsylvania,  their  Act  of  1848  provides  that  property  of 
whatever  nature  or  kind  which  shall  accrue  to  a  mari-ied  woman 
during  coverture,  shall  be  owned  and  enjoyed  by  her  as  her  own 
separate  property,  and  shall  not  be  subject  to  levy  and  execution 
for  the  debts  and  liabilities  of  her  husbarid.  It  has  been  lield  that 
it  was  her  property  only  that  the  legislature  intended  to  protect 
under  this  act ;  her  earnings,  her  efforts,  and  her  credit  beitii:  her 
husband's,  since  the  Act  of  1848,  as  before.  What  she  may  be 
said  to  acquire,  as  the  result  of  her  skill  and  industry,  or  on  her 
merely  personal  credit,  accrues  to  the  husband,  and  as  to  credit- 
ors is  to  be  taken  as  his.^    A  married  woman  there  must  liave  a 


'  Epperson  v.  Jones,  65  Tax.  425;  s.  c. 
nom.  Joufti  i\  Kppi-ison,  tjy  Ti'x.  586.  See 
Cleveland  v.  Cole,  (55  Ti'X.  i02;  Mraden  v. 
Gose,  57  Tux.  41;  Green  v.  Kergnscn,  62 
Tex.  5-29. 

2  Laws  of  1872,  ch.  155:  R.  S,  §§  2343, 
2345. 

8  Beanl  v.  Dedolph,  29  Wis.  136 ; 
Hoxie  V.  Price,  31  Wis.  82;  Breslaner  v, 
Geilfuss,  65  Wis.  387  ;  before  the  stntnte 
of  1872,  the  powers  possessed  by  married 
women  being  greatlj'  enlarged  by  that  en- 
actment. Krouskop  V.  Shoutz,  51  Wis. 
215,  216;  Houghton  v.  Milbnrn,  54  M'is. 
654 ;  Carney  v.  Gleissner,  62  Wis.  497. 


*  Evans  i-.  Rupee,  57  Wis.  623;  liri/k- 
ley  V.  Walker,  68  Wis.  56:?. 

5  See  Mass.  I'uh.  Stilt.  1S82,  ■li.  U:, 
§§  2.  3,  7,  and  11;  and  see  F.onl  i-.  I'arki-r, 
3  .Mien,  127;  Edwards  v.  Stevens,  n  Allen, 
315;  Smith  I'.  Gorman,  41  Me.  i<-:>.  -M.- 
Keen  v.  Frost,  46  Me.  239 ;  Dw/.ly  f. 
Dwellv,  46  Me.  377. 

«  Haybold  V.  Kaybold,  8  Harris,  311. 
Goods  i)urchased  by  a  marricil  woiiiiin  nn 
her  own  credit  are  not  her  separate  prop 
erty.  Robin.son  v.  Wallace,  3  Wiii^lit, 
133.  Her  credit  is  nothing  in  the  eves  of 
the  law.  When  she  does  eontraet,  tlio  In* 
esteems  lier  the  agent  of  her  husband. 


PART  III.] 


MARRIED  WOMEN. 


223 


separate  estate  to  protect  her  purchase  upon  credit,  —  an  estate 
available,  and  proi)ortionate  to  the  credit  it  supports.  The  pur- 
chase must  in  fact  be  made,  not  upon  her  credit,  but  upon  the 
credit  of  her  scpai  ite  estate  ;  upon  her  ability  to  pay  out  of  her 
own  funds. ^ 

But  the  later  Pennsylvania  Act  of  1872  provides  that  the  sopa- 
rnto  earnings  of  any  married  woman,  howsoever  realised,  Rhall 
u..cruc  to  and  inure  to  her  separate  benefit  and  use,  md  be  under 
her  exclusive  control,  as  if  she  were  a  fetne  sole,  and  not  be  liable  to 
any  claim  of  the  husband  or  his  creditors ;  and  that  "  in  any  suit 
at  law,  or  in  equity,  in  which  the  ownership  of  such  property  shall 
be  in  dispute,  the  person  claiming  such  property  under  this  act 
sliall  be  compelled,  in  the  first  instance,  to  sho»v  title  and  owner- 
ship in  the  same."  It  was  held,  that,  under  this  act,  it  was  not 
the  intention  of  the  legislature  to  dispense  with  V/.e  presumption 
which  ordinarily  and  of  necessity  arises  in  favor  of  creditors,  in 
transactions  between  husband  and  wife,  affecting  the  ownership 
of  property  in  the  wife's  name.  Hence,  where  a  business  belong- 
ing to  tlie  husband  was  transferred  to  his  wife,  the  business  there- 
after being  carried  on  by  the  husband,  but  as  "  agent "  for  his 
wife,  it  was  held  that  property  purchased  with  the  earnings  of  tlic 
business  was  the  property  of  the  husband,  and  was  liable  to  be 
taken  under  an  execution  against  him  ;  the  earnings  of  the  busi- 
ness being  those  of  the  husband  and  not  of  the  wife,  the  business 
having  l)een  really  his.'''  And  in  lilum  v.  Moss,^  where  a  husband 
purported  to  carry  on  business  as  "  the  agent "  of  his  wife,  buy- 
ing goods  as  her  agent,  giving  notes  therefor  signed  by  her,  and 
paying  the  notes  out  of  the  proceeds  of  the  business,  it  was  held 
that,  as  the  whole  business  was  conducted  by  the  husband  without 
the  slightest  reference  to  his  wife's  personal  estate  —  her  name 
heing,  from  the  evidence  so  ooviously  used  as  a  cloak  to  cover 
the  property  from  the  claims  of  the  husband's  creditors,  —  that  it 
could  not  Ijo  overlooked  or  ignored  that  the  property  was  his 
and  not  hers;  the  oourt  holding  that  if  there  was  any  one  thing 
settled  in  relation  to  the  subject,  it  is,  that  whilst  a  married 
woman  may  buy  goods  on  credit,  it  must  be  on  the  credit  of  her 
(^eiiaratc  estate,  and,  as  against  the  creditors  of  her  husband,  she 
must  ailirniativoly  establish  that  fact.  IJut  whovc  a  feme  covert 
owns  property  of  value  sufficient  to  serve  as  the  foundation  of  a 
ci'Lilit,  direct  proof  that  the  credit  was  based  upon  it  may  not  i)c 
necessary,  as  the  jury  may  infer  that  fact  from  the  circumstances 


Hourr],  I.,  jntios,  8  Casey,  432  ;  Hallowell 
t'.  Hiiter,  11  Ciisov,  375. 

'  Gault  V.  SiilHn,  8  Wright,  307. 


2  Loinbach  v.  Tonipliii,  105  Pa.  522. 
8  116  I'u.  163. 


■  1 


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224 


COMMENTARIES  ON   SALES. 


[book  II. 


surrounding  the  transaction,  where  they  are  of  that  nature  that 
such  an  inference  can  be  drawn  from  them.^  But,  as  against  the 
creditors  of  her  husband,  slic  must  affirmatively  establish  the  fact 
that  goods  bought  by  her  on  credit  were  bought  on  the  credit  of 
her  separate  estate.^ 

In  Louisiana,  the  presumption  of  the  law  is  that  property  pur- 
chased during  the  marriage  belongs  to  the  community  and  is  lia- 
ble to  its  debts,  because  purchased  during  the  marriage,  wliothor 
the  purchase  was  made  in  the  name  of  both  or  cither  of  the 
spouses.  But  when  the  purchase  is  made  in  the  name  of  the 
wife,  she  has  the  faculty  of  rebutting  this  presumption  by  proof 
that  she  purchased  the  property,  as  her  separate  property,  by  the 
investment  of  her  paraphernal  funds,  which  were  administered 
by  her  separately  and  apart  from  her  husband  ;  so,  where  tlic  pur- 
chase was  made  in  the  name  of  the  wife,  under  her  autliuritv, 
the  price  being  actually  paid  by  her  with  her  i»araphcriial  fuiuls, 
and  the  property  thereafter  having  been  regarded  and  treated  as 
lier  own,  it  was  held  that  she  had  successfully  rebutted  tlio  jire- 
sumption  of  law  that  the  property  purchased  during  the  marriage 
was  community  property.^ 

In  California,  property  acquired  by  either  spouse  after  marriage 
is  community  property.  But  in  Harris  v.  Ilarris,*  a  womnu  be- 
fore marriage  filed  a  declaratory  statement  in  the  proper  United 
States  land  office,  of  her  settlement  u[)on  and  intention  to  pre- 
empt land  on  which  she  was  then  living.  After  marriage  she, 
with  her  husband,  jointly  occupied  the  land,  which  they  cultivated 
and  improved.  She  borrowed  money  upon  her  own  faith  and 
credit ;  paid  the  government  for  the  land,  and  the  patent  was 
issued  to  her  in  her  own  name,  with  her  husband's  kno\vl(>dge 
and  consent.  The  court  held  that,  as  between  her  husband  and 
herself,  the  land  was  the  separate  property  of  the  wife,  and  was 
not  community  property. 


r    II 


2.  Reduction  into  F^^-session. 

Resulting  from  the  relation  existing  betv;een  husband  and  wife. 
many  cases  under  these  acts  have  arisen  as  to  tlie  effect  ou  the 
wife's  property  of  such  relation,  and  as  to  the  acts  of  the  husbniid 
which  amount  to  a  reduction  into  possession  of  the  wife's  ptr- 
sonal  property.  Wo  examine  some  of  the  cases  bearing  on  those 
questions. 


1  Blum  V.  Ross,  116  Pa.  163;  Bonnrd 
V.  Kittc'ririK,  101  Pa.  181;  Hess  «;.  Brown, 
111  Pa.  124. 


8  Seeds  V.  Knhler,  76  Pa.  262;  Blum  v. 
Ross,  110  Pii.  163,  168. 

»  Stttutr.'i'  ?•.  Morgan,  39  La,  An.  632. 
«  7lCal.  311. 


PART  III.] 


MARBIFD   WOMEN. 


225 


In  Woodford  v.  Stevens,*  it  was  held  that  the  husband,  by  mar- 
'•iaiie,  ac(iiiires  an  absolute  ri<ijht  to  all  the  personal  jjropcrty  in 
possossiuii  belonging  to  his  wife,  and  that  all  subsequent  acquisi- 
tions by  bis  wife  of  ehoses  in  possession  vest  absultiti'ly  in  liini, 
unless  such  acquisitions  be  given  or  transferred  to  her  or  to  him, 
for  her  sole  and  separate  use.  Where  a  husband,  l)y  means  of  the 
nuirrini:-e.  ac(|uires  tbe  absolute  right  to  personal  propci-ty  in  pos- 
SL'ssiiiu,  lie  cannot  be  declared  a  trustee  for  his  wife  by  loose  and 
(Tcneral  remarks  in  conversations.  To  establish  such  a  trust 
apiinst  the  husband,  the  authorities  are  nnited  that  the  evidence 
must  1)0  clear  and  unequivocal.^ 

So,  again,  nothing  is  clearer  at  law  than  that  the  wife  cannot 
iic  the  recipient  of  a  gift  from  the  husband  so  as  to  vest  in  her  a 
legal  title  to  the  subject-matter  of  the  gift.  Their  iniity  prevents 
it.  The  personal  property  of  the  wife  at  law  belonging  to  the  hi'.s- 
band;  as  soon  as  a  gift  is  made  to  the  A/ife,  the  gift  becomes  the 
property  of  the  husband.  Courts  of  eiiuity,  however,  where  the 
intention  of  the  husband  is  plain  that  his  wife  should  have  to  her 
separate  use  a  portion  of  bis  estate,  and  when  the  rights  of  crcdit- 
iiis  are  not  in  the  way,  will  raise  in  him  a  trust,  when  no  third 
|icrson  is  interposed  as  trustee,  and  will  compel  him,  for  the  bene- 
fit of  his  wife,  to  execute  the  trust  with  which  the  property  may 
have  been  clothed.^  In  this  case,  the  husband  was  in  possession 
of  personal  i)roi)erty  bequeathed  to  his  wife  by  a  former  husband, 
us  administrator  of  such  former  husband.  He  made  a  final  settle- 
ment, and  it  was  ordered  by  the  court  that  he  and  jiis  wife  should 
retain  all  the  proceeds  of  the  estate  of  the  deceased  in  their  hands. 
The  eoiii't  held  that,  in  contemidation  of  law%  property  is  retliiced 
into  possession  when  it  is  in  such  a  state  that  the  husband  can 
lawfully  take  it  into  his  hands  if  he  will.  It  is  not  necessary  that 
he  should  have  actually  taken  it  into  his  custody.  If  he  has  a 
riiiiit  to  do  so  at  his  will,  it  is  enough.  When  no  suit  at  law  or 
equity  is  necessary  to  obtain  ])ossession  of  personal  jiroperty,  and 
the  husliand  may  if  he  will  take  actual  possession  of  it,  Imt  fails 
or  neglects  to  do  so,  the  projierty  is  not  the  less  reduced  into 
his  possession.  If  the  property  was  in  the  possession  of  the  wife, 
then  the  possession  of  the  wife  was  the  possession  of  the  husband. 
Ami  it  was  further  held  that,  at  the  date  of  the  order,  tbe  posses- 
sion of  the  liusl)and,  as  administrator,  ceased,  and  that  his  pos- 
session ^f/n'  viariti  commenced.'' 

In  Georgia,  it  lias  been  held  that  property  belonging  to  a  woman 


»K 


Mi  1'" 

\\m\ 

-    i    ' 


U^$ 


hi 


;! 


'  ■  k,: 


!".* 


'  .M  Mn.  M.'!,  4t7. 

"  Wiindlonl  V.  Slcphona,  51   Mo.  443, 
41';  KiihvtU  v.  Kiikimtrick,  70  Mo.  214. 
VOL,  1.  15 


«  "W.ilker  V.  Walker,  23  Mo.  367,  375. 


ifflfe  !v  . 


if  •' 

Ml 


226 


COMMENTARIES  ON   SALE8. 


[book  II. 


prior  to  her  marriage  may,  by  the  laws  of  the  State,  be  reduced 
to  possession  at  any  time  during  the  coverture ;  but  it  is  optional 
for  the  husband  to  do  so ;  and  if  he  fails  or  refuses  to  subject  it  to 
his  control,  he  cannot  be  compelled  to  do  so  by  creditors  or  others, 
to  the  exclusion  o  the  wife's  rights  or  interests  therein.  And. 
notwithstanding  the  act  of  1866,  making  such  property  the  sepa- 
rate property  of  the  wife,  he  can  still  reduce  it  to  possession ;  but 
if,  after  the  passage  of  that  act,  he  reduced  it  to  possession  fi)r 
her,  as  her  estate,  and  in  consideration  of  having  made  use  of  it 
for  his  own  purposes,  gave  her  a  mortgage  bond  fide,  to  secure 
the  debt  so  created,  the  lien  was  good,  and  took  precedence  of  the 
subsequently-acquired  liens  of  other  creditors,  although  he  might 
have  been  in  failing  circumstances.^ 

In  Troxell  v.  Stockl)erger,2  it  has  been  held  that,  in  Pennsyl- 
vania, the  fact  that  a  husband  acts  as  agent  for  his  wife  in  Iniying 
and  selling,  and  in  investing  her  money,  does  not,  without  her 
consent,  tranifcr  her  property  to  him.  The  purpose  of  the  Penn- 
sylvania act  of  1848  is  to  protect  a  married  woman  in  the  enjoy- 
ment of  her  separate  property.  It  is  not  necessary  that  her 
property  be  exclusively  in  lier  own  possession.  It  may  be  in  the 
concurrent  possession  of  herself  and  her  husband,  without  causing 
a  forfeiture  of  her  right  of  property .^ 

And  in  New  Hampshire  it  has  been  held,  where  a  husband 
lived  on  a  farm  owned  by  his  wife,  which  he  managed  as  her 
agent,  and  which  she  had  bought,  paying  part  of  the  price  «ith 
money  bequeathed  to  her, — securing  the  balance  by  her  note  and 
a  mortgage  upon  the  premises,  and  taking  the  conveyance  to  her 
separate  use,  free  from  the  control  or  interference  of  her  husband,— 
that  proceeds  of  timber  sold  off  the  land  by  the  husband  for  the 
purpose  of  raising  funds  to  pay  off  the  mortgage,  there  being  no 
fraud  in  the  matter,  could  not  be  taken  in  attachment  for  a  doht 
of  the  husband.* 

Fraudulent  representations  were  made  to  a  luisband  who  was 
acting  as  agent  for  his  wife,  by  means  of  which  she  was  induced 
to  buy  stock  at  an  exorbitant  price.  Subsequently  her  husband 
became  an  olhcer  of  the  corporation,  and  much  of  the  money  which 
his  wife  had  paid  in  for  stock  was  paid  out  under  tlie  direction. 
and  with  the  consent  of  her  husband,  as  an  officer  of  the  compauu 

1  Grote  V.  Pace,  71  Oa.  231;  Siiony  v.  ^  10.5  Vt\.  40.5. 

Haslam,  57  (la.   142:  Aivli.T  ('.  (Jcnlb  (37  «  Sw    Holcoiiih    i-.    Penplc's    Savings 

Ga.  195;  Sterliiij?  v.  Sims,  72  Ga.  51.     In  Bank,  11  Norris,  338. 
Georgia  the  Act  of  178!t  jilaci'S  real  upon  *  Webster  v.   Farniim.  CO  X.  II.  Ti'i^. 

the  same  footing;  as  personal  property  as  And  see  Horn  v.  Cole,  51  X.  11.  -S7;  ■''tt'- 

to  the   marital    rij^hts   of    the   husband,  vens  v.  Dennett,  51  N.  H.  321,  'M'i- 
Prince's  Dig.  225  ;   Sterling  v.  Sims,  72 
Ga.  64. 


husband 
as  lier 
•ICC  with 
note  and 
to  licr 
)an(l,— 
for  the 
)cing  no 
jr  a  deht 

who  was 
inthiced 
husband 

lov  wliich 

lircction. 

3ompau\. 

,'s    S:u-ing3 

In.  11.  TiM. 
p.  -iSI;  site- 
US. 


I'AUT  III.] 


MARRIED  WOMEN. 


227 


Ou  a  bill  filed  by  her  to  set  aside  the  sale,  it  was  claimed  that  she 
was  estopped  by  the  acts  of  her  husband.  IJut  the  court  held  that 
a  snilicicnt  answer  to  that  position  was,  that  whilo  her  husband 
was  payinjr  out  or  consenting  to  the  paying  out  of  the  money,  he 
was  not  then  acting  as  his  wife's  agent,  but  as  an  ollieer  of  the 
corporation,  and  that,  therefore,  there  could  be  no  ground  of  es- 
tojipol  as  to  his  wife.^ 

It  has  been  repeatedly  held  that  while,  under  statutes  wliich 
permit  a  married  woman  to  have  separate  property ;  to  make 
coutiacts,  and  to  do  business  as  a  feme  sole,  she  may  avail  herself 
of  the  services  and  agency  of  her  husband  in  the  conduct  of  her 
business,  or  in  the  management  of  her  property,  without  neces- 
sarily subjecting  it,  or  the  profits  arising  from  his  management,  to 
the  claims  of  his  creditors  ;  yet  an  insolvent  debtor  may  not  use 
his  wife's  name  as  a  mere  device  to  cover  and  keep  from  his  cred- 
itors the  assets  and  profits  of  a  mercantile  business  which  is  in 
trutli  his  own.- 

Aiul  from  the  opportunity  that  the  marriage  relation  affords  the 
husliaml  and  wife  to  conduct  a  scheme  to  defraud  creditors,  the 
transaction  will  be  vigilantly  scrutinized  by  the  courts,  particularly 
when  fraud  is  charged.  And  while  any  device  designed  to  cover 
the  property  or  acquisitions  of  the  husband's  debtor,  or  to  conduct 
his  business  in  the  name  of  the  wife,  or  some  member  of  the  fam- 
ily, to  defraud  creditors,  is  a  fraud  which,  wlien  discovered,  the 
law  will  not  tolerate,  but  will  brand  with  the  mark  of  its  condemnr- 
tion ;  yet  the  mere  fact  that  the  husband  gives  his  services  to  the 
wife  in  the  conduct  of  her  separate  business,  is  not  of  itself  sulli- 
cieut  to  vitiate  it  with  fraud,  or  to  make  her  interest  in  the  busi- 
ness or  the  profits  arising  out  of  it,  chargeable  with  his  debts. 
In  Aljl)cy  V.  Deyo,'^  it  was  held  that  a  husband  may  work  for 
his  wife  in  the  management  of  her  separate  business  or  property, 
without  any  compensation,  and  his  creditors  -.vill  not  thereby  ac- 
quire any  rights  against  the  wife  or  her  pr  >p'  'y.  And  to  the 
same  effect,  it  was  held  in  King  v.  Yoos,*  that  if  a  husband 
cliooscs  to  give  his  services  to  his  wife,  in  the  management  of 
her  separate  property  or  business,  the  fruit  of  such  labor  is  not 
his  but  another's,  and  on  principle,  the  creditor  cannot  seize  and 
appropriate  it  to  the  payment   of  his   debt.     So  that  if  a  hus- 


1  rSooth  V.  Smith,  117  111.  370. 

2  Hv.lc  V.  Fn>v  (Inil.),  28  Fod.  Rop. 
SIO,  SJ.l  S.'c  Bimlfre  v.  IJolin  (Iiul.),  0 
N.  K.  Ucp.  140;  Cooper  r.  Hiiiu,  49  Iii.l. 
3y3;  Sciit  1'.  Hudson,  8()  Iiid.  '288;  Mc- 
I."!iii  i:  Hoss  (Ind.),  7  N.  E.  R.'p.  5«7; 
Hwt  V.  Sorrc'll,  11  Ala.  386;  Coriiiiif,' v. 
Fowlur,  24  Iowa,  584;  Hamilton  r.  Light- 


nor  (Iowa),  .''.  N.  \V.  Rep.  680;  Whito  r. 
llildivth,  32  Vt.  265;  WohstiT  v.  Hil- 
drith,  ;{3  Vt.  4,^7;  Vooihccs  i".  Boncstell, 
16  Wall.  16;  Aldridfje  v.  Muiihead,  101 
U.  S.  3i)7. 

»  44  N.  Y.  343. 

*  14  Greg.  91,  97. 


i?i 


■ 


I 


m 


1 


>l-^l^; 


M 


1 
II 


' 


It 


ifi 


■  ■  t  i 

Mi; 


-k-r^:^ 


:'•    .f 


Ij 


T    ■ 


\    » 


228 


COMMENTARIES  ON   SALES. 


[book  II. 


band  chooses  to  give  his  wife  his  services  in  the  conduct  of  her 
separate  business,  the  creditor,  having  no  power  over  his  volition, 
or  to  compel  him  to  work  for  his  benefit,  is  not  defrauded.  Xur 
is  the  fact  of  such  service  being  rendered  any  ground  for  subjoctin? 
her  interest  in  sucli  business,  or  .he  profits  arising  out  of  it,  to  tlio 
payment  of  her  husband's  del)ts.^ 

Where  an  action  was  brouglit  against  a  husband  and  wife  on  a 
l)romissory  note  and  a  check,  the  signatures  on  which  were  both 
hy  tlic  hu.sband,  he  cUiiniing  that  he  so  signed  them  only  as  am;iit 
for  his  wife  ;  the  court  held  that  if  he  did  so  sign  them,  then  they 
were  not  jointly  lial)le,  and  if  he  did  not  so  sign  them,  I)ut  siL,ni(?iI 
for  both  as  i)rincipals,  they  would,  even  then,  not  be  jointly  lialile 
without  evidence  of  the  agency  in  the  husband  to  sign  his  wife's 
namo.2 

Speculations  in  stocks  and  securities  upon  margins  being  hold, 
in  Now  Jersey,  as  wagers  within  the  act  to  prevent  gambling',  un- 
lawful ; ^  it  was  held  that  a  promissory  note  and  assignnu'iits  of 
bonds  and  mortgages,  given  to  a  broker  by  a  married  woiuuii.  un- 
der her  husband's  inducements,  for  the  purpose  of  being  used  in 
such  irambling  transactions,  would,  on  a  bill  filed  '/  the  wife,  be 
ordered  to  be  given  up  by  the  broker  (who  had  taken  tlicm  witli 
knt^wledgc  of  the  facts)  to  be  cancelled,  as  being  void  for  illegal- 
ity of  consideration.* 

In  Xorris  v.  McCarnia,^it  was  held  that  while  a  married  woman, 
whose  money  was  being  used  by  her  husband  in  business,  iniilit 
be  estopped  from  claiming  she  was  a  partner  in  the  business  witli 
her  husband,  when  she  had  allowed  her  husband  to  use  tlic  ])ro])- 
erty  as  his  own,  and  when  her  assertion  of  a  claim  upon  it  as  a 
partner  would  disappoint  her  husband's  creditors,  who  had  be- 
come such  while  the  appearances  held  out  were  that  the  property 
was  that  of  her  husban(l ;  yet  if  she  was  estopped  from  olainiin': 
tiiat  she  was  a  partner,  and  so  entitled  to  an  interest  in  the  busi- 
ness, she  was  not  estopped  from  asserting  that  her  husbaml  was 
a  debtor  to  her,  if  such  was  the  fact,  for  her  actual  advances  to  him 
as  a  loan. 


1  See  Cooper  v.  Ham,  49  Ind.  393  ; 
Millur  V.  \W\i,  18  W.  Va.  81;  ISucklcv  i'. 
W.'lls,  33  N.  V.  ,518;  HosstVldt  v.  Dill,  28 
Minn.  -lUy  ;  Davton  v.  Walsh,  47  Wis. 
117;  Cuhbeiley  v.  Scott,  98  111.  38;  Ben- 
nett V.  Stout,  98  111.  47;  Lewis  v.  Joliiis, 
24  CaJ.  98;  Parker  v.  Bates,  29  Ivans.  598; 
Coon  V.  liigileii,  4  Col.  275;  Jlnrtinez  v. 
Ward,  19  Fla.  175;  Wells  v.  Smith,  54 
(ia.  2t)2;   Kankin  V.  West,  25  Mich.  200; 


Ploss  I!.  Thomas,  6  Mo.  Am.  l;')" 
I'.  Williams  (N.  J.),  3  Atl.  l!op, 

2  Wildernian  i\  liogcrs,  ii(i 
And  see  Lowekamp  v.  Korc 
Md.  95. 

^  Sec  Flagg  v.  Baldwin,  11 
219 

*  Tantiim  v.  Arnold,  42  X.  •) 

6  (Mich.)  29  Fed.  Hup.  757. 


;  Kiitclior 
2,J7. 

M.i.  -.i:. 

lllilltr,    ':i 

Slew.  E'l. 


PART  III.] 


MARRIED  WOMEN. 


3.  Her  Separate  Property. 


229 


The  enactment  of  statutes  recognizing  the  separate  existence  of 
a  married  woman,  by  securing  her  separate  property  to  her  exclu- 
sive use,  as  against  the  husband  and  his  creditors,  and  by  confer- 
ring upon  her  to  a  greater  or  less  extent  the  power  of  entering  into 
contracts  respecting  her  property,  and  of  disposing  of  it  indepen- 
dently of  her  husband,  has  clianged  the  common  law  in  many 
ros|iL'ets,  and  among  others  the  rule  which  was  based  on  the  idea 
uf  the  legal  unity  of  husband  and  wife,  which  disabled  them  from 
entering  into  contracts  with  each  other,  or  from  enforcing  such 
conti'uets  by  suit. 

In  liliude  Island  it  was  held  that,  under  the  provisions  of 
tluir  statute,^  a  married  woman  might  purchase  the  property  of 
her  liiishand,  paying  for  it  out  of  her  separate  estate  ;  might  loan 
him  money  from  her  separate  estate,  and  had  the  same  right  to 
cxpeel  iuid  receive  security  and  payment  as  any  other  creditor.^ 
It  was  also  held,  in  the  same  8tatc,  that  if  the  husband  and  wife 
treat  each  other  as  lender  and  borrower,  the  contract  of  loan  carries 
with  it  its  usual  incident  of  interest ;  and  that  the  wife  is  entitled 
to  lie  credited,  in  an  account  between  her  and  her  husband,  with 
the  jiroeeeds  of  the  sale  of  her  property,  although  they  have  been 
applied  to  defray  family  expenses  with  her  consent  and  approval.^ 

It  has  also  been  held  there  that  she  can  accpiire  by  purchase,  or 
irift  from  a  third  person,  the  note  or  other  obligation  of  the  hus- 
band, given  for  his  indebtedness,  and  that  she  is  entitled  to  pay- 
ment therefor  out  of  the  estate  of  the  husband,  precisely  as  such 
third  ])ersou  would  have  been.  Should  it  become  necessary  for 
her  to  enforce  payment  by  suit,  she  can  do  so  bv  her  next  friend 
in  equity,  or  through  a  trustee  of  her  estate  appointed  by  the  court 
on  her  i)etition,  under  R.  I.  Pub.  Stats.,  cli.  100,  §  18,* 

So,  in  Maine,  it  was  held  that  a  husband,  though  insolvent, 
might  convey  real  estate  to  his  wife  in  payment  of  a  note  which 
he  had  given  her  for  money  loaned,  if  there  was  no  intent  to  de- 
fraud or  delay  creditors  ;  °  and  that  the  assignment  to  the  wife 
of  a  mortgage  given  by  the  husband  did  not  discharge  the  mort- 
P'^c;  l)ut  that  the  mortgage,  and  the  debt  secured  by  it,  were 
property  which  she  had  the  same  right  to  purchase  and  hold  as 
any  other  person  could  do.^ 

And  in  New  York,  that  the  marriage  of  a  female  mortgagee 
with  the  mortgagor,  after  the  New  York  act  for  the  protection  of 

'  li.  S.  c.  136.  *  Franklin  Savings  Bank  v.  Greene,  14 

•  Steailnian  v.   Wilbur,  7  R.   I.  481,     R.  I.  1. 
^85.  6  Rantlill  V.  Lunt,  .'il  Mu.  246. 

'  Iluilges  V.  Hodges,  9  R.  I.  32.  «  Bean  v.  Bootliby,  57  Me.  295,  302. 


i' 


'/M 


ii  n 


; 


<-! 


\\\ 


230 


COMMENTARIES   ON   "ALES. 


[book  II. 


the  rights  of  married  women  '  had  been  enacted,  did  not  extin- 
guish her  right  of  action  upon  tlie  mortgage.^ 

But  in  Massachusetts,  the  common-law  doctrine  has  not  been 
clianged  by  statute,  and,  therefore,  there  can  be  no  valid  contract 
there  between  husband  and  wife ;  such  being  a  nullity.^ 

In  Missouri,  it  has  been  lield  that  money  saved  by  a  mamed 
woman  in  iiceping  boarders,  washing  and  mending  for  them,  witli 
the  consent  of  her  husband,  as  well  as  money  given  her  liy  Ikt 
father,  and  the  proceeds  of  land  bought  by  her  money  is  her  own; 
under  sects.  3:21)5,  821)6,  Kcv.  Sts.  of  Missouri.* 

But  in  Alabama,  while,  under  the  statutes,  a  married  vuman 
takes  and  holds  property  to  her  sole  and  separate  use,  liiuing 
therein  a  legal  estate,  yet  the  statutes  do  not  confer  upui  icr  u 
general  power  to  dispose  of  such  property.  The  power  of  dispo- 
sition  is  limited,  and  is  confined  to  the  specific  mode  prescribcil  bv 
the  statute.  The  joint  conveyance  in  writing  of  herself  and  lius- 
band,  attested  or  acknowledged,  is  the  only  mode  of  disposing  uf 
such  property  that  will  operate  to  devest  her  title,  whether  a  sale 
for  money  is  intended,  or  the  exchanging  of  one  article  of  |)eis()nal 
projierty  for  another."  Hence,  it  was  held,  that  where  a  horse  be- 
longing to  a  married  woman  had  been  exchanged  by  her  hushuiul, 
with  her  consent,  but  such  consent  had  not  been  consummated  in 
writing  under  the  statute,  her  legal  title  was  not  devested  in  the 
one,  nor  did  it  inure  to  her  in  the  other.*  So,  in  Woods  v.  Ihiu- 
lap,"  where  cattle,  a  part  of  a  married  woman's  statutory  se|i;irato 
estate,  were  exchanged  for  a  mule  and  a  sorghum  mill,  and  tliese 
exchanged  for  a  wagyn  and  oxen,  —  the  exchanges  being  made  by 
the  wife,  and  by  her  husband  acting  for  her,  and  with  her  autliur- 
ity,  but  no  writings  were  executed,  evidencing  either  exchange.— 
it  was  held  that  the  title  to  the  wagon  and  oxen  never  vested  in 
the  woman,  and,  therefore,  that  she  could  not  maintain  trover  for 
their  conversion. 

In  New  York,  it  has  been  held  that,  in  all  contracts  relating  to 
her  separate  estate,  a  married  woman  stands  at  law  on  the  same 
footing  as  if  unmarried,  and  she  can,  therefore,  make  negotiable 
paper  which  will  bo  governed  by  the  law  merchant,  and  wliicli 
can  be  sued  upon  in  the  ordinary  way  by  general  complaint,  ana 


1  Laws,  N'.  Y.  1848,  ch.  200. 

2  Power  V.  Lester,  '23  N.  Y.  .IS?. 

8  ClmiMiiiiii  V.  KellDRf,',  102  Muss.  216, 
248  ;  Alibott  v.  Winchester,  10.5  Mass. 
115.  But  see  Moilel  Lodging  House 
Assoc.  V.  Hoston,  114  Mass.  133. 

■»  Hartlett  V.  Uiiifrie.l,  94  Mo.  530. 
Ami  see  C'oughliii  v.  Hyan,  43  Mo.  99  ; 
Kidwell    V.  Kiikpatnck,    70  Mo.    214  ; 


Wood  V.  Broadley,  76  Mo.  23  ;  State  i. 
Gregory,  14  Mo.  App.  .')82. 

6  Sniytli  V.  Oliver,  31  Ala.  3'.»  :  Wi.!!- 
manu.  Abernathv,  33  Ala.  \r<i  ;  \V;irli41 
V.  Havisies,  38  Ala.  518  ;  IV.Uiii!'  r.  M'"k. 
35  Ala.  727  ;  Kvaiis  v.  Knglisli,  •!!  Ai;- 
416  ;  Williaius  v.  Auerhaeli,  57  Ma.  I'O. 

6  FoUak  V.  Craves,  72  Ala.  347. 

'  73  Ala.  109. 


PART  HI.] 


MARRIED  WOMEN. 


281 


without  special  statements.*  The  New  York  statutes  *  enable  a 
woinuii  to  acquire  and  hold  property  ;  to  bargain,  sell,  assign,  und 
tniii.>li'r  it ;  to  carry  on  any  trade  or  business,  and  perform  any 
labur  or  service  on  her  own  account ;  and  they  protect  her  in  the 
enjovuiont  of  her  carnintrs  from  her  trade,  business,  labor,  or 
8crvioi'S,  and  permit  her  to  use  and  invest  such  earniugs.^ 

it  is  settled  that  those  things  which  the  statutes  permit  her  to 
do  in  person,  she  may  also  do  by  another  as  her  agent.  This  is 
uoccssurily  so,  for  she  is  allowed  to  act  in  respect  to  them  as  if 
iiimiarried,  and  the  improvement  of  her  laud,  or  the  management 
ul  hei-  jiersonal  property,  whether  for  preservation  or  business, 
may  Ijo  conducted  by  her  by  means  of  any  agency  whicii  any  other 
owner  of  j)roperty  may  employ,  and  the  produce  and  increase 
thereof  will  be  hers.*  She  may  do  those  things  through  her  hus- 
band as  her  agent.^  And  she  may  also  have  such  a  community  of 
interest  with  her  husband  in  relation  to  real  estate,  as  will  render 
liei  liable  for  his  frauds  relating  to  it;  and  when  he,  professing 
to  act  as  her  agent,  makes  false  representations,  although  without 
hur  knowledge,  and  she  receives  the  proceeds,  she  cannot  retain 
the  fruits  of  his  iraud.*^ 

In  I'ennsylvania,  by  the  Act  of  April  3d,  1872,  a  married  wo- 
man's separate  earnings  were  vested  in  her ;  but  to  obtain  the  bene- 
fit of  the  act,  it  is  provided  that  she  must,  by  petition  to  the  Court 
of  Common  Pleas  where  she  resides,  bring  herself  within  the  ben- 
efits of  the  act.  It  has  been  held  under  this  act,  that,  where  a 
married  woman  who  has  brought  herself  within  the  act,  has  a 
separate  estate,  and  she  buys  property  on  the  credit  of  this  separate 
estate,  she  may  hold  it  against  the  creditors  of  her  husband.  And 
it  is  not  necessary  that  she  should  have  paid  for  it  at  the  time  of 
the  purchase.  She  is  not  precluded  from  buying  on  credit,  {)ro- 
vided  it  be  on  the  credit  of  her  separate  estate.  In  all  such  cases 
it  is  incuiubcnt  upon  her  to  establish  the  fact  that  the  purehase 
was  so  made,  to  ])rotect  her  title  against  the  ereditors  of  lier  hus- 
band. A  nuirricd  woman  having  no  separate  estate  cannot,  as 
against  her  husband's  creditors,  acquire  real  or  personal  property 
oil  her  personal  credit,  or  on  tiic  credit  of  her  subsequent  earn- 
ings.   Nor  does  the  fact  that  she  is  a,  feme  sole  trader  modify  the 


It 


.  '  K 


Freckins  v.  Holland,  53  N.  Y.  422. 

*  i-aws  of  18G0,  ch.  90  ;  Laws  of  18t)2, 
ch.  172. 

"  N.kI  )'.  Kiiincv,  106  N.  Y.  74,  77. 

*  Km\>\>  V.  Smith,  '27  N.  Y.  277,  278; 
Abbcv  V.  Dcvo,  14  N.  Y.  343. 

'  I'owc  V.  Smith,  4'.  N.  Y.  230. 
"  Knimm    <.    Bcadi,    Pfi    N.    Y.   398. 
As  to  the  riijlit  of  a  niaiiied  womau  in 


New  York  to  form  a  Imsinoss  partnersliip 
with  her  hiisband,  sou  Noel  i'.  kiniioy,  lo6 
N.  Y.  74  ;  Fiiii'lit!  v.  IJhiomiiigdiile,  38 
Ilnn,  220;  Zimiuui'man  v.  Krhiird,  i>8  ijow. 
11  ;  Cnilf  V.  Kinuoy,  U>  Ahb.  N.  C.  309, 
aflirmud  37  Huii,  140  ;  Scott  v.  Conway, 
68  N.  Y.  Cl!»;  l'>ittfr  v.  JJathman,  61 
N.  Y.  512.  Butseo  Kaufman  v.  Suhouffel, 
37  Hun,  140. 


iH^ 


k  i 


I 


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'K 


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m:  :i 


232 


COMMENTARIES  ON   SALES. 


fuOOK 


II, 


rule  as  to  the  burden  of  i)roof  being  upon  her  to  show  the  owner. 
sliip.  Where  the  married  woman  has  no  separate  estate,  pntpeitv 
boujrlit  by  her  upon  her  individual  credit,  and  subseciucntly  puid 
for  from  profits  in  business,  is  to  be  regarded  as  Ihe  jjroporty  of  lur 
husband,  and  is  subject  to  execution  by  his  creditors.  J>iit  wheio 
she  has  a  separate  estate  of  her  own,  she  may  purchase  propertv, 
and  it  will  be  protected  as  stated ;  and  it  has  also  been  held  tiiat 
she  may  employ  her  husband  to  superintend  the  business  and  liavc 
the  benefit  of  his  skill  and  labor.  Additional  property  purchasi'd 
by  such  means  belongs  to  her,  and  if  it  be  actpiired  as  the  njsult 
of  the  original  investment,  the  creditors  of  her  husliand  haw  no 
right  to  levy  ui)on  it;  she  having  as  much  right  to  cmplny  her 
husband  as  she  has  to  employ  any  other  person.^  And,  in  tlio 
same  State,  under  their  act  of  18')5,  giving  a  wife  the  priviUgus 
of  a  feme  sole  trader,  where  her  husband,  from  drunkeniiL'ss,  pro- 
fligacy, or  other  cause,  neglects  or  refuses  to  provide  for  his  wife, 
or  deserts  her,  it  was  held  that  in  sucl\  a  case,  she  is  to  this  extent 
relieved  from  her  marital  duties  and  disabilities ;  tliat  she  may 
devote  her  energies  on  her  own  accnunt,  for  the  support  of  herself 
and  her  children,  and  has  a  right  to  her  own  earnings  to  that  ond.^ 

In  Iowa,  under  §  3078  of  their  Code,*^  as  property  exonipted 
from  execution  by  statute  may  be  transferred  by  its  ownrr,  free 
from  any  claim  of  his  creditors,  without  regard  to  the  uses  to 
whicli  he  devotes  the  proceeds,  as  no  prejudice  or  injustice  can  be 
wrought  to  the  creditor  by  such  transfer,  for  the  reason  that  the 
property  is  beyond  his  reach,  and  his  conditions,  rights,  ami  rem- 
edies, would  not  be  affected  by  the  transfer;*  so,  where  a  debtor 
absconds  and  leaves  his  family,  the  wife  holds  the  exempt  pro]> 
erty ;  and  her  rights  thereto  and  authority  over  it  are  the  same  as 
those  of  her  husband  when  he  was  holding  it,  and  her  sale  of  snch 
property  passes  the  title  to  it.° 

In  the  same  State,  by  §  2214  of  their  Code,  the  expenses  of 
the  family  arc  chargeable  upon  the  property  of  both  the  hus- 
band and  wife,  or  either  of  them,  and  in  relation  thereto  they  may 
be  sued  jointly  or  separately.  In  Smedley  v.  Felt,''  it  was  licld 
that  the  purchase  of  a  piano  for  use  in  the  family  is  a  family 
expense  which  may  be  charged  against  the  property  of  the  wif", 


1  Baxter  V.  iMiixwell,  115  Pa.  469  ; 
Gibbs  &  SturrctMiiimf.  Co.  v.  Goe,  1  Pcn- 
iiyp.  238 ;  SlciI  v.  Kahler,  70  Pa.  262  ; 
Spering  v.  Liuiglilin,  113  Pa.  209.  See 
further,  Noblu  v.  Kri'uzkiiinp,  111  Pa. 
68;  Hess  v.  Brown,  111  Pa.  124;  Leiii- 
bacli  V.  Teinplin,  105  Pa.  522  ;  Kceney  v. 
Good,  21  Pa.  349  ;  Shuster  v.  Kai.ser,  111 
Pa.  215. 

a  Ellison  V.  Anderson,  110  Pa.  486. 


8  See  sec.  3075. 

♦  Bovan  v.  Haydon,  13  Imva,  12-2; 
Frost  V.  Shaw,  3  Ohio  St.  270;  I'onl  v. 
IJeed,  15  Ala.  826 ;  t'ook  v.  B.iiiio,  37 
Ala.  350  ;  Godmaii  v.  Smith,  17  lii'l.  l'^'^. 

6  Waugh  V.  Bridgffonl,  69  Iowa,  VA; 
Malvin  v.  Christoph,  54  Iowa,  562  ;  VuW- 
son  V.  Spenglev,  62  Iowa,  59. 

6  41  Iowa,  588. 


PAUT  III.] 


MARRIED   WOMEN. 


233 


It  has  also  been  held  that,  under  this  section,  the  husband  and 
wife  are  each  personally  liable.^ 

i>y  the  Montana  Code  (§  7),  it  is  provided  that  the  property 
owiiL'tl  \>y  a  married  woman  before  her  marriage,  and  the  increase, 
use,  and  profits  thereof,  shall  be  exempt  from  all  debts  and  liabil- 
ities of  the  husband,  provided  a  list  of  the  property  of  such  mar- 
ried wuniau  is  recorded  in  the  oflicc  of  the  register  of  deeds  of  the 
]  r(j|icr  county."'^ 

In  ruliuer  v.  Murray,'^  it  was  held  that  this  provision  was  sub- 
stantiiillv  foiuplied  with  where  a  list  was  filed  bv  a  woman  before 
mari'iiige,  in  her  maiden  name,  in  which  she  gave  notice  of  her 
iiitoiuJL'd  marriage  ;  and  that,  as  against  a  wrong-doer  to  her  sep- 
arate property,  she  had  a  right  to  sue  in  her  own  name.  And  it 
has  also  been  held  there,  that  creditors  of  a  husband,  whose  wife 
has  made  her  declaration  under  the  statute  as  a  sole  trader,  and 
is  carrying  on  business  in  her  own  name  and  on  her  own  account, 
caiiiiut  seize  the  money  or  property  belonging  to  such  business  in 
satislaction  of  the  debts  of  the  husband.  The  declaration,  when 
]iroi)erly  recorded,  is  notice  to  the  public  not  to  trust  the  husband 
on  account  of  the  proj)erty  used  in  the  business  of  the  wife  as  a  sole 
trader.  In  order  to  impart  such  notice,  the  declaration  must  spe- 
cifically set  forth  the  nature  of  the  business  the  wife  intends  to 
cany  on  and  transact.  But  where  the  declaration  designated  the 
business  to  be  carried  on  "as  farming  and  ranching,  keeping  and 
iniiiiilaining  a  hotel,  and  buying  and  selling  property,  real,  per- 
sonal, and  mixed,"  it  was  held  that  the  married  woman  could, 
under  this  last  clause,  as  well  purchase  a  saw-mill,  engine,  boiler, 
and  fixtures,  as,  under  the  previous  clauses,  she  could  have  bought 
a  cow  or  horse  for  her  farm,  or  provisions  for  her  hotel.^ 

And  in  ^[innesota,  a  claim  by  a  married  woman  for  nursing  l»er 
Inisbaud's  boarder,  under  an  agreement  between  the  husband  and 
wife  that  she  was  to  be  paid  for  such  services,  the  boarder,  how- 
over,  not  being  cognizant  of  such  an  agreement,  was  sustained, 
there  having  been  no  question  of  set-off  or  counter-claim  mixed 
up  with  the  matter.*^ 

In  Indiana,  a  married  woman  may  execute  a  promissory  note 


1  Hiiipdlcy  V.  Felt,  41  Iowa,  58S  ;  Law- 
icnci'  V.  Siiiiiaiiii'ti,  24  Iowa,  80  ;  Finn  v. 
Hii^c,  12  Iiiw.i,  M'i\  .loiiL's  i>.  (Uas.s,  48  Iowa, 
34,') ;  Kain  r  i\  hjiiciy,  52  Iowa,  725.  In 
Fru>t  n.  Vavkvr,  t>:>  Iowa,  178,  it  was  held 
tliat  an  oij^aii  wliieli  was  kept  as  an  article 
f>i  taniily  usu  for  several  years  came  witliin 
this  section,  altIiouj,'li  it" was  alleged  that 
it  was  lioii^'tit  for  sale,  and  that  the  wife's 
lands  were  liable  to  bo  subjected  in  equity 


to  a  judgment  against  her  husl)and  for  tlic 
priee  of  the  organ.  And  see  Vaiidereook 
t'.  Gere,  li'J  Iowa,  467,  and  Kniieking  v. 
Selioltz,  lb.  473,  as  to  liabilities  of  the 
wife  in  connection  with  transactions  be- 
tween her  and  her  husband. 

2  K.  S.  Jlont.  p.  588,  §  866. 

8  6  Mont.  125. 

<  Shed  V.  niakely,  6  Mont.  247. 

6  Kiley  v.  Mitchell,  36  Miuu.  3. 


h 


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234 


COMMENTARIES  ON  SALES. 


[book  II, 


■f  i 


IH- 


for  property  purcliascd  by  her,  and  her  ability  to  contract  there  is 
now  the  rule,  and  disability  is  the  exception.' 

IJy  statute,  too,  in  Indiana,  she  is  expressly  bound  by  au  es- 
toppel in  paiH.  Wliile  mere  representations  will  not  estop  a  mar- 
ried woman,  it  has  been  held  there  that,  where  they  are  aetoil  on 
in  {food  faith  by  the  i)er.son  to  whom  they  are  made,  and  who  has 
no  information  that  would  lead  him  to  believe  they  are  not  true. 
they  will  e.stop  her.  If  made  to  one  who  knows  that  they  are  nut 
true,  or  to  one  who  is  chargeable  with  that  knowledge,  they  will 
not  have  the  effect  of  an  estoppel.  Where,  however,  to  permit 
the  married  woman  to  deny  what  she  has  positively  atlirnn.d  wouid 
operate  as  a  fraud  upon  one  who  has  acted  in  good  faith,  sho  will 
be  held  to  be  estojiped.  It  may  be  that  mere  silence  when  sho 
should  speak  will  not  create  an  estoppel,  but  whero  sh(>  makes 
positive  representations  and  thus  misleads  one  who  acts  in  jruud 
faith,  an  estoppel  will  arise.^ 

But  if  a  man  colludes  with  the  husband  to  secure  from  the  wife 
a  representation,  whether  in  the  form  of  au  allidavit,  or  in  auv 
other  form,  he  cannot  insist  that  the  wife  is  estopped  from  show- 
ing that  the  representation  was  not  true.''  IJut  such  repirseiita- 
tions  estop  a  married  woman  from  defeating  negotiable  paper  in 
the  hands  of  a  bond  fide  indorsee,  who  acquired  it  without  notice; 
for  value  and  before  maturity.'* 

The  earnings  of  a  married  woman  arising  from  labor  and  ser- 
vices done  and  performed  on  her  sole  acco'int  become  'or  so|)a- 
rate  property  in  Ar'-ansas.^  It  has  been  held  there  that  she  may 
sell  her  separate  proj  "tv  to  pay  her  husband's  debts."  Sho  may 
also  devote  the  earnings^  '  ■^\'  labor  to  the  same  purpose  if  she 
desires  to  do  so ;  and  where  '^ore  is  no  other  objection  to  the 
contract,  an  executed  agreement  uy  a  married  woman  to  pay  a 
debt  due  by  her  husband  and  son  for  board  is  binding  on  her." 

A  married  woman  purchased  fixtures  and  furniture  in  her  own 
name  and  with  her  own  ir.oney,  and  allowed  her  husband  to  use 
them  for  the  purpose  of  fui-i' shiu^  him  with  facilities  for  carry- 
ing on  business  in  a  market ;   he  paying  her  rent  for  the  articles. 


1  Arnold  v.  E\\<ihn\im,  10;!  iin'.  512; 
liavnctt  V.  Iliusliliar^rer,  105  lud.  410  ; 
McLt'od  V.  .Etna  iiife  Ins.  Co.,  107  Iiid. 
394  ;  Cliimdlcr  v.  Spencer,  109  Ind.  553  ; 
Kosii  V.  ''ratlici',  103  Ind.  191  ;  Bennett  v, 
Mattiniilev,  110  Ind.  107  ;  Indiana,  &c.  li. 
Co.  It.  Allen,  113  Ind.  581. 

2  Lane  v.  Sehlenmier,  114  Ind.  29(1 ; 
Rogers  V.  Union  Cent.  Lite  Ins.  Co.,  27 
Am.  Law  Reg.  48  ;  Oirr.  White,  106  Ind. 
341  ;  Vogel  v.  Leiclmor,  102  Ind.  55 ; 
Corpp  V.  Canii>l)ell,  103  Ind.  213  ;  Ward 
V.  Burkshiro  Lite  Ins.  Co.,  108  Ind.  301. 


And  see  cases  in  note  to  27  Am.  Law  Rcj;. 
50,  et  S(!q. 

8  Keller  i'.  Orr,  106  In<l.  iM. 

*  Lane  y.  Sclileminer,  114  Iiid.  290, 

6  Man.sf.  nil,'.  §  4tl25. 

0  Seott  V.  Ward,  35  Ark.  4S0  ;  Huberts 
V.  Wilcoxson,  36  Ark.  35.0. 

1  Sellmever  v.  Welch,  47  Ark.  4S5. 
See  Collins  i'.  Wassell,  34  Ark.  17  ;  •'^'■i^tt 
V.    Ward,   35   Ark.  480  ;  Huberts  v-  Wil- 


coxson, 
43  Ark. 


36  Ark, 
163. 


355  ;  Walker  v.  Jwsup, 


PART  111.] 


MARRIED  WOMI^N. 


235 


Tlio  court  below  instructed  the  jury  that  if  a  married  woman 
plact'd  her  own  separate  property  in  the  liands  of  her  husband 
for  tlu!  iiurpose  of  carrying  on  his  fi;t'neral  ti'iide,  and  if  he  so  use 
it,  then  such  property  will  be  liablo  for  tho  debts  of  her  husband. 
Hut  tiic  iippt'llato  court  reversed  the  judi^inent  resultinj,'  from  this 
vnWivj:.  'liiey  held  that  under  the  statutes  of  the  Slate  (Illinois), 
ill  resiicct  to  the  rights  and  liabilities  of  married  women,  the  hns- 
baiul  occupies  the  same  relation  to  the  wife's  property  as  does  a 
straiip.'r.  She  may  sell  it  or  loan  it  to  him,  or  constitute  liim 
lior  iiLM'iit  for  its  management  or  disposition,  but  a  gift  of  it  by 
litT  i(t  bini  will  not  bo  presumed,  in  the  absence  of  proof  to  that 
crt'oct.'  if  a  stranger  had  purchased  the  property  in  question  and 
loaned  it  to  the  husband  to  be  used  by  him  in  the  market,  it 
wuiiM  not  be  liablo  to  be  taken  for  the  luisband's  debts.  In  the 
iiliseni'e  of  fraud  or  collusion,  the  lend(>r  would  still  retain  tho 
title  to  the  property  as  against  creditors,  and  would  have  a  I'ight 
t(i  retain  it  as  against  them.  Under  the  present  Illinois  statutes, 
till!  wile  occupies  the  same  position,  and  the  mere  fact  that  she 
loans  her  pro|»erty  to  her  husband  to  be  used  in  carrying  on  his 
trade  or  business,  docs  not  make  it  his  property  or  subject  it  to 
liis  deljts."'^ 

A  corporation  in  Massachusetts  was  summoned  as  trustee  of  a 
married  man,  and  by  their  answer  it  appeared  that  they  were  in- 
dolited  for  washing  done  by  his  wife ;  that  the  contract  for  the 
wasliinji:  was  made  with  the  defendant,  but  that  the  corporation 
were  informed  and  believed  that  the  husband,  in  making  the  con- 
tract, acted  as  the  agent  of  his  wife,  and  the  corporation  muler- 
stood  that  the  indebtedness  was  to  the  wife.  By  the  statutes  of 
that  State,^  the  work  of  washing  by  the  wife  for  a  person  other 
than  hor  husband  and  children  must,  "  unless  there  is  an  express 
agreenicnt  on  her  part  to  the  contrary,  be  presumed  to  be  i)er- 
fornied  on  her  separate  account."  The  court  held,  that,  on  the 
answer  of  the  corporation,  the  case  having  been  rested  on  it,  it 
must  be  taken  to  bo  true  that  the  husband  acted  as  the  agent  of 
his  wife* 

4.   Her  Contracts. 

The  Pennfylvania  Act  of  1848  secured  to  married  women  their 
separate  estates,  but  their  earnings  still  belonged  to  their  hus- 
bands.^   To  remedy  this  the  Act  of  1872  provided  that  her  sepa- 

'  Tonilinson  v.  Mntthews,  98  111.  178;  Sec  Fay  v.  Soars,  111  Mass.  151,  \r,6  ; 
Muik  i\  Ciillv,  22  111.  App.  542.  Clinton  Nat.  Bank  v.  liright,  120  Mass. 

^  MiiiL-  i<  '('.ill.,   oo  III     A.,,^    r>io  roK 


^  Muik  V.  Ciillv,  22  111.  App.  542. 

'  Mass.  Pill,.  Stilt,  c.  147,  §  4. 

*  Liiiioiul  V.  Anns,   145   Mass.   195 


i35. 


^  Speakman's  Appeal,  71  Pa.  25. 


•■( 


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t 


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14 


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236 


COMMENTARIES  ON   SALES. 


[book  II, 


rate  earnings  should  inure  to  her  separate  benefit  and  use,  and  be 
under  her  control,  independently  of  her  husband,  the  same  as  if 
she  were  a  feme  sole,  and  be  exempt  from  the  claims  of  her  lius- 
band  and  his  creditors.  It  was  held  tiiat  this  act  conferred  but  a 
single  right  upon  a  married  woman,  who  availed  herself  of  the  act. 
viz.,  the  right  to  retain  her  earnings,  from  whatever  source  de- 
rived, as  against  her  husband  and  liis  creditors  ;  but  that,  tlioiigh 
she  is  not  liable  ui)on  her  contracts  generally,  yet  so  far  as  it  be- 
comes necessary  to  the  use  and  enjoyment  of  her  separate  estate, 
a  married  woman  may  both  sue  and  be  sued.^  And  that,  in  a  suit 
against  a  feme  sole  trader,  her  husband  need  not  be  joined.^ 

And  in  a  case  where  a  married  woman,  within  the  act,  kept  an 
inn  or  tavern,  it  was  held  that  she  was  liable,  in  an  action  by  liei' 
bar-lceci)cr,  for  his  wages,  on  the  principle  that  if  she  assumes  tin' 
rights  of  a  feme  sole,  incidentally  she  is  also  subject  to  the  duties 
and  liabilities  of  afnue  sole,  and  where  a  married  woman  obtaiiLs 
the  services  and  property  of  others  in  keeping  a  hotel,  she  is  lia- 
ble to  the  parties  in  a  suit  at  law  precisely  as  if  she  were  a  ffme 
sole.  Were  it  otherwise,  a  married  woman,  no  matter  how  aiuiilc 
her  estate,  could  not  put  a  new  roof  on  her  house  when  neces- 
sary, nor  rebuild  it  if  destroyed.  If  she  loaned  hor  money  out, 
she  could  not  recover  it  back ;  and,  on  the  other  har.'l,  the  me- 
chanic who  repaired  her  roof  or  rebuilt  her  house  would  have'  nu 
remedy  to  recover  his  money .^ 

lint  in  a  case  under  the  Pennsylvania  Act  of  1855,  giving  a  mar- 
ried woman  the  right  and  privileges  of  a  feme  sole  trader,  where 
her  husband  has  neglected  or  refused  to  provide  for  her,  and  an 
action  was  brought  for  services  in  the  general  management  of  lier 
business  without  proof  of  an  agreement  of  hers  to  pay  tln'refor, 
and  without  evidence  to  show  that  the  services  were  nccessarv, 
she  was  held  not  liable.*  Yet,  whore  a  married  woma  i  owns  in 
her  own  right  an  improved  farm,  she  is  held  liable,  under  the  Act 
of  1848,  for  services  for  which  she  contracted,  wliicJi  biml  her 
separate  estate,  such  services  being  necessarily  required  and  ren- 
dered in  harvesting,  housing,  and  marketing  for  her  bcnclit  tlio 
gro"'ing  crop  on  the  farm.'' 

In  Hair  v.  Robinson,*^  it  was  held  that,  under  the  8th  sccti  ir,  of 
Act  of  1848,  which  provides  that  debts  contracted  by  the  wil''  for 
"  articles  Jiecessary  for  the  support  of  the  family  of  the  liKsmuiil 


I-. 


1  Slu'idlo  V.  AVoishlcp,  16  Pa.  St.  134; 
JIuiray  v.  Kcyi's,  ;?,'>  I'a.  St.  384  ;  Lippin- 
cott  i'.  Hopkins,  57  Pa.  St.  328. 

2  l?ufko  ('.  Wiiiklo,  2  S.  &  R.  180. 

8  Hovanl  v.  Ktittering,  101  Pa.  181. 
«  Miller  v.  Gleutwoith,  103  Pa.  84. 


6  Botts  V.  Knahb,  116  Pa.  'J-!.  ■'^'•'' 
Lipiiiiicott  V.  Hopkins,  57  Pa.  ■'>'>  ;  I-il'- 
pincntt  V.  Leed.s,  lb.  4'JO  ;  .Mahuu  f, 
(ionnlv,  24  Pa.  80  ;  Genuauia  Suv.  lik 
Appeal,  95  Pa.  329. 

«  108  Pa.  247. 


ART  III.] 


MARRIED   WOMEN. 


237 


and  M'ifc,"  fi  married  woman  was  lialjlc  an  her  contract  for  the 
rcasontiblc  expenses  of  the  burial  of  her  mother,  who  had  been 
liviii!:'  witli  thorn.  But,  uuder  this  section,  a  married  woman  is 
not  liiiljle  for  damages  resulting  from  a  breach  of  her  contract, 
but  only  for  articles  actually  furnished,  which  were  necessary  for 
the  siippoi"'^  of  the  family.^ 

A  married  woman  who  liad  purchased  stock  in  a  building  so- 
cietv,  whtu  under  disability,  continued  to  pay  monthly  instal- 
ments for  a  year  and  a  half  after  the  passage  of  an  act  removing 
lit.T  diriability.  It  was  held  taat  she  could  not  recover  payments 
made  by  lier  prior  to  the  passage  of  this  act.^ 

In  Connecticut,  the  statute  of  187*2  ^  i)rovides  that  an  action  may 
ho  sustained  against  a  married  woman  upon  any  contract  made 
witli  her  upon  her  personal  credit,  for  the  benefit  of  herself, 
her  family,  or  her  separate  or  joint  estate.  She  was  held  not 
liablo.  on  )ier  contract,  for  supjdies  furnished  her  son  and  his 
tamily.  who  were  living  apart  from  her.  The  court  held  that 
tlie  word  "  family  "  was  to  be  taken  in  its  ordinary  and  popular 
sense.  While  in  a  broad  sense  it  might  include  all  of  a  woman's 
children,  whether  living  '.vith  her  or  not,  and  even  other  relatives  ; 
vel  in  a  more  limited  sensO;  and  which  it  was  held  was  the  sense 
intended  by  the  statute,  it  includes  only  those  who  are  living 
toiretlicr  in  one  household.'* 

Tlie  statute  in  Indiana^  provides  that  all  the  legal  disabilities 
of  married  women  to  make  contracts  are  abolished  "  except  as 
lierein  otherwise  j)rovidcd."  It  has  been  held  under  this  act  that 
incases  of  married  women  in  that  State,  ability  is  now  the  rule 
luul  dis!il)ility  the  exception  ;''  and  that  as  the  act  confers  on  mar- 
ried women  a  general  power  to  make  executory  contracts  exeei)t 
such  as  are  pi'obibited  by  tho  statute,  and  the  purchasing  of  wear- 
iii'i  api'arel  for  herself  is  not  prohibited  by  tho  statute;  slie  may 
purcliasc  wearing  apparel  for  herself,  and  h or  promissory  notes 
I'xeeiilcil  fovthc  price  which  she  has  agreed  to  pay  for  it.  are  valid, 
and  may  be  enforced." 

In  the  construction  and  expo.^'ition  of  the  New  Yoik  ^larriod 
Women's  Acts,  by  the  courts,  it  is  now  well  defined  and  settled 
there  that  a  married  woman  cannot  bind  herself  by  contract,  un- 
less j'/vY.  the  obligation  was  created  by  her  in  or  about  carrying 

'  IMl  !'.  '  ,,      ;  115  Pa.  218;  Bevgnr  ♦  Hart    v.    OoLlsiiiith,    51    Ct.    479; 

''■  Cliik,  711  I'a.  a4e  :  Murray  v.  Kl-vs,  35  Clipsliiic  v.  Bmiiu^toii,  31  Ct.  326. 
!''i-  :!S1:  I'.irk  v.   Klfcbcr,  '37  Pa."  251  ;  &  Sco.  5115. 

R'iir'.s  Kvtatc,  <Jii   I'a.    430  ;  Davidson  v.  o  liosa  v.  PiatlnT,  1C3  Iiid.  191. 

MdMii.lli.sli,  on  I'a.  KiO.  1  Ainol.l  v.  Knrrleiiian,  103  Ind.  512. 

■  !'il/ii'  V.  Ik'cthoven  Building  Assoc,  Soc,  also,  Voi,'cl  v.  Lcichncr,  le2  liid.  55  ; 

•  -' i'''-  >^«i-  Kothschild  V.  Kaab,  93  ind.  488  ;  Wuls- 

»  iav.  of  1875,  p.  417,  §  9.  chner  v.  Sells,  87  Ind.  71. 


■     !  ■ 


,     ; 


I 


iiiip 


III-'' 


m 


238 


COMMENTARIES   ON   SALES. 


[book  ii. 


on  lier  trade  or  business  ;  or,  second,  the  contract  relates  to  or  is 
made  for  tlie  benefit  of  her  separate  estate ;  or,  third,  intention 
to  ch-irgc  the  separate  estate  is  expressed  in  the  instruuiont  or 
contract  by  which  the  liability  is  created  ;  or,  fourth,  the  debt 
was  created  for  property  purchased  by  her.^ 

In  the  Third  Xat.  Bank  t>.  Gucnther,^  in  an  action  upon  a 
promissory  note  made  by  a  married  woman  who  was  carrying  on 
a  mercantile  business  for  her  own  account,  under  the  manage- 
ment of  her  husband  as  her  agent,  she  claimed  that  the  note 
was  made  for  the  accommodation  of  the  payees  thereof,  and  was 
not  created  by  her  in  or  about  carrying  on  her  trade  or  business, 
and  was  not  made  for  the  benefit  of  her  separate  estate,  and  con- 
sequently that  it  was  a  void  contract  upon  which  the  plainlift 
could  not  recover.  But  the  court  held  that,  as  upon  its  face  it 
purported  to  be  made  in  her  separate  business,  being  signed  in 
the  firm  name  in  which  she  carried  on  business,  and  was  olt'crcd 
and  sold  to  the  plaintiff  under  such  circumstancos  as  to  war- 
rant the  assumption  and  inference  on  his  part  that  it  was  tlio 
defendant's  business  paper,  given  for  value,  the  defendant  was 
estopped,  as  to  a  bond  fide  holder  who  relied  upon  those  facts  and 
her  credit,  from  showing  that  the  note  was  otherwise  than  per- 
fectly legitimate. 

Tiie  same  principle  was  acted  on  in  Alabama,  in  Lc  Grand  i\ 
Eufaula  Xat.  Bank,'^  where  a  married  woman  was  carrying  on 
business  in  the  name  of  '*  Stow  &  Co.,"  and  it  was  held  that  site 
could  not  be  permitted  to  deny  the  existence  of  such  firm  where 
the  name  had  been  assumed  publicly,  and  credit  ohtiiincd 
from  the  plaintiffs  on  the  faith  of  its  alleged  existence.  This 
is  precluded  by  the  principle  of  estoppel,  the  chief  purpose  of 
which  is  the  promotion  of  common  honesty  and  the  prevention  of 
fraud.* 

JJut  in  the  District  of  Columbia,  their  statute^  merely  vests  cer- 
tain property  in  her  as  a  four,  sole,  and  gives  no  power  to  married 
women  to  buy  and  sell  as  f'me  sole  traders ;  and  the  decisions 
have  settled  the  question  there  that  the  act  confers  no  such  capa- 
city.*^ So,  in  Hitchcock  v.  Richold,"  where  the  defendant,  a  mar- 
ried woman  living  with  iier  husl)and,  was  carrying  on  business  ns 
a  retail  dealer  in  boots  and  shoc3,  on  her  own  account  and  with 

2  13  Abb.  N.  C.  428. 

8  81  Ala.  123. 

«  Cftklwell  r.  Smith,  77  Alii.  157. 

6  liev.  Sts.  §§  727,  729. 
0  Hitch  V.    Hyatt,  3    MiicArth.  53C; 

Schneider  v.  Garland,  1  Mack.  350. 

7  5  Mack.  414. 


1  Saratoga  County  Hank  i'.  Priiyn,  90 
N.  Y.  250.  Si'o  Tlio  Manhattan'  Brass 
and  Manui'.  Co.  (>.  Thoin|is()n,  .^8  N.  Y.  80; 
Nasii  V.  .Mitchell,  71  N.  Y.  199  ;  Tiuincvor 
V.  Tiirn(ini.st,  85  N.  Y.  516.  All  her 
other  olili,!,Mtions  arc  void.  Hudson  v, 
Hudson,  1  .Sheld.  386  ;  IJogert  r.  (Jnlick, 
65  Uarb.  322  ;  Downing  v.  O'Brian,  67 
Biub.  682  ;  Bukur  v.  Lamb,  11  Hu.i.  51«. 


Im:"  * 


rrvmii  on 


PART  III.] 


MARRIED  WOMEN. 


239 


her  separate  estate,  in  the  District,  and,  for  the  purpose  of  keep- 
ing up  lier  stock,  she  bought  goods  and  gave  her  promissory  notes 
for  thera ;  in  an  action  on  the  notes  she  was  held  not  liable.^ 

In  Indiana,  in  an  action  against  a  feme  covert,  on  her  promis- 
sory notes,  she  claimed  that  she  signed  them  only  as  surety,  and 
tlmt  she  received  no  part  of  the  consideration.  The  court  held 
that  while  a  married  woman  might  bind  herself  by  an  executory 
contract,  the  consideration  of  which  is  personal  property  pur- 
chased by  her  for  her  own  use,  and  the  ownership  of  and  title  to 
wliicli  vest  in  her,  even  though  such  property  be  contracted  for 
and  delivered  to  another  in  her  behalf,  yet  she  cannot  so  bind 
herself,  in  that  State,  when  property  is  purchased  the  title  to 
which  is  to  vest  in  another.^ 

A  suit  was  brought  in  Louisiana  against  a  married  woman,  by 
a  niece  who  had  been  living  with  her  aunt  and  her  husband,  for 
money  and  goods  alleged  to  have  been  received  by  the  aunt,  after 
''0  had  been  judicially  separated  in  property  from  her  husband. 
!.ie  court  t)"low  held  that  the  wife  was  liable ;  but  this  decision 
was  reversed  on  the  ground  that  the  receipts  of  the  wife  had  not 
hocn  from  the  representatives  of  the  niece  but  from  the  husband, 
who  had  received  the  same  in  his  capacity  of  "tutor"  of  the 
niece,  and  that  he  alone  was  liable.^ 

A  married  woman,  the  owner  of  real  property  as  her  solo  and 
separate  estate,  in  Missouri,  may  charge  it  in  equity  by  the  exn- 
cutinn  of  a  note  for  the  payment  of  money,  and  in  equity  a  note 
made))y  a  wife  payable  to  the  husl)and  is,  in  the  hands  of  a  third 
party,  capable  of  enforcement  as  a  charge  against  her  separate 
estate*  it  follows  from  this,  that  since  the  Missouri  act  of  1875,'' 
a  married  \  oinan,  as  to  her  sole  and  separate  property,  can  act  as 
^feme  .so'. ,  -  -  has  ihd  jtts  dis(pone.n<U,  and  can  bind  herself  by  any 
coutrn<  *^  si ."'  ''My  make  for  the  sale  of,  or  by  any  contract  for  the 
jii'rcli;  e  '  •!',  i,er  separate  means  of,  personal  property  as  her 
solo  and  3(  f),' ate  property.  Tier  piower  to  ])urchase  gives  her  a 
right  vo  coiiti.  'i  for  the  payment  of  the  consideration  so  far  as 
to  charue  the  property  with  such  incumbrance  as  may  be  agreed 
upon  to  secure  its  payment.  A  judgment  given  for  this  jiurpose 
was  hold,  in  I'ennsylvania,  not  void  on  the  ground  of  coverture, 


'  Tlii'couit  siiid  :  "Till"  I'oiisiclt'ration 
"f  li;inlslii|,  imd  tViiiid  upon  rrcditors  is 
nuitlnd  !.■  IK)  wcijihi.  It  is  tlicir  duty  to 
kimw  til.'  '  i\v  tcliitiui;  to  tlif  ciipacity  of 
iiiniiiiMl  >  I  .Ml,  Just  as  tiicy  must  ho  lu-ld  to 
KiiMW  i'      '  r.v  as   to  tlic   caiiilcitii'S  of  in- 


deal   VI    i^^noranue,  tlu'y 


f.ll)t!l.       J, 

iiiust  n('ci'[,i  J  '  consi'ijucnccs,     Cei-tainly 
it  is  not  fui  us  to  add  to  or  straii.  this 


statute.  Our  duty  is  simply  to  construe 
it."     //'/'/.  I'J'2. 

••2  (handler  r.  Spencer,  109  Ind.  h:,^. 
See  UothsehiUl  !•.  ]{iiah,  it3  Ind.  48S  ; 
Wulscdmer  v.  Sells,  87  Ind.  71. 

»  (ilass  V.  Meredith,  ;i7  La.  Ann.  625. 

♦  Morrison  v.  'Ihistle,  07  Mo.  6<)6 ; 
McQuie  I'.  Penv,  58  Mo.  59 ;  Kimm  ». 
Weipi)ert,  46  Mo.  f)3.'). 

*  Kev.  Sts.  §  321)6. 


(ii  , 

■  •  !    ; 

y\    1 

1  '     ' 

n  |l 

m 


»  .         !, 


ill 


i 


'!.^  it 


Il'  1    i 


.,1 


1  .1 


i    ,    'I 


r  i  ■! 


240 


COMMENTARIES  ON   SALES. 


[book  n, 


on  the  principle  that  if  a  coiirt  permitted  a  married  woman  to 
retain  property  she  had  purchased,  and  at  tlie  same  time  refused 
payment  of  the  consideration  money,  it  would  bo  unjust.'  And 
in  Missouri,  recognizing  the  correctness  of  this  decision,  it  was 
held  that  a  feme  covert  is  bound  by  her  promissory  note  or  deed 
of  trust  to  secure  the  payment  of  a  purchase  matle  by  her.^ 

In  Nebraska,  where,  under  their  statute,'^  a  married  woman  is 
enabled  to  carry  on  business  on  her  sole  and  separate  account,  it 
was  held  that,  as  the  statute  enables  her  to  carry  on  a  separate 
"trade  or  business,"  her  defence  that  a  promissory  note  given  liy 
her  was  not  given  in  relation  to  her  separate  "  estate,"  was  not 
sufficient ;  that  when  a  married  woman  sets  up  her  covertiu-e  to 
avoid  liability  on  her  contracts,  she  must  in  her  answer  negative 
all  the  causes  'rxm.  which  otherwise  her  liability  might  be  inferred, 
as  that  "  the  C(  i  did  not  concern  her  separate  property,  trade, 

or  business."  ^ 

Married  women  nave  general  power  in  Michigan  to  contract 
concerning  their  own  property,  and  have  been  authorized  tu  sue 
singly  for  all  causes  of  action,  and  to  be  sued  sei)arately  for  all 
their  torts.  Their  power  to  purchase  on  credit  has  been  fully  rec- 
ognized.'' And  where  a  married  woman  is  abandoned  by  her  hus- 
band, her  contracts  for  family  necessaries  will  bind  her."  And, 
as  such  necessaries  she  can  contract  for  medical  attendance 
which  she  may  require,  as  she  can  for  food  and  clothing.' 

In  Oregon,  sec.  10  of  the  Act  of  1878  *^  provides  that "  the  expenses 
of  the  family  and  the  education  of  the  children  are  chargeable 
upon  the  property  of  both  husband  and  wife,  or  either  of  them,  and 
in  relation  thereto  they  may  be  sued  jointly  or  separately."  The 
general  effect  of  this  act  has  been  to  extend  and  enlarge  the  riudits 
and  liabilities  of  married  women  much  beyond  previous  limitations. 
It  removed  the  disability  to  make  contracts  and  incur  liabilities, 
which  formerly  existed  at  law  ;  and  now  a  married  woman  may  do 
either,  and  her  contracts  and  liabilities  may  be  enforced  i)y  or 


»  Bo\vi'i',s  Appeal,  68  Pa.  123. 

-  Diiilpy  V.  The  Singer  Maiiiif.  Co.  88 
Mo.  ;K)1. 

3  Cm.  Sts.  oh.  .')3,  §  4. 

*  (iill.'spii'  1-.  Smith,  20  Neb.  455.  See 
Ifalo  V.  Christy,  8  Neb.  264  ;  Davis  v. 
First  Nat.  Bank  of  Cheyenne,  5  Neb.  242; 
Yale  !'.  Dctl.'rer,  18  N.  Y.  265  ;  22  N.  Y. 
450  ;  Corn  Kxehaii;;e  v.  Habcoek,  42  N.  Y. 
4.">0  ;  Savings  Bank  v.  Scott,  10  Neb.  83  ; 
Barnuin  u.  Vouiij^,  10  Neb.  300  ;  Welili  v. 
Ha.selton,  4  Neb.  308;  Boarinan  v.  (Iraves, 
23  Miss.  283  ;  Dolin  v.  Hiibbanl,  17  Ark. 
196  ;  Nunns  v.  (iivin.s,  45  Ala.  373  ;  Todd 
V.  Lee,  15  Wis.  380;  Ballin  v.  Pillaye,  37 
N.  Y.  37 ;  Bank  v.  Miller,  63  N.  Y.  639 ; 


Kimm  v.  Wiepert,  46  Mo.  5.'i2  ;  I.iii.olii  r, 
b'owe,  51  Mo.  571  ;  Bank  v.  Taylor,  (12 
Mo.  338  ;  Kantrowitz  v.  I'ratlier,  .".l  lii-l. 
105  ;  Hasheagaii  v.  Sjx'cker,  36  Iii'l-  4H; 
Jlodson  V.  Davi.s,  43  Ind.  258;  Slimim!: 
I'.  liartlKdoniew,  53  liid.  61;  riiil.ip^  i'- 
Graves,  20  Ohio  St.  3ii0  ;  Hiee  v.  Hail- 
road  Co.,  32  Ohio  St.  3.S0. 

"  Paul  V.  KohertH,  5()  Mich.  611;  C:imp- 
bell  w.  White,  22  Mieh.  17S. 

«  Paul  i:  Uoherts,  50  Mi,h.  6n;GHly 
^'.  Pheliis,  47  Mieh.  431.  See  Avlt  c. 
Warren,  47  Me.  217. 

'  Carstens  v.  Jlanselman,  61  Mich. 
426. 

8  Sess.  Laws  1878,  p.  94. 


tOOK  II, 


I'AIIT   lit.] 


MAURIED   WOMEX. 


241 


man  to 
refused 
}  And 
,  it  was 
or  ckod 


omfin  IS 
count,  it 
scpiirato 
i-'iveu  liv 

O  * 

was  not 
crture  to 

lu'irativc 

iut'orrod, 
•ty,  trade, 

I  contract 
cd  tu  sue 
ly  for  all 
I  fully  rcc- 
y  her  luis- 
[>!•.'"'  And, 
ittomlancc 

Uini^.' 

oexiienscs 

-;liar;j:eablc 

thcui.aud 

dy."    The 

the  ri'ihts 
limitations. 

lialtilities, 
lan  may  do 
■ced  l»y  Ol- 
io ;  Liii.'olnr. 
I,-.  'I'iivlor,  tii 
|llii'V,':U  111'!. 
I5f)  lu'l.  4U; 

|r,8    ;     Sll  Mlllnll 

',  riiii.il"*  '■• 

llUoe  V.  ll'iil- 

[h.  ()1 1 ;  C.hIv 
1  Sci'  Ayor  I'- 

CI   Jlicli- 


against  licr  to  the  same  extent  and  in  the  same  manner  as  if  she 
WL'it'  luunarricd.  For  liabilities  incurred  as  a  family  expense,  she 
may  be  sued  at  law  jointly  with  her  husljand,  or  separately,  and  a 
porsiiiial  judjrment  may  be  rendered  against  her.'  And  in  Pliipps 
)'.  lu  lly,'-  it  was  held,  that  though  there  is  a  remedy  at  law  which 
niav  be  enforced  against  her  for  an  indebtedness  incurred  as  a  fam- 
ily expense,  for  which  her  property  may  become  liable,  yet  as  there 
is  no  intent  clearly  manifested  by  the.  statute  to  exclude  the  jiiris- 
dictiun  which  {)reviously  existed  in  equity  against  the  separate 
|iio[iLrty  of  a  married  woman,  the  creditor  may  resort  to  either 
ioruai  to  enforce  his  claim.^ 

5.  Hkr  Liahilities,  independent  of  ITer  Contracts. 

Under  the  statutes  in  some  of  the  States,  a  feme  covert  is  held 
liable  under  certain  contracts  to  which  she  is  not  herself  a  party. 
Siieh  is  the  case  in  Iowa,  where  it  has  been  held  that,  in  the  ab- 
sence of  fraud  and  collusion  between  the  husl)and  and  the  credit- 
ors, tbo  acts,  agreements,  and  promises  in  relation  to  the  family 
expenses,  etc.,  are  binding  upon  the  wife,  without  any  express 
consent  or  action  on  her  part.  The  husl)and  may  change  the  form 
of  indebtedness,  as  by  giving  his  note  for  the  account  without 


1  Wiitkiiis  V.  Mason,  11  Orrg.  72.  See 
aUo  Pcilly  /■.  Walker,  00  Iowa,  88  ;  Jones 
f.  (ilass,  4S  Idwa,  345. 

-  li'.OiVi,'.  -21:5. 

'  S,,.  Mitclu'll  V.  Otey,  23  Miss.  236. 
The  cast'  u[  iifo  v.  Mnggoiidtjc,  5  Taunt. 
3ii,  wns  an  a"tion  ol'  assumpsit  liasod  on 
tlio  ]ii(iiiiisi'  of  a  widow  having  a  soparate 
estiite  til  pay  a  debt  contracted  on  the 
iivilit  of  Mirli  estate  during  coverture. 
llif  inii";ti(m  was  wlietlier  lier  jiroinise  af- 
ter ciivcrtiuc  was  liased  on  sutiicient  con- 
si'lfnticiii.  l,(inl  Manslield  .said  :  "It  lias 
loni;  liirii  i'>taMislied  tliat  v.diore  a  ])ersnn 
is  lioinid  nmndly  ami  conscientiously  to 
pay  a  ilclii,  tliougli  not  legally  lionnd,  a 
Milwipii'iii  ]i|(iiiiis('  to  pav  will  give  a  right 
III 'iilion."  ileatli,  J.,  said  :  "The  notion 
tliit  a  |iroiiiisc  may  he  su)>ported  hy  n 
nmnil  ,,hli;^ritiiiii  is  not  modern."  Parke, 
B.,  in  Kill,.  V.  Oliver,  2  Kx.  71,  said: 
''Tlie  priiiriplc  of  the  rule  laid  down  by 
h"nl  Maiisllrld  is  that  when  the  consid- 
ewtion  was  originally  benelicial  to  the 
jiiirty jiimiiiMiig,  yet  il'lie  bi'  protected  from 
lialiiliiy  liy  some  provision  of  llie  statute 
"rii'Miinnii  l,nv  incaiit  for  his  advantage,  he 
iiwy  iiiKiiiii, ,.  the  benefit  of  that  law,  and 
il  111'  pruiiiiM's  to  pay  llie  debt,  which  is 
[""lyMlMt  an  honest  "man  ought  to  do,  ho 
IS  thwi  1,111111,1  by  law  to  iierforni  it."  Tlie 
saiiio  ill),  triiie  was  held  in  Vermont,  where 

VOL.  I.  10 


it  was  held  that  the  promise  of  a  married 
woman,  made  during  coverture,  who  had 
received  value  to  her  own  u.se  from  tlio 
plaintiir,  who  relied  upon  her  promise  to 
pay,  and  upon  her  sejiarate  estate  as  tho 
means  of  enftireing  pay,  was  by  the  acei- 
diiit  of  her  coverture  void  at  law,  but 
valid  in  equity ;  that  her  subsequent 
promise  to  j)ay  after  coverture  was  cleaily 
founded  upon  good  consideration.  Slier- 
wiu  V.  Sanders,  WJ  Vt.  4it!t.  in  Itusliiig 
V.  Kusliiig,  47  N.  ,1.  L.  1,  in  discussing 
an  analogous  jirinciple,  tlie  murt  said  : 
"  15y  such  a  jironiise  what  In  liiie  was  an 
eijuitable  obligation  is  converted  into  a  le- 
gal ol)ligatioii."  And  in  Vanc(^  v.  Wells,  8 
Ala.  3!t!i,  it  was  held  that  when  goods  are 
furnished  to  a  married  woman  on  the  faith 
of  her  .separate  estate,  there  is  such  a  moral 
obligation  to  jiay  the  debt  as  will  sup- 
jiort  an  action  at  law,  on  a  ]ironiise  to  |iay 
niter  the  coveiture  lias  cea.sed.  See  Cioul,' 
ing  I'.  Daviilson,  2t)  N.  Y.  604;  La  Toucho 
V.  La  Toiiche,  3  II.  &  C.  576  ;  Priest  v. 
Cone,  f)!  Vt.  495  ;  Dale  v.  Robinson,  .ll 
Vt.  20  ;  Hubbiird  i'.  Hugbee,  58  Vt.  172; 
Howe  V.  Clie.sley,  5G  Vt.  727;  Doss  v. 
Peterson,  82  Ala.  253;  Hixon  v.  Hether- 
ington,  57  Ala.  165;  Thornton  c.  Guico, 
73  Ala.  321  ;  Underwood  v,  Lovelace,  61 
Ala.  155. 


\iV 


i 


'.I, 


'  i  ■ 


itSiHi 


\\ 


\\>\ 


1 


;  I  i 


!  5 


iii 


242 


COMMENTARIES  ON   SALES. 


[book  II, 


releasing  her.*  And  the  husband  may  maVo  such  contracts  for 
necessaries  without  using  the  name  of  the  wife,  and  may  •rive  his 
individual  note  therefor,  for  whicli  the  property  of  the  wife  will 
be  liable.2 

In'Frost  v.  Parker,^  where  the  husband  gave  his  note  for  fhr 
goods,  on  which  a  judgment  was  subsequently  obtained  n^fainst 
him  individually,  it  was  held,  in  an  action  in  chancery  to  stiljjcct 
the  wife's  property  to  the  payment  of  the  judgment,  that  it  was 
liable.  And  in  Phillips  v.  Kcrby,*  it  was  held  that  where  tlic  hus- 
band gives  liis  promissory  note  for  goods  purchased  and  used  as 
family  supplies,  the  cause  of  action  is  not  barred  against  tlic  wife 
jntil  action  upon  the  note  is  barred  as  against  the  iuisluii'd,  and 
that  this  is  true  where  the  note  has  been  reduced  to  judgment 
against  the  husband. 

And  in  Oregon,  where  the  statute  on  the  subject  is  the  same  as 
that  of  Iowa,  the  decisions  have  been  to  the  same  effect.  Tims  it 
was  decided  in  Watitins  v.  Mason,^  that  a  wife  is  liable  for  i:oo(l> 
for  familv  use,  although  sold  to  tlie  husband  on  his  in  '  vidual 
credit;  and  in  Black  v.  Sippy,^  that  the  wife  is  liable  for  necessa- 
ries incurred  as  a  family  expense,  although  originally  t'lKiii:<d  to 
the  husband,  and  for  which  he  had  given  his  note ;  nor  would  the 
transfer  of  the  note  discharge  her  from  liability. 

A  married  woman  in  Oregon  objected  that  she  could  not  bo 
joined  with  her  husband  as  a  co-defendant,  in  an  action  fur  tlie 
possession  of  real  property  of  which  both  wore  alleged  to  he  in  the 
occupation.  The  objection  was  founded  on  the  theory  that,  liv 
the  common  law,  her  identity  was  so  merged  in  his  that  slic  could 
not  have  possession  of  such  property  independently  of  him.  But 
the  Supreme  Court  of  the  United  States  decided  that  if  there 
were  any  such  rule  of  the  common  law,  it  has  been  altolished  in 
Oregon.  By  statute  of  that  State  of  1880,  all  laws  which  impose 
or  recognize  any  civil  disabilities  of  the  wife,  not  imposed  or  recog- 
nized as  to  the  husband,  were  repealed,  except  tliat  the  right  to  vote 
and  hold  otlice  was  not  conferred  upon  her.  And  "  for  any  unjust 
usurpation  of  her  property  or  natural  rights,"  iihc  was  (loohiirdt" 
have  the  same  right  to  appeal  to  the  courts  of  law  and  equity  for 
redress,  that  the  husband  has.  And  as  in  that  State  she  can 
liold  proj)erty  jointly  with  him,  or  separately  from  him,  there- 
fore, if  she  is  in  possession  with  him  of  property  wliieli  riuhtfuH}' 
belongs  to  another,  she  rai:y  be  jointly  sued  with  him  for  it* 
recovery.'^ 


1  Lawrence  v.  .Sinnnmon,  24  Iowa,  80. 
n  Smedlcy  v.  Felt,  41  Iowa,  590. 
»  65  Iowa,  180. 
«  34  N.  W.  Rep.  855. 


»  1 1  Ores.  72. 

6  15  Orcfr  r)74. 

'  Barrel!  v.  Tilton,  119  U.  S.  637. 


PART  iir.] 


MARRIED   WOMEN. 


248 


Under  an  act  similar  to  that  which  is  in  force  in  Iowa  and  Ore- 
gon, it  was  claimed  in  Illinois  that  the  statute  imposes  no  personal 
liability  upon  the  wife  for  family  expenses,  but  merely  creates 
a  charge  upon  her  property  which  can  be  enforced  only  by  proceed- 
inirs  /'(  rem  ajrainst  such  property  as  she  was  owning  at  the  time 
till!  Indebtedness  was  incurred.  But  it  was  decided,  in  accord- 
ance with  the  decisions  in  Oregon  and  Iowa,  that,  independent  of 
the  provisions  of  the  statute,  the  husband  was  personally  liable 
for  indebtedness  incurred  for  the  expenses  of  the  family,  and  the 
statnto,  by  providing  that  the  wife  may  be  sued  jointly  with  him 
ill  respect  to  such  indebtedness,  necessarily  imposes  upon  her  a 
liability  preeisely  commensurate  with  his,  wliieh  is  a  personal  lia- 
bi".  V,  as  upon  no  other  princijde  can  effect  be  given  to  the 
statute.' 

In  a  later  case  in  the  same  State  (Oregon),  it  was  claimed  for 
the  wife  that  she  was  not  liable  under  the  statute,  unless  (1)  the 
articli's  were  actual  necessaries,  and  purchased  for  the  family  with 
her  cDiiscnt,  and  (2)  unless  they  were  purchased  for  the  family, 
and  not  for  the  personal  use  of  the  husband.  But  the  court  held 
tlirtt  the  construction  of  the  section  does  not  limit  the  liability 
of  the  property  of  the  wife  to  expenditures  for  necessar//  family 
expenses.  It  apf)lies  to  the  exjienses  of  the  family  without  limit- 
ation or  (lualification  as  to  kind  or  amount,  and  does  not  depend 
upon  the  wealth,  habits,  or  social  position  of  the  })arty.  The  hus- 
haiul  is  the  head  of  the  family.  Jle  determines  primarily  what  is 
needed  for  it.  He  may  buy,  furnish,  contract  debts,  all  in  his 
own  name,  for  the  support  and  welfare  of  the  family,  ilis  wife's 
nnnie  need  not  be  known,  and  his  acts  and  agreements  arc  alike 
oblijiatory  upon  both.  The  consent  and  action  of  both  is  not  re- 
quiied  (hat  goods  purchased  for  any  individual  meiul)er  of  a  fam- 
ily, anil  used  by  him  exclusively,  shall  constitute  a  family  expense 
within  the  meaning  of  the  section.^ 

In  Dunn  v.  I'iekard,"  a  married  woman  claimed  that  she  was 
not  lialile  under  the  act  for  the  price  ol'  a  two-horse  douide-seated 
biigiiT,  sold  to  her  husband  on  the  grouiul  that  it  was  not  a  "  family' 
expense  "  within  the  meaning  of  the  act.  The  Supreme  Court  of 
tlio  State  of  Iowa  has  held  that  a  cook-stove  an<l  lixtures  used  in 
tile  family.  ])rovisions  and  clothing,  a  piano,  a  lady's  g(dd  watch 
and  a  chain,  an  organ,  a  sewing-machine  used  in  the  family,  arc 

'  n:\y.l(.n  V.  UdfTcrs,  22  111.  App.  .'>.') 7  ;  "  Hudson  v.   Kinjj,  23  111.  Ai>p.  118. 

Snicill.  V  r.   l-rlt,  4;{  Iowa,  (!07  ;  Smcdlev  See  Voii   I'latfii  v.   Knu'^cr,  11   HI.   App. 

'••  IVlt,  41  I(.w:i,  f,88  ;  Jones  v.  Gliiss,  48  627  ;    Miir(|iiitnit   v.    Kiaii«licr,   60    Iowa, 

•'i«a,  34.'i ;   iManiuaiJt  v.    Flangher,  60  148;  Liiwit-ni'i' r.  Sitiiianion,  24  Iowa,  80. 
'»«".  118.  8  24  111.  App.  423. 


i' 


V* 


S.   '      . 

11 


A' 
I 

I 

i 

■  K 
•  ill 

IS! 

1  f  I 


n 


II 


111." 


i\ 


V:  I 


m 


244 


COMMENTARIES  ON   SALES. 


[book  II, 


f 


1  ! 


expenses  of  the  family  within  the  meaning  of  the  statute.^  But 
that  a  reaping-machine,  merchandise,  and  live  stock,  and  a  Ijrcak- 
ing  plow,  money  borrowed  to  pay  family  expenses,  attorney's 
fees,  and  the  expenses  of  an  insane  wife  in  a  hospital,  were  not 
family  expenses  under  the  law.^  And  the  Illinois  Court  of  Ap- 
peal, reversing  the  decision  of  the  Circuit  Court,  held  tliat  tin; 
law,  by  judicial  construction,  should  not  be  carried  further  tliaiiit 
had  been ;  that  the  buggy  was  not  a  "  family  expense  "  fairly  wiliiin 
the  meaning  of  the  statute,  and  that  the  wife  was  not  liable.^ 

In  North  Carolina,  where  a  married  woman  is  similarly  made 
liable  under  their  code  *  "  for  the  support  of  the  family,"  it  wiis  hold 
that  she  is  not  liable  for  family  supplies  procured  to  keep  n\)  a 
boarding-house  ;  that  her  liability  is  confined  to  goods  bought  for 
the  direct  benefit  of  the  members  of  the  family,  such  as  food, 
clothing,  and  other  necessaries,  and  not  for  the  successful  prose- 
cution of  a  business,  from  the  profits  of  wliich  such  su[)port  is  to 
be  obtained,  whether  by  keeping  a  boarding-house  or  hotel,  or  bv 
engaging  in  any  other  general  occupation.^  She  may  become  a  free- 
trader with  her  husband's  approval,  and  thus  emanoii)ate  herself 
from  the  restraints  of  her  coverture,  under  §  1827  of  the  oodo; 
but  otherwise  she  can  only  exercise  the  power  given  her  l)v  the 
act  over  her  separate  estate  in  entering  into  an  executory  contract 
with  others." 

By  the  Code  of  Mississippi  of  1880,^  it  is  declared  that  unless  hv 
written,  acknowledged,  and  recorded  contract  between  luishanJ 
and  wife,  that  relationship  be  changed,  the  husband,  transacting 
business  with  the  means  of  the  wife,  as  to  all  persons  d'.'aling  with 
him  without  notice,  shall  be  held  and  treated  as  her  agent  and 
manager  in  business.  It  was  held  that,  by  fair  and  necessary  im- 
plication from  this  statute,  it  secures  to  creditors  the  right  to 
hold  the  wife  to  answer  for  all  debts  contracted  by  her  luishand 
with  her  means  in  all  cases  in  which  there  is  not  a  recorded  con- 
tract or  notice  to  the  creditor.  If  the  credit  is  given  to  the  hus- 
band, as  her  agent,  she  is  chargeable  as  a  known  principal.  If  it 
ue  extended  to  the  husband  in  ignorance  of  the  facts,  she  is  liiihlo 
on  discovery  as  an  undisclosed  principal.  But  she  is  respunsiblc 
as  an  undisclosed  principal  for  those  items  on  the  account,  and 


1  Fun  V.  Rose,  1'2  lown,  fi67  ;  Hawke 
V.  Urban,  18  lown,  83  ;  Sineillfy  «.  Felt, 
41  Iowa,  588  ;  Miiiiiuardt  v.  Fliiiifiher,  60 
Iowa,  148  ;  Frost  i;.  Hakcr,  65  Iowa,  178. 

a  MuCorinick  v.  Mertli,  49  Iowa,  536  ; 
Knssfill  V.  Loug,  52  Iowa,  250  ;  Davis  v. 
Ritchie,  55  Iowa,  719  ;  Fitzgerald  v.  Mc- 
Ciirty,  Ih.  702;  Delaware  Co.  v.  McDowell, 
46  Iowa,  170. 


8  Dunn  V.  Pickard,  24  111.  Api).  ^23, 
427. 

*  §  1826. 

6  flark  V.  Hay,  98  N.  C.  421. 

6  Doiigliertv  v.  .Sprinkle,  88  X.  r.  3(i'i; 
Wehstei-  v.  Laws,  89  N.  C.  22.) ;  State  t. 
Lanier,  89  N.  C.  517. 

T  §  1177. 


PART  IIF.] 


MARRIED  WOMEN. 


245 


tliose  only,  bought  for  the  use  and  benefit  of  tlie  business  trans- 
acted with  her  [(roperty,  and  the  burden  of  proof  is  upon  the  sellers 
to  show  what  items  fall  within  that  class.^ 

IJiit  tlio  connnon-law  obligation  of  the  husband  to  provide  sujh 
|)lic8  lor  his  iuniily  is  not  changed  or  modified  by  the  statute,  which 
liiis  relation  only  to  the  debts  contracted  in  the  business  in  which 
the  wife's  ))roporty  is  cmi)l()yed  ;  nor  is  the  wife's  estate  to  be 
siihjectod  to  the  ])ayment  of  debts  contracted  by  the  liusliand  for 
family  s'lpplies,  on  the  ground  that  he,  by  devoting  himself  to  her 
affairs.  (ilMihlcs  himself  from  making  provision  for  the  support  of 
tile  family.-  Yet  the  ordinary  ineid<'nts  'v^inectcd  with  the  rcla- 
tioiishipof  principal  and  agent  apply  to  t'.iem;  and  where  the  hus- 
band is  dealt  with  as  the  agent  of  the  wife,  and  the  goods  sold  are 
siieli  as  fall  within  the  scope  of  his  ap|)arcnt  power  to  purchase, 
the  wife  will  be  liable,  where  the  creditor  sells  to  him  in  good 
faith  as  agent,  though  the  goods  purchased  be  ap|)ropriated  for 
the  support  of  the  family  ;  for  this  is  a  matter  to  be  settled  be- 
tween the  i)rincipal  and  agent,  and  the  rights  of  the  creditor  are 
not  to  be  affected  by  any  sul)sequent  misap[)ropriation  by  the 
agent  either  to  his  own  use  or  to  that  of  a  third  person.^ 

A  married  woman  in  Kansas  advanced  money  to  her  husband 
with  wliieh  he  bouglit  goods.  Subsequently,  on  selling  the  goods, 
the  piireliaser  in  part  jiayment  therefor  conveyed  lands  to  the 
wife,  which  were  afterwards  sold.  The  court  held,  that  even  if 
there  had  been  fraud  between  the  husband  and  wife  in  the 
transaetion,  while  that  might  have  been  a  ground  to  set  aside  the 
transaction  itself,  it  did  not  make  other  property  of  the  wife, 
wliicli  she  had  owned  long  prior  to  the  purchase  of  the  goods,  lia- 
ble to  the  creditors  of  the  husband  for  his  debts.* 

In  Tennessee,  a  stock  of  goods  was  conveyed  to  a  married 
woman  by  her  father,  with  which  her  husband,  in  the  name  of 
liis  wife  and  ostensibly  as  her  agent,  carried  on  business.  He 
purchased  other  goods  in  the  name  of  his  wife,  for  whieli  he  gave 
a  promissory  note  in  her  name.  The  note  not  having  been  pnid, 
the  |ilaintitTs  filed  a  bill  in  chancery,  seeking  to  charge  the  wife's 
separate  estate  for  the  amount  of  the  note  ;  her  plea  of  coverture 
there  heinir  an  answer  to  an  action  at  law,  as  she  is  not  charge- 
able personally  with  such  debts,''  it  being  conceded  that  there  was 
nothing  in  the  contract  stipulating  for  or  creating  a  lien  on  the 
wife's  separate  estate."    The  court  held  that  the  contract  of  sale 


'  Piter  f.  Statcii,64  Miss.  421. 

•  (^ildwell  V.  Iliiit,  57  Miss.  123. 

'  I'lt-r  w.  Stateii,  64  Mi.ss.   421,  426  ; 
Cul.lw,ll  V.  il;irt,  hi  Miss.  123. 

♦  MiKiiimy  V.  Wiiid,  39  Kan.  279. 


*  Jackson  v.  Rutledge,  71  Tenn.  626, 
629. 

»  Ragsdalo  v.  Gossuttt,  70  Tenn.  729, 
736. 


!  •  i  ! 


.\  A 


Ml 


^i'M 


246 


COMMENTARIES   ON   SALES. 


[book  ir. 


\       i 


r," 


having  been  repudiated  by  the  wife,  the  title  to  the  goods  solj 
would  bo  ill  the  vendors,  and  that  chancery  would  conipd  thu 
return  of  the  property  if  in  the  possession  or  under  tlio  '-outrul 
of  tlie  feme^  but  that  other  goods  belonging  to  her  could  nut 
be  charged  with  such  a  liability.'^ 

Down  to  1887  ^  the  common-law  rule  prevailed  in  Alabama, 
that  tlio  earnings  of  the  wife,  or  such  property  as  she  aciinirud  by 
her  labor,  skill,  or  economy,  belonged  to  her  husband  ;  the  law  re- 
garding her  merely  as  a  servant.^  But  tlio  husband  might  cuii- 
tract  Avitli  her,  upon  a  suthcient  consideration,  to  release  such 
earnings,  or  he  might  by  gift  invest  her  with  a  separate  estate  in 
them  ;  and  such  renunciation  of  his  marital  rights,  in  the  absence 
of  actual  fraud,  will  be  upheld  as  valid,  except  as  against  existing 
creditors,  who  may  avoid  such  gift  as  tliey  could  any  other  volun- 
tary transfer  or  conveyance.^  All  that  is  required  to  this  end  is, 
that  the  evidence  of  the  gift  must  have  been  clear,  and  it  must 
have  been  apparent  that  the  husband  intended  to  devest  himself 
of  all  right  to  them,  and  to  set  them  apart  to  the  separate  use  of 
the  wife ;  the  essence  of  the  whole  transaction  being  the  assent 
of  the  husband,  clearly  and  satisfactorily  manifested  ;  and  this 
may  be  shown  by  evidence  that  the  husband  permitted  the  wife 
to  carry  on  a  trade  or  business,  in  her  sole  name  and  on  her  sole 
account,  without  any  participation  or  interference  on  Ids  part.* 
And  lands  conveyed  to  a  married  woman  after  debts  had  been 
contracted  by  her  husband,  but  paid  for  by  her  out  of  piolits  and 
earnings,  which  she  had  prior  to  the  accrual  of  such  debts,  de- 
rived from  her  trade  as  a  milliner,  and  constituting  part  of  her 
separate  estate,  by  reason  of  the  assent  of  her  husband  that  tliej 
should  be  hers  and  enure  to  her  separate  estate,  were  not  liable  to 
such  debts."  And  it  has  been  held  there  that  the  husband  mav 
lawfully  spend  his  owr.  personal  labor  in  improving  the  wife's 
estate,  without  any  fraud  on  his  creditors.^  And  he  may,  with 
equal  right  and  justice,  permit  his  wife  to  enhance  the  value  of 
her  own  property  by  her  personal  industry,  and  no  creditor  can 
complain  of  the  act  as  a  fraud  on  his  rights.^ 

Where  a  woman  after  her  husband's  death  paid  off  all  of  liis 
debts  except  one,  and  it  was  not  proved  that  this  was  done  in 


t  i 


1  See  Nichol  i\  Steger,  76  Tenn.  393, 
affirming  same  case,  2  Tunn.  Cli.  328. 

2  i-'ederlicht  f .  (ilass,  81  Tenn.  481 . 
8  Ala.  Acts  1886-1887,  p.  80. 

*  Gordon  v.  Tweedy,  71  Ala.  202  ; 
Evans  v.  Covington,  70  Ala.  440  ;  Carle- 
ton  V.  Rivers,  54  Ala.  467. 

5  Wing  w.  Roswald,  74  Ala.  346;  Pink- 
ston  1'.  McLemore,  31  Ala.  308  ;  Cohalan 
V.  Monroe,  70  Ala.  271. 


«  Evans  v.  Covington,  70  Ala.  140, 412; 
Sha  ♦fer  v.  Slieppard.  54  Ala.  244. 

"  Carter  v.  Worthington,  82  .Ala.  331. 
See  also  Wing  v.  Roswald,  74  Alii.  346; 
McLemore  v.  Nuckolls,  37  Ala.  (iiiJ. 

8  Holt  V.  Sorrell,  11  Ala.  3Sti. 

9  Sharp  V.  Sharp,  76  Ala.  312  ;  Allen 
V.  Terry,  73  Ala.  123  ;  Crockett  r.  Li'le, 
74  Ala.  301  ;  Lee  v.  Tannerbauni,  62  Ala. 
501. 


[book  II. 

foods  sold 

OlUpl-'l  tli« 

ho  <'()nti'ul 

could  nut 


Alabama, 
,C(\uiri;J  by 
the  law  10- 
ini;j;hl  con- 
ilease  such 
te  estate  in 
the  absence 
list  existing 
ither  volun- 
this  cud  is, 
and  it  must 
^•cst  himself 
larate  use  of 
f  the  assent 
i  ;   and  this 
ted  the  wife 
on  her  sole 
,n  liis  part.* 
its  had  been 
profits  aivl 
;h  debts,  de- 
part of  her 
d  that  they 
not  liable  to 
lusband  may 
g  the  wife's 
Ic  may,  with 
;he  value  of 
rcditor  cau 


p.i 


KT  III.] 


MARRIED  WOMEN. 


247 


imrsuar  ^  of  an  ncknowledgmcnt  of  an  obligation  to  pay  them, 
the  nieio  fact  that  she  paid  all  such  debts  but  one  would  not  tend 
tu  establish  a  liability  on  her  part  to  pay  that  one.^ 


1  Biiswaltcr  v.  raloiiiiircs,  66  C'al.  259. 
Sic,  riirllii  r,  us  to  u  iimnifd  woman  charg- 
iii"  litr  si'iiiiiiitt!  estate,  Solomon  v,  Gar- 
lan.l,  2  Miirk.  (I).  C.)  113;  Stewart  v. 
.Sinitli,  ;t  Mark.  '281  ;  Cooksou  v.  Toole, 
r.'.t  III. ;")!;');  Spfiin;;!'.  Liiuf;hliii,  113  Peiin. 
•jiUt;  Ziiiii  r.  Noeilul,  113  Peiin.  336;  Fowler 
r.  Jutub,  02  Mil.  32ti;  Uamoii  v.  Deevos,  57 


Mich.  247  ;  Hiil)l)ard  i-.  Biigbee,  68  Vt. 
172  ;  Rood  V.  Willey,  58  Vt.  474  ;  Habe- 
nicht  t;.  Uuwls,  24  S.  C.  461  j  Hank  of 
Lonisville  v.  (iray,  84  Ky.  565  ;  Jordan  v. 
Kecble,  85  Tenn.  412  ;  Wan  en  v.  Free- 
man, lb.  513  ;  Eckeiley  v,  McGhee,  lb. 
G61. 


•*v 


r 


t 


i. 


n 


Iff  all  of  his 
ivas  done  i" 


\o  Ala.  140, 412. 

lla-  '^^^-  „., 
In,  82  .Ma.  S^*' 
^,74  Ala.  340 ; 

Ala.  «*J-' 

Ma.  ;U2  ;  Allen 
lockett  r.  L"j''' 
Terbaum,  62  Ala. 


mrr 


mil 


V. 


248 


COMMENTARIES  ON   SALES. 


[book  H, 


BOOK  n. 

PART  IV. 

PURCHASES  AND  SALES  BY  SHIPMASTERS  AS  AGENTS  OF 

NECESSITY. 

By  the  civil  law  the  master  of  the  ship  had  power  to  impawn 
the  ship  and  tackle  in  case  of  necessity,  if  he  had  no  other  means 
to  provide  such  tilings  as  were  necessary  for  her ;  and,  ouiiy  iu 
the  seventeenth  century,  as  far  back  as  the  time  of  Ilohnrt,  the 
same  principle  was  declared  to  be  a  part  of  the  common  law  of 
England.^ 

In  another  old  case  ^  it  is  laid  down  that  if  the  master  of  a 
ship  contracts  for  the  necessary  repairs  thereof,  thi-  binds  the 
owner ;  although  in  that  case  tiie  master  was  not  obi'  to  npair 
it,  yet,  inasmuch  as  the  repairs  were  necessary  to  lie  sjiip 

from  foundering,  the  law  enables  him  to  bind  the  defendant  by 
his  contract. 

As  the  authority  which  the  master  possesses  is  pmely  one 
which  arises  from  the  necessities  of  the  case,  the  legality  of  his 
acts  in  any  particular  case  will  depend  upon  the  fact,  wlicthei' 
under  the  circumstances  such  necessity  existed.  If  it  did  exist 
his  authority  is  very  extensive.  Thus,  when  the  safety  of  the 
ship  requires  it,  he  can  jettison  the  deck-load  or  any  other  part  of 
the  cargo;  he  can  sell  the  cargo  or  any  necessary  part  of  it;  lie 
can  have  the  ship  repaired,  and  for  such  purpose  can  purchase 
such  materials  and  have  such  work  done  as  mav  be  necessarv ;  ho 
can  agree  as  to  the  terms  of  the  salvage  ^  of  the  ship  and  cargo. 


1  Brulgenwn's  Case,  Hob.  11. 

2  Manby  v.  Scott,  1  Siil.  109. 

8  III  the  case  of  Houseman  v.  The 
Schooner  North  Carolina,  15  Peters,  40, 
the  United  States  Supreme  Court  stated 
the  well-established  jn-inciples  governing 
the  rights  of  the  master  ;is  an  ngent  Oi 
necessity  iu  eases  of  salvage,  as  follows : 
"  We  have  no  doubt  that  there  may  be 
cases  in  which  the  contract  of  the  captain 
in  relation  to  the  amount  of  salvage  to  be 
paid  to  the  salvors,  or  his  agreement  to 


refer  the  question  to  arbitrators,  would 
bind  the  owners.  In  times  of  disiistir  it 
is  always  his  duty  to  cxccisi'  liis  l»jt 
judgment,  and  to  use  his  best  cxiitiiins 
for  the  benefit  of  th(!  owners  of  Imtli  ves- 
sel and  cargo ;  anil  when  from  his  sitiu- 
tion  he  is  unable  to  consult  thciii  or  tlii'ir 
agent  without  an  inconvenient  ami  inju- 
rious delay,  it  is  in  his  power  to  compro- 
mise a  question  of  .salvage,  and  ln'  is  not 
bound  in  all  cases  to  waii  for  the  (loi:isioii 
of  a  court  of  admiralty.    So,  too,  wiien 


[book  II. 


^vuT  IV.] 


SIIIPMASTKUS   AS   AnFNTS   OP   NECKSSITY. 


249 


NTS  OF 


o  impiiwii 
icr  nw.am 
i,  otu'ly  in 
oliart,  llio 
ou  law  of 

aster  of  a 

binds  tlie 

to  rrpair 

lie  sliip 

cndiuit  by 

luroly  one 

llity  of  his 

,  whctlicr 

did  exist 
ity  of  the 
icr  part  of 

of  it ;  he 

purchase 
Issary ;  lie 

,nd  cargo, 

liitors,  woulil 
])f  tlisiis'iT  it 
list'  lii:*  '"■*' 

[of  biitli  ves- 
111  his  sitiw- 
Ihoiii  i>r  thfir 
lit  and  iiiju- 
|r  to  cniiipro- 
,1  111'  is  not 
I  till'  ilecision 
too.  wlitn 


iiiid,  in  oxticnio  cases,  he  can  sell  and  pass  a  valid  title  to  tlio  prop- 
eitv  in  l>oth  ship  and  carjro.  The  principles  by  which  he  is  to  be 
(rovciiH'd  in  such  ea.soa  will  appear  by  the  authoritie".  wo  cite. 

Tin-  sale  of  a  ship  becomes  a  necessity  within  the  nieaninj^  of 
the  couuiii'feial  law,  when  nothing  better  can  be  doni*  for  the 
own  r  or  those  eoncerneil  in  the  adventure.  If  tht^  master,  on 
hi.s  I'.irt,  has  iin  honest  purpose  to  serve  those  who  are  interested 
iu  slii|)  and  carji^o,  ami  can  clearly  prove  that  the  condition  of  his 
vessel  n(|iiir('d  him  to  sell,  then  ho  is  justilied.  As  the  power  is 
lialile  to  aiuise,  it  must  l)e  exercised  in  the  most  perfect  j^ood 
faith,  and  it  is  the  duty  of  courts  and  juries  to  watch  with  great 
care  tlic  t'unduet  of  the  master.  In  order  to  justify  the  sale,  good 
faitli  in  making  it  and  the  necessity  for  it  must  both  concur,  and 
tilt'  piiichasi'r,  to  protect  his  title,  must  be  al)le  to  show  this  eon- 
cunvnce.  The  (piestion  is  not  whether  it  is  expedient  to  break 
up  a  voyage  and  sell  the  shi|>,  but  whether  there  was  a  legal  nc- 
Cfs.sity  to  do  it.  If  this  can  be  shown,  the  master  is  justilied; 
otherwise  not.  And  this  necessity  is  a  question  of  fact,  to  bo 
(iotriniined  in  each  (;aso  by  the  circumstances  in  which  the  mas- 
ter is  placed,  and  the  perils  to  which  thr  ]»roperty  is  exposed.  If 
the  muster  can  within  a  reasonable  time  consult  the  owners,  lie 
is  riMpiircil  to  do  it,  because  they  should  have  an  opportunity  to 
decide  wiii'ther,  in  their  judgment,  a  sale  is  necessary.  And  ho 
sliuidd  never  sell,  when  in  port  with  a  disabled  ship,  without  hrst 
calling  to  his  aid  disinterested  persons  of  skill  and  experience, 
who  are  competent  to  advise,  after  a  full  survey  of  the  vessel  and 
her  injuries,  whether  she  had  better  be  repaired  or  sold.  And 
altlidngh  his  authority  to  sell  does  not  depend  on  their  reeom- 
niciidation,  yet,  if  they  advise  a  sale,  and  he  acts  on  their  advice, 
he  is  in  a  condition  to  furnisli  the  court  or  jury  reviewing  the 
proceedings,  strong  evidence  in  justilication  of  his  conduct.^ 

These  principles  were  applied  in  the  case  of  The  Amelie. 
There,  when  the  voyage  began,  the  ship  was  seaworthy  and  well 
provided,  but  after  she  liad  been  at  sea  a  short  time  she  became 


the  sulv.ii,'!'  service  has  not  liccn  iinimr- 
taiit,  ami  the  coiiiin'iisatioii  cloiiiaiKkvl  is 
a  small  diu-,  jt  may  often  \h:  tlic  interest 
of  the  owiit'i'.s  that  the  aniomit  should  be 
si'ttli'cl  at  oiii'e  i)y  the  caiitaiii,  ami  the 
Vfssil  iHoci'ed  on  her  voyaj^e,  witliout  wait- 
iiij;  I'Viii  a  dav  for  the  jmrpose  of  consult- 
iii;,'  thciii.  But  in  all  such  cases,  unless 
tile  acts  (if  the  enptain  are  ratilieil  by  the 
owners,  his  roiiduet  will  be  care'fully 
wiitrlii-d  ami  senitinizedby  the  eourt,  and 
liisioiitijits  will  not  be"  regarded  as  bind- 
iii<;  niioii  the  jiarties  concerned  unless  they 
Rlipeur  to  have  been  bond  fide,  and  such 


as  .1  discreet  owner  placed  in  the  like  cir- 
cumstances would  |irobal)ly  have  made. 
If  he  settles  the  amount  by  agreement, 
those  who  claim  under  it  must  show  that 
the  salva<;e  allowed  was  reasonable  and 
just.  If  he  refers  it  to  arbitrators,  those 
who  claim  the  benefit  of  the  award  must 
show  that  the  jn'oceediiigs  were  fair  and 
the  referees  worthy  of  the  trust."  In 
this  case  the  acts  of  the  master  were  very 
strongly  comlenined,  and  set  aside  a.s  un- 
justifiable and  illegal. 

»  The  Ainclie,  6  Wall.  18. 


250 


COMMENTARIES   ON  SALES. 


[book  II. 


mi' 


■^liiiil';  ^il 


disabled  during  a  violeiil  storm,  and  with  great  difficulty  was 
taken  into  the  harbor  of  Port  au  Prince.  Tl  e  niastcr  at  once  en- 
tered his  protest  before  the  Dutch  consul-general  (the  ship  being 
owned  in  Amsterdam),  who  caused  three  surveys  to  be  made  of 
the  condition  of  the  vessel.  No  action  was  taken  on  the  first  sur- 
vey, but  the  result  of  the  second  was  the  incurring  of  an  expense 
of  SIOOO  in  portial  repairs,  decided  by  the  surveyors  to  bo  pi-acti- 
cuble,  who  recommended  the  partial  repairs  in  order  that  the  ship 
should  be  put  in  a  proper  condition  to  proceed  on  her  voyage  to 
Boston.  In  making  these  partial  repairs,  one  of  the  sides  of  tlie 
vessel  was  uncovered,  disclosing  additional  damages  of  a  serious 
character,  not  previously  ascertainable,  which  caused  the  consul- 
general  to  order  a  third  survey.  This  third  and  final  survey  was 
thorough  and  complete,  and  was  made  by  Lloyd's  agent,  the 
agent  of  the  New  York  underwriters,  and  three  masters  of  vessels, 
who  reported  fully  on  the  facts,  and  advised  that  the  vessel  should 
be  sold.  The  vessel  was  accordingly  sold  at  public  auction  for 
$407.  The  purchaser  took  possession,  repaired  her  at  a  cost  of 
#1695.31,  and  sent  her  to  Boston.  She  was  then  libelled  by  one 
Fitz,  a  cargo  owner,  part  of  whose  cargo  had  been  sold  by  the  mas- 
ter without  accounting  for  it.  The  vessel  was  sold  for  ;f'2138 ;  the 
purchaser  expended  |il43  for  additional  repairs,  took  off  her  cop- 
per, which  he  sold  for  -fllST,  and  sent  her  to  England,  where  she 
arrived  after  a  good  deal  of  bad  weather,  appearing  staunch  and 
strong.  Fitz  claimed  the  proceeds  of  the  sale.  The  District 
Court  dismissed  the  claim,  and  the  decree  was  affirmed  by  the 
Circuit  Court.  On  appeal  to  the  Supreme  Court,  the  decision  of 
the  courts  b«'!ow  was  sustained.  The  court  held  that,  after  the 
advice  given  in  their  report  by  the  surveyors,  than  whom  no  per- 
son could  bo  more  competent  to  advise,  or  from  the  nature  of 
their  employment  better  acquainted  with  the  structure  of  vessels 
and  the  cost  of  repairing  them,  the  master,  who  was  bound  to  look 
to  the  interest  of  all  parties  concerned  in  the  adventure,  had  no 
alternative  but  to  selL  In  the  fa3e  of  the  report,  had  he  prncoodcd 
to  repair  his  vessel,  he  would  have  been  culpable.  Being  in  a  dis- 
tant port  with  a  disabled  vessel,  seeking  a  solution  of  the  diHieul- 
ties  surrounding  him,  at  a  great  distance  from  his  owners,  with 
no  direct  means  of  communicating  with  them,  and  having  irood 
reason  to  believe  the  copper  of  his  vessel  was  displaced,  and  that 
worms  would  work  her  destruction,  his  most  proper  course  to  pur- 
sue was  to  obtain  the  advice  "  of  that  bodv  of  men  who,  Itv  tlie 
usage  of  trade,  have  been  immemorially  resorted  to  on  riuch  occa- 
sions." *  The  court  were  of  the  opinion  that  no  prudent  man, 
1  Gordon  v.  Mass.  Ina.  Co.,  2  Piuk.  264. 


PART  IV.]  SHIPMASTERS   AS   AGENTS   OP   NECESSITY. 

under  the  circumstances,  would  have  failed  to  follow  their  advice, 
and  the  state  of  things  as  proved  in  this  case  imposed  ^ji  the 
master  a  moral  necessity  to  sell  his  vessel  and  reship  his  cargo.^ 

ing  out  of  the  ultiiiiii'.e  oliject  "I'  tho 
whole  adveiituiv,  thiTu  iiiu>it  be  a  jiowtT 
ill  the  nuistt'i'  not  only  t.-  hyjiotheciitc  the 
ship,  but  the  ciiigo.  Tl.iit  jiowcr  of  the 
master  does  not  arise  oih'  ol  tl\e  bill  of 
liuling,  nor  out  of  the  eharti'r-iiaity,  be- 
cause it  may  exist  where  there  is  neither 
bill  of  lading  nor  ehartcr-jtarty.  It  arises 
out  of  the  eontraet  ol  r.iaritinio  carriage, 
by  the  shijisnent  of  grjds  on  boaril  a, ship 
lor  the  imrjiose  of  bci  ig  earrietl  from  ono 
country  to  another,  a  id  il  exists  the  mo- 
ment the  goods  are  ]>ut  on  board  for  Mich 
a  ptirjiose.  It  is  reguhilru,  and  often  lim- 
ited, by  terms  in  the  bill  of  hiding,  or  by 
terms  in  the  charter-party;  but  unless 
such  terms  speeilically  do  away  with  this 
authority  ol  the  master,  the  authority  of 
the  master  existi'  by  virtue  of  the  contract 
whicli  arises  between  tlii'  shijiowncr  and 
the  cargo-owner  by  the  shii'ment  of  the 
gutds.  It  is  not  necessary  to  decide 
whitlier  this  authority  is  given  to  the 
master  by  way  of  contract  or  by  means  of 
the  h.w."'  'J'lien,  again,  as  to  the  law  in 
the  nuittrr,  when  the  ship  is  an  Knglisu 
ship  :  "  Now,  if  thif.  ship  had  been  an 
Knglish  ship,  if  the  <'aptaiu  had  been  an 
Kngiish  master,  and  if  the  owners  of  the 
carg-i  had  been  Knglish  Siibjects,  t!;ere  is 
no  doult  that  the  master  would  have  liad 
no  authority  to  bind  the  owners  of  the 
cargo  unless  cerlain  necessities  had  arisen. 
The  ship  must  have  been  in  a  state  of  dis- 
tress, and  in  a  port  of  distress  where  the 
owner  of  her  iiad  no  means  or  credit  by 
vvliieh  to  find  the  money  reipiired  for 
doing  the  necessary  rejiairs  ;  and  bi  sides 
this,  in  oilier  to  re(|iiire  the  hypothecation 
by  bottomry  of  the  cargo,  the  value  of  the 
siiip  must  not  of  itscll  be  large  enough. 
Jlorcover,  il  this  had  been  an  English 
ship  and  an  Knglsh  raiitain,  even  th.)Ugh 
all  these  necessities  l.ad  existed,  yet  tho 
nii'ster  would  not  be  authorized  to  cliargo 
the  cargo  il  before  dning  so  he  had  tho 
mciiiij  of  conimuiiicatiu"  i'h  the  owner 
of  the  cargo  within  a  reas  liable  time,  so 
that  on  receiving  notic''  li  e  owner  of  tho 
cargo  mighi;  iliter!!;'ni  >i '."iher  he  woiilil 
allow  the  cargo  to  ; "  iiottoniried,  or 
whether  he  would  take  other  means  for 
the  ilis|K).sal  of  the  cargo."  The  (Jaetano 
and  Maria.  1..  H.  5  I'r.  Piv.  at  )..  143. 
See  Tlie  Haniburgli,  Br.  &  Lush.  2i>'i:  The 
(iratitudine,  :3  R  )b.  Ailm.  24(1;  The 
Buonaparte,  8  Moo,  1'.  t".  4[>9  •  1,1. ivd  i'. 
(iuibert,  L.  1!.  1  i).  B.  ll.'i;  The  Ka'rnak, 
]..  H.  2  I'.  V.  .003;  Khimoort  v.  The 
Uassa  .Marittiinn,  C  App.  Cas.  ITjO. 

The  piiueii'les  relali"-^  to  the  right  of 


1  The  court  continued :  "  I5i,t  it  is 
said,  llie  fact  that  the  vessel  was  repaired 
by  tlie  purchaser  and  sent  to  Boston  liis- 
piovis  this  necessity.  Not  so.  It  uuiy 
teiul  111  prove  that  the  surveyors  'vere  tnis- 
takiMi.  but  dues  not  alfect  the  ipiestioii  of 
the  'iiity  of  the  master  to  follow  their 
aiiviuc,  when  given  in  such  strong  terms, 
anil  with  no  evidence  before  him  that  it 
was  ciiuiicous.  but,  in  fact,  tho  surveyors 
dill  not  err  in  their  conclusion  that  the 
ve.ss<'l  was  not  worth  the  cost  of  repairs, 
as  till'  .;:Mouiit  in  the  registry  of  the  court 
for  wliiili  the  vessel  was  sold  in  Boston 
will  lull  to  reimburse  the  claimant  the 
inoiie.y  ex|ienileil  by  him  in  purchasing 
and  rijiairing  her."  The  Amelia,  6  Wall, 
at  ]>.  211.  See  The  (Jla.sgow,  1  Swabey, 
150;  The  Australia,  lb.  484;  The  Mur- 
gttivt  Mitchell,  Jh.  a82. 

Ill  dealing  wiih  the  power  of  the  mas- 
ter ol  a  ship  to  bind  the  car")  for  neces- 
saries, ill  The  Gaelani)  and  Jlaria,  L.  R.  7 
Pr.  l»iv.  137,  145,  Brett,  L.  J.,  said  : 
"  1  doiiht  myself  (b'l.t  it  is  not  necessary 
ti)  ili'iiilc  it  in  this  case)  whether  the  mas- 
ter is  ever  the  agent  of  the  owner  of  the 
car^'o.  The  master  is  the  agent  of  the 
owner  of  the  ship,  and  it  may  be  that  the 
niiiMti'i',  as  agent  of  the  owner  of  the  ship, 
has  certain  riglus  with  regard  to  the  cargo. 
But  siiiipose  that  the  master  can  be,  under 
circiiiiistances  of  necessity,  the  agent  of 
the  owner  of  the  cnrgo,  out  of  what  does 
the  authority  of  the  master  arise  ?  Now, 
this  aiitliority  of  the  master  of  the  siiip  to 
hypDtlit'cate  the  sliip  or  cargo  is  pvculiar. 
Uitois  not  arise  merely  out  of  a  contract 
of  hailniint,  for  that  contract  gives  no 
suoli  right.  It  does  not  arise  even  out  of 
a  I  oiitiiiit  of  c.irriage  on  land.  I  doubt 
wlii'ther  it  arises  on  a  contract  of  sea  car- 
liaf.;.-,  where  it  is  all  within  tiie  realm;  but 
it  is  not  necessary  that  this  .should  be 
now  ilt'i'ided.  It  does  arise  where  goods 
arc  sliiiiiied  on  board  a  ship  to  Ik.'  carried 
fimii  one  country  to  another.  That  is  ac- 
kiiowliilged  by  the  niaritinie  l.iw  of  Kng- 
laiid,  and,  ns  far  as  I  know,  is  eipially 
aikiiowliilged  in  e\ery  maritime  country. 
It  tirisn;  from  the  ncassilij  »:'  Ihiiiija  ;  it 
arises  Iroiii  the  chliiratioii  if  the  ship- 
fiwiier  aiiil  (he  master  to  carry  the  goods 
from  line  country  to  another,  and  from  it 
heing  inevitable  from  the  nature  of  things 
tliai  the  sliip  and  cargo  may;  at  some  time 
orotlir,  he  in  a  strange  jKirf,  where  the 
laptai  I  may  be  without  inean.s,  and  where 


the 


s  lipowner  may  have    no   credit,    l)e- 


^aiisi  he  is  not  known  there  ;  that,  for  the 
safety  of  ull  concerned  and  for  the  carry- 


252 


COMMENTARIES  ON   SALES. 


[book  II. 


The  Lizzie  sailed  from  Minatitlan,  January,  1866,  with  a  cargo 
of  mahogany  and  cedar,  for  the  United  Kingdom.    Having  suf. 


the  shipmaster  to  sell  the  ship  and  her 
apparel  are  considered  by  the  United 
States  Supreme  Court  in  The  New  Eufr- 
land  Insurance  Co.  v.  The  Sarah  Ann,  13 
Peters,  387.  As  the  whole  question  is 
considered  by  the  court  in  their  inquiry 
as  to  what  is  the  rif;ht  of  the  master  to 
sell  a  ship  in  the  event  of  an  admitted 
stranding,  we  quote  fully  from  tlieir  judg- 
ment, in  whidi  they  say  :  "  This  involves 
tiie  necessity  for  a  sale,  in  the  circum- 
stances under  which  it  is  done,  to  make  it 
justifial)le  in  tlie  master,  or  otherwise. 
All  will  agree  that  the  master  must  act  in 
good  faith,  exercise  his  best  discretion  for 
the  benefit  of  all  concerned,  and  that  it 
can  only  be  done  upon  the  compulsion  of 
a  necessity,  to  be  determined  in  each 
case  by  the  actual  and  impending  peril 
to  which  the  vessel  is  exposeii  ;  from 
which  it  is  jtrobable,  in  the  opinion  of 
persons  competent  to  judge,  that  the  ves- 
sel cannot  be  saved.  This  is,  as  it  is  de- 
cided in  some  of  the  English  courts,  an 
extreme  necessity.  The  master  nui.st  have 
the  best  information  which  can  be  got, 
and  must  act  with  the  most  pure  good 
faith.  So  says  Lord  Ellenborough,  in 
Hayman  v.  J'olton,  5  Esp.  65. 

"  xt  is  also  properly  termed  a  moral 
necessitj',  becai.se  when  the  peril  and  in- 
formation concui,  as  we  have  just  stated, 
it  then  becoini'<;  an  '  urgent  duty  upon 
the  master  to  sell  for  the  preservation  of 
the  interest  of  all  concerned.'  It  should 
not  be  termed  a  legal  necessity,  as  it  is  in 
the  argument  of  the  counsel  for  the  liliel- 
lants;  for  though  the  necessity,  informa- 
tion, and  gooil  laitli  of  the  master  will 
make  the  sale  legal,  the  term  '  legal '  is  not 
descriptive  of  tlie  prerequisite  upon  which 
the  master's  right  to  sell  depends.  Nor 
can  the  necessity  for  a  sale  be  denied 
when  the  peril,  in  the  opinions  of  those 
capable  of  forming  a  judgment,  makes  a 
lo.ss  probable  ;  thoiigli  the  vessel  may,  in 
a  short  time  afterwards,  be  got  oil"  and 
put  alloat.  It  is  true,  the  o])inion  or 
judgment  of  competent  jiersons  may  be 
falsified  by  the  event,  and  tliat  their  jmlg- 
ment  may  be  shown  to  have  been  errone- 
ous by  the  better  knowledge  r','  other 
persons,  showing  it  was  probalile  the  ves- 
sel coulil  have  b.'en  extri  Mted  from  her 
peril,  without  great  injury,  or  incurring 
great  expense  ;  and  the  master's  incom- 
petency to  form  a  judgment  or  to  act  with 
a  proper  disrretion  in  the  case,  may  bo 
shown.  Hut  from  the  mere  fact  of  the 
vessel  having  been  extricated  from  her 
peril,  no  presumption  can  be  raised  of  the 
master's  incompetency,  or  that  of  his  ad- 


visers. It  is  right,  also,  to  test  the  pnril 
in  which  the  vessel  may  be,  by  infoiination 
of  the  Ircality  v. here  she  is  stranded,  by 
the  season  of  the  year,  and  by  a  conqiari- 
son  of  the  number  of  vessels  lost  or  saved 
which  have  been  driven  on  the  .same  lieaeh 
or  shoal.  But  in  doing  so,  tlioii;;h  it 
shall  be  found  that  a  larger  number  of 
ves.sels  stranded  have  been  got  ofi'  tlian 
were  lost  on  the  same  beach,  it  is  very 
diliicult,  in  a  case  of  stranding  iiium  a 
shifting  beach  of  sand,  with  the  wind 
blowing  hard  on  shore,  and  in  a  month 
when  the  Ainh  are  usually  strong  (uid 
stormy,  to  disprove  the  necessity  lor  tlie 
master  to  sell  by  what  raiiv  have  hapiienwl 
in  other  ca.ses.  The  evidence  taki'ii  in 
this  case  establishes  that  five  to  one  nf  the 
vessels  stranded  where  the  Sarah  Aim  was 
driven  on  tiie  beach  have  been  altogether 
lost.  The  evidence  in  such  a  case,  and 
under  such  proof  of  the  loss  of  vessels 
there,  must  be  ve.y  strong  before  it  can 
prevail  to  show  that  there  was  no  necessity 
for  tiie  master  to  .sell.  It  must  also  lie 
proved,  in  a  particular  case  given,  that 
the  means  in  the  master's  power,  or  which 
he  may  command  from  tliose  to  gcft  his 
vessel  off,  had  not  been  applied,  and  thiit 
there  would  have  been  wliat  we  shall 
call,  and  what  ought  to  be  so  estecinid,  a 
controlling  difference  between  the  value  of 
the  vessel,  as  her  condition  may  be  when 
she  is  sold,  and  the  expense  to  be  iiicniwd 
in  getting  her  off.  Nor  will  any  asccr- 
taiiiiiu'nt  of  the  cost  of  repairs,  subsi'i,.i(nt 
to  the  extrication  of  the  vessel,  raise  a 
presumption  against  the  necessity  to  sell, 
wh.itever  may  be  her  condition  as  to 
strength,  and  though  she  may  not  lu'  in- 
jured in  the  hull,  if  the  actual  and  nn- 
mediate  prospective  danger  menaces  a 
)irobable  total  loss.  We  tliink  such  was 
the  Sarah  Ann's  danger.  The  court, 
then,  having  stated  its  opinion  as  to  what 
makes  an  extreme  necessity,  it  lollows 
that  it  cannot  be  laid  down  as  a  universal 
rule,  that  the  master's  power  to  sill  is 
limited  to  cases  of  extreme  necessitv  in  a 
foreign  port,  or  in  a  port  of  the  I'nited 
States  of  a  different  State  than  lli;  t  to 
which  the  vessel  Mongs,  or  in  whieh  her 
owners  may  bo  or  reside  when  the  necessity 
occurs. 

"  The  true  criterion  for  detorminin2  thi- 
occurrence  of  the  master's  autlmiiiy  to 
sell,  is  the  inquiry  whether  the  owners  or 
insurers,  when  they  are  not  distnnt  from 
the  sceiu!  of  stranding,  can,  by  the  laili- 
est  use  of  the  ordinary  means  to  ((invey 
intelligence,  bo  informed  of  the  sitnation 
of  tlie  vessel  in  time  to  direct  the  master 


tt'( 
value  of 
be  when 
inclined 


raise  a 
y  to  sell, 
oil  as  t(i 
ot  be  ill- 
ami  nil- 
liaees  a 
such  was 
eoiirt, 
to  wliat 
I'iiIIdws 
universal 

)   Sfll    is 

ssitv  ill  a 
I'liited 
ii  111.  !  to 
liiili  lier 
nei'e>>ity 


PART  IV.]  SHIPMASTERS   AS   AGENTS   OP   NECESSITY. 


253 


fered  sea  damage,  she  put  into  Key  West,  Feb.  27,  and  tliere  prop' 
crly  underwent  some  necessary  repairs  which  detained  her  until 
May  21.  The  master,  not  being  able  to  raise  money  on  personal 
security  to  defray  the  expenses  of  the  repairs,  gave  a  bottomry 
bond,  dated  May  19,  on  the  ship,  freight,  and  cargo.  The  mas- 
ter, before  hypothecating,  did  not  communicate  with  the  owner 
or  consignees  of  the  cargo  by  reason  of  the  groat  delay  and  un- 
certainty in  the  transmission  of  letters  from  Key  West  at  that 
time.  The  vessel  sailed  on  May  21,  and  arrived  at  her  port  of 
destination  on  July  2.  A  suit  having  been  instituted  against 
the  vessel  for  freight  and  cargo  by  the  holders  of  the  bottomry 
bond,  tlie  validity  of  which  was  contested  by  the  consignees  of 
the  cargo,  it  was  held  that,  under  the  circumstances,  the  master 
was  not  bound  to  communicate  with  the  consignees  before  hypoth- 
ecating, and  that,  therefore,  the  bond  was  binding  on  the  cargo.* 


befmeslie  will  probably  be  lost.  If  there 
is  ii  i)iolialiility  of  loss,  and  it  is  made 
more  liazanloiis  by  every  day's  delay,  the 
master  may  then  aet  promptly,  to  save 
somethiiif;  lor  the  beiietit  of  all  concerned, 
tlioiifili  but  little  may  be  saved.  There  is 
uo  way  of  iloiiij;  so  more  efleetual  than  by 
ex|w.siiif,'  the  vessel  for  sale  ;  by  which  the 
eiiterjirise  of  such  men  is  broiif^ht  into 
comiMtitimi  as  are  aeenstoined  to  encoun- 
ter siuli  risks,  and  who  know  from  expe- 
rience how  to  estimate  the  jirobable 
]irolits  and  losses  of  such  adventures. 
And  we  hero  sny  that  the  power  of  the 
m;ister  to  sell  the  hull  of  his  stranded 
vessel  exists  also  as  to  her  ri^f;ing  an<l 
sails,  which  he  may  have  stripjied  from 
her,  after  unsuccessful  elForts  to  get  her 
atloat  ;  or  when  his  vessel,  in  his  own 
jiidiiiiicnt  and  that  of  others  competent 
to  liirni  ail  opinion  and  t-;  advise,  cannot 
be  didivered  from  hi  ■  peril.  The  pre- 
suniiitioii  is  that  th  y  are  injured;  they 
can  never  a!,'aiii  be  api  lied  to  the  use  of 
the  vessid,  and  they  must  onlinarily  be- 
come, Hdiii  day  to  day,  of  less  value.  In 
fai't,  they  'Mv.  a  iiart  ol'  the  vessel  when 
stri|i|ii'il  Iroiii  her,  and  the  mere  fact  of 
se|iaiatioii  by  the  vif^ilauce  and  ed'orts  of 
the  master,  by  which  they  are  saved  I'roin 
the  ocean,  does  ri()t  lake  them  out  of  his 
implied  ]i(iwer  to  sell  in  a  case  of  ne- 
cessity. The  nei-essity  does  not,  as  has 
heeii  supposed,  mean  that  no  ]iart  of  her 
ta'kle,  apparel,  or  furniture  saved  shall  be 
sold,  ticcatise  they  are  no  lop^^er  liable  to 
loss ;  but  when  they  are  saved,  whether  a 
Sound  discretion  does  not  reipure  them  to 
be  sold  lor  the  benefit  of  all  concerned. 

"  If,  Iniwever,  the  master  sells  without 
Sood  fiitli,  or  without  n  -sound  discretion, 
the  owners  may,  against  the  purchaser, 
»Mert  their  right  of  property  iu  the  sails 


and  ri,t;f,'ing  ;  as  they  mav,  in  any  case  of  a 
stianded  vessel,  whii  b  has  been  sold  with- 
out good  faith  in  the  master,  with  her 
sails  and  riirgiiig  standing.  We  do  not 
think  the  case  of  Scull  v.  Biiddle,  2 
Wash.  C.  C  Hep.  15(1,  notwithstanding 
our  res])ect  for  the  memory  of  the  eminent 
judge  who  made  it,  sound  law.  It  is  e.\- 
juessed  in  terms  too  broad.  The  mis- 
chievous consequences  aiiprehended  may 
1)0  contndlod  in  each  ease  by  such  ]U'oof  as 
we  are  obliged  to  depend  upon  to  maintain 
and  secure  from  abuse  other  iiitorosts, 
equally  imitortant  to  society  in  general 
as  Id  individiiils  eiigagccl  in  some  par- 
ticular |iursuit,  ^\'l•  tliiiik  the  interest 
of  owners  of  ve:is<  .  "i  imnc-;  of  a  sale  by 
the  master,  wlieii  p.iSM-d  to  make  it  by 
necessity  arising  fioi  i  the  perils  of  the 
sea,  is  amply  prote  ted  ;  and  ti.at  the 
power  of  the  mist' r  to  sell  i-  secured 
from  abuse  by  the  limitations  jdaced  upon 
the  ex('rcise  of  it,  and  by  the  obligation  of 
the  ))ui'chaser  at  the  sale  to  maintain  his 
ownership  against  the  claim  of  the  origi- 
nal owner,  by  showing  that  the  necessity 
for  a  sale  hail  arisen  ;  that  it  was  made  iu 
the  go  >d  faith  and  sound  discietion  of  the 
master.  This  certainly,  in  the  case  of  such 
sales  at  home,  gives  to  the  owners  of  a 
stranded  vessel  a  stronger  guard  against 
imposition  and  fraud,  tliaii  they  can  have 
in  sales  made  in  a  foreign  port  ;  and 
serves  to  support  the  correctness  of  the 
o])inion  that  the  mastci's  power  to  sell  is 
not  confined  to  a  foreign  port,  or  to  a 
stranding  in  another  Stiite.  This  doctrine 
holds  out  no  encouragement  to  the  master 
to  sell  I  it  gives  liim  no  facility  to  sell, 
when  it  is  not  authoii/ed  by  necessity 
clearly  made  out,  and  exercised  with  good 
faith  and  sound  di.scretion." 

1  The  Lizzie,  L.  U.  2  Ad.  &  £c.  254. 


! 


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ii 


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Mill 


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J. 


Ill  ' 


r.l 


till 


i  ■       s 

'•ill 


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II 
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1; 


254 


COMMENTARIES  ON   SALES. 


[book  II. 


The  following  principles  were  acted  on  in  the  case  of  The  Kar- 
nak :  ^  1.  That  it  is  the  duty  of  the  master  before  resorting  to  bot- 
tomry, to  communicate  or  to  endeavor  to  communicate  witii  the 
owners  of  the  cargo  as  well  as  with  the  owners  of  the  ship,  if,  in  the 
circumstances,  it  be  feasible.  2.  Where  a  master  fails  to  obtain 
funds  from  the  owner  to  pay  for  repairs  which  the  necessities  of 
the  ship  compel  him  to  order,  he  is  warranted  in  raising  money 
on  bottomry  of  ship,  freight,  and  cargo  for  that  purpose  from  per- 
sons other  than  those  who  had  supplied  such  repairs.  3.  In  tlic 
case  of  a  bottomry  bond  for  money  already  supplied  without  any 
previous  agreement,  it  is  to  be  presumed,  in  the  a'  jcnce  of  all  evi- 
dence, that  the  foreign  lender  made  his  advances  in  contemplation 
of  bottomry  security,  and  this  presumption  is  increased  where  the 
lex  loci  empowers  the  lender  to  arrest  the  ship  in  satisfaction  of 
his  demand.  4.  The  question  whether  money  advanced  is  to  be 
considered  a  loan  or  an  advance  of  freight,  must  principally  de- 
pend upon  what  appears  upon  the  face  of  the  instrument.^ 


PA 


age 


In  delivering  the  judgment  in  this  case 
Sir  Robert  rhilliiiiore  said  :  "  Now  the 
principles  of  law  wliich  I  must  apply  to 
this  case  are  those  lai<l  down  by  the  lords 
of  the  Privy  Council  in  The  Buonnparte, 
8  Moo,  P.  C.  4.')9,  and  The  Hamburg, 
Brow.  &  Lush.  253.  There  is  no  doubt 
that,  according  to  the  authority  of  these 
cases,  as  well  as  that  of  the  Gratitudine, 
which  they  followed,  the  character  of  agent 
for  the  owners  of  the  cargo  is  imposed  upon 
the  master  by  tlve  necessity  of  Uic  case,  and 
by  that  alone.  And  by  the  two  foruier 
cases  it  is  now  established  as  a  necessary 
conseiiuenre  of  that  proposition  that  the 
master,  before  he  hypothecates  tlie  cargo, 
ouglit,  if  he  have  ac(;ording  to  reasonable 
intendment  the  means  of  doing  so,  to 
communicate  with  the  owner."  Two  rea- 
sons for  this  are  suggested,  namely,  to 
give  the  owner  the  oiiportunity  of  ad- 
vancing the  necessary  fuids  or  of  unload- 
ing the  cargo  aUogeth/r;  and  then  Sir 
Robert  Piiillimore  proceeds  :  "  If  tlii're  be 
no  opportunity  for  the  owners  to  express 
their  will  as  to  either  of  these  two  grounds 
with  respect  to  their  cargo,  tiie  master, 
w/iu  is  the  agent  of  necessity,  and  not  of 
their  choice,  has  no  right  to  deprive  them 
of  this  opportunity,  and,  therefore,  must 
communicate  with  tliem  ii  it  be  reasonaltly 
within  ids  power  to  do  so."  The  liiz<;ie, 
L.  it.  2  Ad.  &  Kc.  at  p.  2iiS.  In  the  case 
of  The  Hamburg,  Brow.  &  Lush,  at  p.  274, 
the  court  said  :  "  Where  the  cargo  belongs 
to  a  single  individual  known  tu  the  mas- 
ter ;  the  ship  in  a  port  in  the  same  coun- 
try or  near  to  it  in  which  that  owner  is 
resident ;   the  means  of  communication 


sure  and  speedy  ;  the  probable  delay  in- 
considerable ;  the  cargo  not  of  a  perishable 
kind  ;  the  money  to  be  borroweii  so  large 
as  to  be  sure  to  bring  it  within  the  ojiera- 
tion  of  the  bond,  it  coulil  not  be  conteiidi'il 
that  tiie  master  could  properly  hypotlie- 
cate  it  for  the  repairs  of  the  vessel  with- 
out first  communicating  with  the  owner. 
Eipially  clear  it  is  that  where  all  tliese 
circumstances  were  reversed,  no  sueli  duty 
would  be  incumbent  on  him.  ,  .  .  What 
is  in  eifect  the  practical  conclusion  hut 
that  the  question  whetiier  a  master  must 
communicate  or  not  is  one  which  ciui  only 
be  decided  .rj  the  circumstances  lu  each 
particular  ca.se." 

»  L.  R.  2  Ad.  &  Kc.  289. 

'  In  this  case  -Sir  Robert  Phillimore,  -n 
fully  discussing  the  nature  and  extent  of 
the  ])ower  of  the  shipmaster  to  luiiii  the 
siiip  and  cargo  by  his  contracts  for  neces- 
saries, says.  "This  power  of  the  miist.T 
arises  out  of  his  relation  as  agent  Imth 
to  tiie  owner  of  the  ship  and  to  the  owu'T 
of  the  cargo.  A  material  distinetinn,  in- 
deed, exists  between  his  authority  ii<  nijent 
for  the  one  and  as  agent  for  the  other; 
but  in  both  cases  his  power  to  iiypntli'- 
cate,  like  his  power  to  sell,  arises  out  "i 
the  necessity  of  tlu;  case."  Tlie  eiinliual 
principle  is  that  "  necessity  is  tlie  loumi..- 
tion  ot'  the  master's  authority  in  tiie  mat- 
ter." Tlie  Kariiak,  L.  K.  2  Ad.  &  Ke.  JSa, 
299.  Lord  Stowell  says:  "  Necessity  creates 
the  law.  Jt  supersedes  the  rules,  .nnd  what- 
ever is  reasonatile  and  just  in  such  casc'*  is 
likewise  legal.  '  The  Alexander,  1  I>ihI- 
son,  278.  In  Beldon  v.  Campbell,  fi  Kxch. 
886,  Parke,  B.,  said  :  "The  master  is  ap- 


kkf 


PART  IV.]  SHIPMASTERS   AS   AGENTS   OF  NECESSITY. 


255 


A  vessel  being  in  distress  at  Cuba,  the  master  applied  to  B.'s 
agents  there  for  an  advance  of  money  for  necessary  repairs.  The 
agents,  after  telegraphing  to  B.,  who  resided  at  Liverpool,  received 
B.'s  authority  to  make  the  advance  on  bottomry  of  the  vessel,  and 
this  was  done.  B.  was  second  mortgagee  of  ^'ic  vessel,  and  knew 
at  tlie  time  he  authorized  the  advance  that  the  owner  was  insol- 
vent, and  that  he  and  the  first  mortgagee  both  re  idcd  in  Liver- 
pool ;  but  before  authorizing  the  advance,  he  did  not,  nor  did  the 


pointed  for  the  purpose  of  conducting  the 
iiavig.'.tion  of  the  sliip  to  a  favorable  ter- 
mination, and  he  has,  as  incident  to  that 
eni|iloymcn',  a  right  to  bind  his  owner  for 
all  tliiit  is  I'ecossary,  —  that  is,  upon  the 
legal  maxim,  'quundo  aliqnid  mandatur, 
mnndatur  ft  oinnc  per  quod  pcrvciiitur  ad 
illud.'  Coiise(inently  the  master  has  per- 
feet  authority  to  bind  liis  principal,  the 
owner,  as  to  all  the  repairs  necessary  for 
the  purpose  of  bringing  the  ship  to  its 
port  of  destination ;  and  he  has  also  power, 
as  ineiiliMitiil  to  his  appointment,  to  bor- 
row money,  but  only  in  cases  where  ready 
money  is  necessary,  that  is  to  say,  where 
certain  payments  must  he  made  in  the 
course  of  tiie  voyage,  and  for  which  ready 
money  is  reijuired.  An  instance  of  this  is 
the  payment  of  port  dues,  which  are  re- 
quired to  be  paid  in  cash,  or  lights,  or  any 
other  dues  which  require  immediate  cash 
payments.  So,  also,  vhere  a  ship  being 
at  the  terniiniition  of  one  voyage,  and 
alwut  to  proceed  on  another,  money  bor- 
rowed to  pay  the  wages  of  seamen,  who 
would  not  go  on  the  second  voyage  with- 
out being  paid,  was  considered  necessary. 
Robinson  v.  Lyall,  7  Price,  592.  But 
these  instances  do  not  apply  where  the 
owner  of  tiie  vessel  is  living  so  near  the 
spot  as  to  be  conveniently  communicated 
with.  In  that  case  before  the  master  lias 
any  right  to  make  the  owner  a  debtor  to  a 
third  person  he  must  consult  him,  and 
see  whetlier  Iin  is  willing  to  be  made  a 
debtor,  or  wiiether  h"  ".'ill  refuse  to  pay 
the  money." 

In  the  ease  of  The  Karnak,  L.  R.  2  Ad. 
&  Kc.  2S!»,  30!),  Sir  Robert  I'hillimore,  in 
referring  to  his  decision  in  The  l,izzie,  L. 
R.  2  Ad.  &  Kc.  254,  .says  :  "  In  the  retjent 
case  of  The  Lizzie  I  stated  at  length  my 
view  of  tlie  law  which  has  l>een  laiil  down 
witii  respect  to  tiie  duty  of  the  master  to 
communicate  with  the  owner  of  the  cargo 
before  he  hypothecates  it.  That  duty 
arises  from  the  peculiar  character  of  his 
relation  as  agent  for  the  shipjwr,  a  rela- 
lion  freed  upon  him  for  the  nonce  by  a 
tnijinmrtj  nere/t/tih/,  and  therefore  different 
from  his  original  and  abiding  relation  as 
s^ont  for  the  owner  of  the  ship.  It  must 
be  o'.)scrved,  however,  that  the  law  docs 


not  say  that  the  necessity  of  communicat- 
ing with  the  owner  of  tlie  cargo  is  ditler- 
ent  in  kind  from  the  necessity  of  commu- 
nicating with  the  owner  of  the  ship  ;  but 
there  mu.st  be  a  separate  communication, 
if  in  the  circumstances  it  be  feasible,  with 
both.  Keferring  to  my  judgment  in  The 
Lizzie,  it  is  only  necessary  to  state  here 
that  it  is,  generally  s])eaking,  the  duty  of 
the  master  to  conmiunicate  with  the  owner 
of  the  cargo.  The  law  looks  with  .jealousy 
upon  the  exercise  of  authority  by  the  mas- 
ter over  the  cargo."  Lord  Stowell,  speak- 
ing of  the  master's  aiithority  with  respect 
to  the  cargo  (The  Gratitudine,  3  C  Kob. 
at  p.  261),  observes  :  "  It  is  the  same  con- 
sideration which  founds  the  rule  of  law 
that  applies  to  the  hypothecation  of  a 
ship.  In  all  cases  it  is  the  prospect  ot 
benefit  to  the  proprietor  that  is  the  foun- 
dation of  the  authority  of  the  master.  It 
is  therefore  true  that  if  the  repairs  of  the 
ship  produce  no  benefit  or  prospect  of 
benefit  to  the  cargo,  the  master  cannot 
bind  the  cargo  for  such  repairs ;  but  it 
appears  to  me  that  tiie  fallacy  of  the  argu- 
ment that  the  master  cannot  bind  the 
cargo  for  the  repairs  of  the  ship  lies  in 
supposing  that  whatever  is  done  for  the 
repairs  of  the  ship  is  in  no  degree  and 
under  no  circumstances  done  for  the  lien- 
efit,  or  witii  a  jirospect  of  a  benefit,  to  the 
cargo  ;  whereas  the  fact  is  that,  though 
the  prospect  of  benefit  may  be  more  direct 
and  more  immediate  to  the  ship,  it  may 
still  be  for  the  preservation  and  convey- 
ance of  the  cargo,  and  is  ju.stly  considered 
as  done  for  the  common  benefit  of  both 
ship  and  cargo."  .See  The  Hebe,  2  W. 
Hob.  14ti  ;  The  Piince  George,  i  Moo.  P. 
C.  '..I  ;  The  North  Star,  Lush.  45  ;  The 
Kdmond,  Lush.  57  ;  The  Ht-r.sev,  3  Moo. 
P.  C.  7i»  ;  The  Ariadne,  1  W.  Kob.  411  ; 
The  Osmanli,  3  W.  Hob.  198  ;  Heldon  v. 
Campbell,  6  Kx.  86  ;  The  Gosfabrick, 
Swat).  344  ;  The  Aurora,  1  Wheat.  96  ; 
The  Laurel,  Br.  k  Lush.  191;  The  Alex- 
ander,  1  Dod.  278  ;  The  Vibilia,  1  W. 
Rob.  1  ;  The  Prince  George,  4  Moo. 
P.  C.  21;  Robin.son  v.  Lyall,  7  Price, 
592;  The  Augusta,  1  l)od.  283;  Tiie  Zo- 
diac, 1  Hagg.  320;  The  Lochiel,  2  W. 
liob.  31. 


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256 


COMMENTARIES  ON   SALES. 


[book  II. 


A.v^',n': 


J  ■< 


&;.     . 


i;!'-^l! 


master,  communicate  with  either  of  these.  The  first  mortgairee 
contested  the  validity  of  the  bond.  It  was  held  that  the  bond  was 
invalid,  for  that,  under  the  particular  circumstances  of  the  case,  I], 
ought  to  have  communicated  with  the  owner  before  authorizinir 
his  agents  to  enter  into  the  bond.^  In  this  case,  it  was  found  that 
all  the  charges  were  quite  proper;  that  the  bottomry  premium  was 
not  excessive ;  that  there  were  none  of  the  items  which  could 
have  been  stricken  out ;  and  that  the  recourse  to  a  bottonuy  bond 
appeared  to  have  been  a  matter  of  necessity ;  but,  altliougli  tlie 
owner  was  insolvent,  as  he  miglit  have  thought  it  expedient. 
had  he  boon  communicated  with  before  the  bond  was  onicicd 
into,  to  have  endeavored  to  raise  money,  either  through  his  cred- 
itors, or  from  the  first  mortgagee,  or  from  some  other  source; 
in  absence  of  such  communication,  the  bond  was  pronuunced 
invalid. 

The  same  doctrine  was  held  in  The  Onward.^  There  an  Amer- 
ican vessel  laden  with  a  cargo  of  timber,  in  the  prosecution  of 
a  voyage  from  Moulmein  to  Queenstown  for  orders,  sustained 
damage,  and  was  compelled  to  put  into  the  Mauritius  to  repair 
and  refit.  She  arrived  there  on  June  11, 1870,  and  her  master, 
being  without  fimds,  placed  the  ship  in  the  hands  of  U.  it  Co., 
a  firm  at  the  Mauritius,  and  they,  before  any  attempt  had  been 
made  to  obtain  money  on  the  personal  credit  of  the  owners  of  the 
ship,  who  were  allluent  merchants  in  New  York,  proposed  to  ad- 
vance money  for  the  repairs  on  the  master's  draft  on  London,  on 
liis  giving  a  bottomry  bond  on  the  ship,  freight,  and  cargo,  as  col- 
lateral security.  The  master  and  H.  &  Co.,  on  July  10,  wrote 
to  the  owners  of  the  ship,  informing  them  of  this  proposal, 
and  on  the  same  day,  the  master  and  H.  &  Co.  wrote  to  the  own- 
ers of  the  cargo,  informing  them  that  the  vessel  had  sustained 
damage,  and  would  have  to  undergo  repair ;  but  the  letters  to  the 
owners  of  the  cargo  omitted  all  reference  to  the  pro|)oscd  loan  on 
bottomry,  and  informed  the  owners  of  the  cargo  that  they 
should  hear  further  particulars  by  the  next  o|)portuuity.  The 
letters  written  by  the  master  and  H.  &  Co.  to  the  owners  of  the 
ship  were  forwarded  by  the  owners  of  the  ship  to  the  owners 
of  the  cargo;  but  the  owners  of  the  cargo  did  not  receive  liiese 
letters  till  Sept.  8,  when  it  was  too  late  for  them  to  loni- 
municatc  with  the  master  by  post.  On  Oct.  13,  after  tlie  re- 
pairs had  been  completed,  the  master  gave  bills  and  executed 
a  bottomry  bond  on  the  ship,  freight,  and  cargo,  accordinir  to 
the  terms  of  the  proposal  made  by  H.  &  Co.,  which  had  long 


»  The  Pannma,  L.  B.  2  Ad.  &  Er.  390. 


«  L.  R.  4  ^l  &  Ec.  33. 


PART  IV.]  SHIPMASTERS   AS   AGENTS  OP  NECESSITY. 


257 


before  been  assented  to  by  the  master.  TIic  bills  were  mado  pay- 
able to  11.  &  Co.,  and  were  drawn  on  B.  &  Co.,  H.  &  Co.'s  agents 
in  London,  at  ninety  days'  sight.  11.  &  Co.  gave  the  master  a 
memorandum,  stating  that  the  bills  were  taken  as  collateral  secu- 
rity, and  that  the  bond  should  be  cancelled  on  the  prompt  pay- 
ment by  the  owners  of  the  vessel  to  B.  &  Co.,  of  the  amount  of 
the  bills.  On  Oct.  15,  the  ship  sailed  from  the  Mauritius,  and 
safely  arrived  at  Liverpool,  her  port  of  discharge,  on  Feb.  7,  1871. 
After  tiie  ship  had  sailed,  the  owners  of  the  cargo  were  for  the 
first  time  informed  by  letter  from  H.  &  Co.,  that  the  bottomry 
bond  had  been  given.  The  bond  was  transferied,  and  the  bills 
of  exchange  were  indorsed  to  B.  «fe  Co.  Neither  the  master  nor 
the  owners  of  the  vessel  had  any  funds  in  the  hands  of  B.  «fe  Co., 
and  they  neglected  to  provide  funds  to  take  up  the  bills,  and 
informed  B.  &  Co.  that  they  had  determined  not  to  take  up  the 
bond. 

Proceedings  in  admiralty  were  instituted  by  B.  «fe  Co.  against 
the  ship,  her  freight,  and  cargo.  No  appearance  was  entered  ou 
behalf  of  the  owners  of  the  ship  and  freight,  and  the  judge  pro- 
nounced for  the  validity  of  the  bond  as  against  the  ship  and 
freight,  and  condemned  the  ship  and  freight  in  the  amount  due 
in  the  bond.  The  proceeds  of  these  not  being  sufiicient  to  satisfy 
the  bond,  the  plaintiffs  carried  on  the  suit  against  the  cargo.  The 
owners  of  the  cargo  appeared  and  defended  the  suit.  The  princi- 
pal question  raised  in  the  suit  was  whether  the  bond  was  invalid 
so  far  as  related  to  the  cargo,  for  want  of  sufficient  communica- 
tion with  the  defendants,  It  was  also  claimed  that  tiie  master 
shouhl  have  transshipped  the  cargo  at  the  Mauritius ;  and  Sir  Rob- 
er,  PhlUimore  held  that  it  was  competent  for  the  defendant  to  set 
up  ilie  special  defence  that  the  master,  being  in  the  circumstances, 
and  Ijy  the  force  of  necessity,  the  agent  for  the  cargo,  should  have 
transshipped  the  cargo  rather  than  have  contracted  a  loan  on  bot- 
tomry. I>ut  as  it  would  have  involved  an  amcndniciit  in  the  plead- 
inirs  to  have  raised  that  question,  it  was  not  pros-^cd.  The  court 
held  that  suflicicnt  communication  had  not  bi'cn  had  with  the 
owners  of  the  cargo,  and  the  bond  was  declared  invalid.  In  doing 
so,  it  was  laid  down  as  a  ^k)ctrinc  at  which  the  English  courts  have 
slowly  but  steadily  arrived,  that,  according  ^o  the  law,  the  master 
is  always  llio  agent  for  the  ship,  and  in  '  jcial  cases  of  necessity 
the  atrent  for  the  cargo  also.  Ho  h  the  appointed  agent  to  the 
former;  the  ii; voluntary  agent  of  the  latter.  'I'hat,  flowing  from 
these  jirinciples  of  jurisprudence,  the  conactpience  flows,  that 
when  the  circumstances  permit,  the  master  must  communicate 
with  the  owne-  before  he  does  any  acts  which  seriously  affect 

VOL.  I.  17 


i! 


; 


•.-H 


ni;l 


1   III 

I 


n! 


i 


i     1 


258 


COMMENTARIES   ON   SALES. 


[book  II. 


i 


the  value  of  the  ship  in  the  one  case,  or  of  the  cargo  in  the 
other.^ 

The  Australian  Steam  Navigation  Co.  v.  Morsc,^  is  another 
case  whicli  decides  that  the  authority  of  a  master  of  a  ship  to  sell 
the  goods  of  an  absent  owner,  is  derived  from  the  necessity  of  the 
situation  in  which  he  is  placed ;  and  consequently,  to  justify  his 
selling,  he  must  establish  a  necessity  for  the  sale,  and  inability  to 
communicate  with  the  owner.  Under  these  conditions,  and  by  forco 
of  them,  the  master  becomes  the  agent  of  the  owner,  not  only  with 
the  power,  but  under  the  obligation,  within  certain  limits,  of  act- 
ing for  tlie  owner ;  but  he  is  not  in  any  case  entitled  to  substitute 
his  own  judgment  for  the  will  of  the  owner,  in  selling  the  goods, 
where  it  is  possible  to  communicate  with  the  owner.  The  possi- 
bility of  communicating  with  the  owner  depends  on  the  circum- 
stances of  each  case,  involving  the  consideration  of  the  facts  which 
create  the  urgency  for  an  early  sale,  —  the  distance  of  the  poit  from 
the  owner,  the  means  of  communication  which  may  exist,  and  the 
general  position  of  the  master  in  the  particular  emergency.  Such 
a  conununication  need  only  be  made  when  an  answer  can  bo  ol> 
tained,  or  there  is  a  reasonable  expectation  that  it  can  be  obtained, 
before  the  sale.  Where,  however,  there  is  ground  for  such  an 
expectation,  every  endeavor,  so  far  as  the  position  in  which  ho  is 
placed  will  allow,  should  be  made  by  the  master  to  obtain  the 
owner's  instructions.'^ 

1  The  Onward,  L.  K.  4  Ad.  &  Ec.  at 
p.  51.  Oil  the  nuestidii  of  coniinuiiioation 
see  Tlie  Buoimpaite,  3  Hob,  2!)8;  8  Moo. 
P.  C.  4.59  ;  Olaseott  v.  Lung,  2  Phillii)S, 
310  ;  The  Cargo  ex  Sultan,  Swab.  504  ; 
The  Hamburg,  Hro.  &  Lush.  253,  273  ; 
The  Lizzie,  L.  R.  2  Ad.  &  Ec.  254,  259  ; 
The  Panama,  L.  K.  3  P.  C.  199  :  Tlie  Kar- 
nak,  L.  R.  2  Ad.  &  Eu.  289  ;  L.  I{.  2  P.  C. 
505  ;  The  Lord  Coclirane,  2  VV.  Hob,  320  ; 
Duncan  v.  Benson,  3  Ex.  644  ;  The  Grati- 
tudine,  3  C.  Rob.  240. 

i  L.  R.  4  I'.  C.  222. 

*  Ibid.  The  cases  in  this  country  are 
very  generally  to  the  same  effect  as  those 
cited  l)y  us  in  the  above  notes. 

We  examine  some  of  the  numerous 
cases  which  have  been  decided  in  the  State 
and  Feileral  courts  of  this  country.  A  ship 
by  stress  of  weather  had  been  driven  out 
of  her  course.  The  court  held  that,  the 
charge  of  the  cargo  devolving  upon  the 
master,  it  was  his  duty  to  take  proper  care 
of  it.  'u  such  case  the  master  has  power 
to  sell  goods  which  are  damaged  or  of  a 
perishable  nature.*  But  those  which  are 
in  good  condition  and  not  i^rishable  he 
has  no  right  to  sell  without  the  order  of 
the  owners,  to  whom  he  is  liound  to  give 
immediate  information.    If  he  sell  with- 


out justification  he  makes  himself  person- 
ally liable.  Smith  v.  Martin,  6  Binii. 
262.  In  Butler  v.  Murray,  30  N.  Y.  83, 
it  was  held  that  the  master  of  a  vessel  is 
for  most  purposes  the  agent  of  the  owners 
of  the  ship  and  cargo  ;  but  that  agency 
does  not  extend  to  a  sale  of  either  unless 
there  is  a  necessity  at  the  time  for  so 
doing ;  and  this,  citing  Lord  Ellenbor- 
ough,  Abbott,  C.  J.,  an(i  Bayley  and  Piirk, 
JJ.,  "must  be  an  appnvnt  necessity;" 
"a  case  of  absohile  necessity  ; "  "a  case  of 
inevitable  necessity  ; "  or,  as  was  lielil  in 
Bryant  v.  Commonwealth  Ins.  'c,  13 
Pick.  543,  551,  "a  neccisili/  or,  as  it  is 
sometimes  expressed,  a  legal  neces'iifii,  be- 
fore the  master'  can  sell."  The  ccv.irt  lieM 
that  in  order  to  justify  the  .sale  o!  ii  cargo 
at  an  int"rmediate  |>ort  sevcnil  thing's 
must  concur.  (1)  There  must  be  ;i  neces- 
sity for  it  arising  cither  from  the  nature 
or  condition  of  the  jiroiierty,  or  from  the 
inability  to  comi)lete  the  voyage  liy  the 
same  ship  or  to  procure  another.  ('2)  The 
captain  must  have  at^ted  in  good  faith. 
(3)  He  must,  if  practicable,  consult  with 
the  owners  before  selling.  Butler  v.  Mur- 
ray, 30  N.  Y.  88  ;  The  New.  Eng.  Ins.  Co. 
V.  Brig  Sarah,  13  Peters,  387. 

Parker,  C.  J.,  in  an  old  Massachusetts 


^VRT  IV.] 


SHIPMASTERS  AS  AGENTS  OF  NECESSITY. 


259 


Tlie  principle  is  well  established  by  numerous  cases,  that  the 
master  oi  a  ship  being  an  agent  of  necessity,  his  agency  is  limited 


case,  Oonloii  v.  Mass.  Fire  &  Mar.   Ins. 
Co.,  2  rick.  24!>,  201,  suy3  :  "  It  is  oer- 
tiiiii  that  the  iiiiister  of  a  vessel  as  such 
bs  IK)  luithdiity  to  sell  tlie  vessel  or  the 
cari'i)  uiili'ss  in  a  case  of  extreme  nccessUij, 
iimrwluii'  he  acts  with  the  most  perfect 
guoil  f:iitli  for  the  interest  of  tiiose  who 
aiv  coiiecrnetl  in  the  jjroperty.     Tlie  very 
grmiinl  uiiou  which  the  authority  rests, 
iiiimily,  i.r/rcme  acccssilij,  is  j)re;;nant  with 
uiu:iTt.iinty,  as  the  facts  which  create  it 
will  vary  iii  their  elfect  ujion  minds  ditfer- 
intly  constituted.  ...  I  think  we  may 
tike  it  to  lie  established  law  that  the  mas- 
tiT  of  a  vessel  ins\ired,  which  has  received 
damage  by  the  perils  of  the  sea,  may  in 
cases  of  necessity  sell  the  vessel,  and  that 
ii|Hin  a  sale  so  occasioned  may  be  founded 
ailaiiii  ajjainst  the  underwriters  for  a  total 
loss ;  wlietlicr  with  or  without  abandon- 
iii'Mit  h.  another  question  for  consideration. 
Whetlier  such   necessity  existed    or  not 
must  be  always  a  tjuestion  of  fact  for  the 
juvy.    Tliis  necessity  must  be  of  a  moral 
nature,  resultinj;  from  certain  facts  and 
cireunistances,  which  are  to  be  judged  of 
first  by  the  master  himself,  and  afterwards 
rejudtjed  by  a  jury,  and  perhaiis,  willi  soino 
strietiiess,  on  account  of  the  danger  there 
may  lie  of  an  abuse  of  this  authority  by 
I'oliusioii  between  the  master  and  the  own- 
ers to  the  prejuilice  of  the  underwriters, 
or  by  the  i'niud  of  the  master  alone  to 
.iiiswer  some  private  purpose  of  his  own, 
or  to  delVaud  the  owners  (See  Somes  v. 
SuRrue,  4  (.'.  &  I'.  276  ;  Pata|)sco  Ins.  Co. 
r.  Soutligate,  5  Pet.  621).     iJut  the  jury 
will  judge  of  the  conduct  of  the  master 
from  the  state  of  things  at  the  time  and 
jilaco  when  and  where  the  sale  took  place  ; 
Irom  the  conduct  of  the   master  in  the 
measures    jireliininary   to    the    sale,   and 
from  the  actual  circumstances  attending 
it.    If  the  ve.asel  has  met  with  any  consid- 
erable sea  damage,  tlie  usual  course  is  to 
ohtniu  the  opinion  of  competent  j)ersons 
iis  to  till!  degree  of  injury,  the  means  of 
rcpairuig  it,  ami  the  titness  or  unfitness 
of  cneoiiiitering  the   e.\pense  which  may 
have  been   necessary.      These    opinions, 
founded  oil  facts  which  are  known  to  the 
persons  composing  the  board  from  actual 
ohservatioii,  and  from  personal  e.vamina- 
tion  of  the  vessel,  though  not  conclusive, 
are  certainly  very  strong  evidence  of  the 
condition  of  the  ves.sel,  and    if  the  pro- 
priety of  repairing  her  or  L  caking  her 
up  as  unfit  for  repair."     Anu  see  Smith 
r.   Robertson,    2    Dow,    479  ;    Milles   v. 
Fletcher,  1  Doug.  234  ;  Green  v.   Koyal 
Kx.  Ass.  Co.,  6  Taunt.  68  ;  Idle  v.  Koyal 
Ex.  Ass.  Co.,  8  Taunt.  765 ;  Hayman'  v. 


Molton,  5  Ksp.  6.5  ;  Thormdy  v.  Hehson, 
2  B.  &  Aid.  518;  The  Gratitudine,  3  Kob. 
Ad.  240  ;  The  Hettv  Catheart,  1  Kob.  Ad. 
220;  Hall  v.  Franklin  Ins.  Co.,  9  Tick. 
477;  Winn  v.  Columbian  Ins.  Co.,  12 
Pick.  282  ;  Ihyant  v.  Cominonwealtli  Ins. 
Co.,  6  Pick,  isi  ;  Carman  v.  Meabnrn, 
1  King.  243  ;  Freeman  v.  Kast  liulia  Co., 
5  B.  &  Aid.  617;  Fanny  ami  Klmira,  Kdw. 
Ad.  117;  The  Schr.  Tilton,  5  Ma'^on,  475  ; 
American  Ins.  Co.  v.  Center,  4  Wend.  52. 
See  the  distinction  as  to  a  sale  by  a  master 
as  to  the  owners,  and  a  sale  by  a  master  to 
bind  the  insurers.  Idle  v.  i{oyiil  Kx.  Ass. 
Co.,  8  Taunt.  755  ;  The  Schr.  Tilton,  5 
Mason,  475;  American  Ins.  Co.  v.  Center, 
4  Wend.  52. 

It  is  the  well-known  rule  on  the  sub- 
ject, that  to  warrant  a  sale,  it  must  be  made 
to  apjiear  to  the  satisfaction  of  the  jury,  not 
only  that  there  is  an  actually  existing,  in- 
evitable necessity  for  breaking  up  the  voy- 
age and  abandoning  the  ship,  but  that  in 
determining  upon  that  measure  the  master 
acted  with  competent  skill  and  judgment ; 
with  due  care,  diligence,  and  attention,  and 
with  strict  fidelity.  In  testing  the  con- 
duct of  the  master  in  these  [larlicuhirs,  it 
is  not  an  unfit  illustration  to  incpiire  how 
a  prudent  and  discreet  owner,  interested 
to  the  amount  of  the  property,  would  act 
under  like  circumstances.  It  furnishes,  at 
least,  a  test  of  the  honesty  and  sincerity, 
the  zeal  and  perseverai.re  with  which  ho 
acts,  for  the  lienefit  of  those  concerned  in 
the  preservation  of  the  juoperty  under  his 
charge.  Winn  t>.  Colnmbiau  Ins.  Co.  12 
Pick.  279,  286  ;  The  Patapsco  Ins.  Co.  v. 
Southgate,  5  Pet.  604  ;  Uobia.  on  i;.  Com- 
monwealth Ins.  Co.,  3  Snnui.  2'.:7.  It  wius 
held  in  Pike  i>.  Balcli,  38  Me.  3U2,  that  if 
the  voyage  be  broken  up,  in  the  course 
of  it,  by  ungovernable  circumstances,  the 
master,  in  that  case,  may  even  sell  the 
ship  or  cargo,  jirovided  it  Ik-  done  in  good 
faith  for  the  good  of  all  concerned,  and  in 
cases  of  supn'iiie  necessity  which  sweeps 
all  ordinary  rules  before  it.  lii  case  of 
necessity  or  calamity,  during  the  voyage, 
the  ma.ster  iK'coines  the  agent  of  the  owners 
and  insurers  of  the  ship  and  cargo.  He  is 
bound  to  act  in  good  faith,  and  fcr  ihe 
benefit  of  all  concerned,  and  is  not  .pisti- 
lied  in  selling  either  ship  or  cargo  but  in 
case  of  extreme  necessitv.  N.  li.  Ins.  Co. 
V.  Brig  Sarah  Ann,  13  Pet.  387. 

A  sale  is  the  last  thing  tiie  master 
.should  think  of,  because  it  can  only  be 
justified  by  that  necessity  which  super- 
sedes all  human  laws.  The  merchant 
should  be  consulted  if  pos.siblp,  and,  un- 
doubcedly,  as  a  general  rule,  the  earliest 


i'5i 

iW '  A'rS 


i' 


'1:t>- 


:    >:\l'' 


i; 


260 


COMMENTARIES  ON  SALES. 


[book  II. 


by  the  necessity ;  and  therefore  tliat  he  cannot,  as  a  general  rule, 
bind  the  shipowner  even  for  "  necessaries  "  at  the  home  port ; 


use  of  tho  ordinary  means  to  convey  intelli- 
gence in  such  cases  would  be  the  most 
uvailable  and  elFoctual  means  in  the  power 
of  the  master  ;  but  where  the  calamity 
occurs  in  a  place  so  situated  and  limited 
in  its  ordinary  means  of  trananiitting  intel- 
ligence by  mail,  that  a  resort  thereto 
would  be  obviously  fruitless  and  nugatory, 
it  is  not  going  beyond  the  re(iuiri!ments  of 
well-established  law  to  holtJ  the  master 
iKiund  to  avail  himself  of  such  other  means 
as  may  be  in  his  power,  and  by  which 
notice  might  be  speedily  communicated  to 
the  owners.  I'ike  v.  Halch,  38  Mc.  3<i2  ; 
N.  K.  Ins.  Co.  V.  Brig  Sarah  Ann,  13  Pet. 
387  ;  Hall  v.  Franklin  Ins.  Co.,  9  Pick. 
4(56  ;  Bryant  v.  Commonwealth  Ins.  Co. 
13  Pick.  543;  Peirce  V.  Ocean  Ins.  Co.,  13 
Pick.  543. 

In  Wainwright  v,  Crawford,  4  Dallas, 
22r»,  which  was  an  action  to  recover  from 
the  owner  money  lent  to  the  master  for 
repairs  and  disbursements,  the  court  held 
that  if  the  jury  were  satisfied  that  there 
waa  an  actual  necessity  for  borrowing  the 
money,  the  plaintiffs  should  recover  ;  that 
the  lender  was  bound  to  make  due  inquiry 
whether  the  repairs  were  necessary,  and 
whether  the  master  had  etfects  in  his 
hands  suflicient  to  defray  the  expense  of 
repairing,  without  resorting  to  a  loan. 
But  if  tlie  case  of  necessity  existed,  and 
the  plaintiifs  did  not  know  that  the  master 
had  sufficient  funds  in  possession  to  re- 
lieve the  necessity,  the  owner  would  be 
hound  personally.  See  liich  v.  Coe,  2 
Cowp.  636  ;  Samsun  v.  Bragginton,  1  Ves. 
Sen.  443  ;  Yates  v.  Hall,  1  T.  R.  73 ; 
Sherman  v.  Degrave,  2  Vern.  643  ;  14  Vin. 
Ab.  300,  1.1.  9. 

In  Pope  I'.  Nickerson,  3  Story,  465, 
477,  it  is  laid  down  as  an  establislied  prin- 
ciple, as  old  almost  as  the  navigation  of 
these  countries,  that  the  authority  of  the 
master,  as  to  the  employment  of  the  ship, 
or  the  repairing  of  the  ship,  or  the  supply- 
ing of  the  shij)  with  provisions  or  other 
necessarii's,  abroad  as  well  as  at  home,  is 
hmited  by  the  express  or  implied  author- 
ity derivable  from  the  laws  of  the  country, 
or  the  usaj»o  of  the  trade,  or  the  business 
of  the  ship,  or  tho  instiuctions  of  the 
owner  ;  and  he  cannot  bind  the  ship  or 
the  owners  beyond  these  limits.  In  this 
case  it  was  held  that  the  shipowners  were 
liable  personally  to  the  plaintiffs,  the 
cargo-owners,  for  the  jiroceeds  of  the  cargo 
apprupriated  by  the  master  of  the  ship, 
for  repairs  to  the  ship  ;  that  the  sale  of 
perishing  articles,  and  the  appropriation 
of  the  proceeds  to  the  repairs  of  the  ship, 
were  justifiable.    But  that  the  sale  of  the 


sound  part  of  the  cargo  was  niijustiliilile 
and  that  the  shipowners  were  not  li;ible 
for  this,  nor  for  moneys  paid  out  of  su';h 
j.roceetls  by  the  master  in  paynicut  of  a 
bottomry  liond  ;  but  that  the  inuhUr  was 
responsible  to  the  shippers  for  the  jirocei'ils 
of  such  sale.  In  Myers  v.  liayinuri',  lo 
Pa.  St.  114,  tho  shipmaster  stihl  at  a  puit 
of  refuge  sugar  whii^h  the  surveyors  re- 
ported was  damaged  by  sua  walci,  ainl  the 
sale  of  which  they  recoininciidcil.  The 
proceeds  were  used  for  \.\w  repairs  nf  the 
ves.sel.  The  shipowners  were  luM  lialile 
for  the  market  value  of  the  su},mi  ,it  the 
port  of  destination.  In  cases  ol  iic.esajtv 
or  calamity,  din-ing  the  voyage,  tlie  niMat.'r 
is  by  law  created  agent  for  the  Ijcialit  of 
all  concerned  ;  and  his  acts,  done  iiiilcr 
such  circumstances,  in  the  exercise  ol  a 
sound  discretion,  are  binding  upiiu  all  the 
parties  in  interest  in  the  vnyai,'e.  Ami 
where  a  cargo  is  so  much  injiiretl  t1i.it  it 
will  endanger  the  safety  of  the  bliipaiiil 
cargo,  or  it  will  become  utterly  wortliltss, 
U  is  the  duty  of  the  muster  to  land  aiiil 
scii  the  cargo  at  the  place  where  the  iii'ies- 
sity  arises,  even  although  it  ini;.;lit  have 
been  carried  to  the  port  of  destiiiatiuii, 
and  there  landed.  Jordan  v.  Warren  lib. 
Co.,  1  Story,  342. 

In  Bryant  v.  Commonwealth  Ins.  Co., 
6  Pick.  131,  141,  it  is  laid  down  that  the 
law  authorizes  the  master,  in  casus  dl'  ship- 
wreck, stranding,  or  other  disasters  wliiih 
may  happen  without  his  fault,  in  the 
course  of  the  voyage,  to  act  for  all  partiM 
interested,  in  tlieir  absence.  If  the  ship 
should  be  stranded,  it  would  be  his  iliity, 
in  behalf  of  the  owner  of  the  .ship,  to 
get  her  off  and  prosecute  the  voyaj^e,  if  it 
could  be  done  at  an  expense  not  exiTeil- 
ing  half  her  value.  So,  if  that  coidd  iiot 
be  done,  he  has  authority  to  prdcnie  an- 
other ship  to  carry  the  cargo  tn  the  jmrt 
of  destination.  If  the  cargo  wen-  daniasHil 
by  the  stranding  not  exceeilinv'  nin' half 
the  invoice  value,  it  would  be  the  duly  of 
the  master,  as  rc])res('ntiiig  the  owiiir  of 
it,  to  cause  it  to  be  reladeii  (in  Imaiil  the 
ship,  if  that  were  in  a  coiulitioii  'i  tiaiiv 
jmrt  it :  or  if  not,  on  board  aiiv  other  ship 
which  he  could  procure  iiimn  reas-malile 
terms,  on  account  of  the  shiiiiiwiier,  to 
the  end  that  the  shipowner  niav  eirn  his 
freight,  and  the  merchant  have  hisenods 
at  tlie  port  of  destination.  See  liiiiiti'. 
Hoyal  Kx.  A.ss.  Co.,  5  Man.  &S.  47.  The 
master,  in  short,  is,  in  such  cases  of  ili-- 
aster,  to  act  reasonalily  and  tinnestly,  with 
a  view  to  save  the  property  and  to  |ierlnim 
the  voyage.  Schieffelin  v.  N.  Y.  I"'- 
Co.,  9  Johns.  21 ;  Wilson  v.  The  Koyal 


PART  IV.]  SHIPMASTERS  18  AGENTS  OP  NECESSITV. 


261 


for,  in  such  case,  goods  supplied  to  the  captain's  order  would  not 
be  necessaries  iu  one  sense,  because  the  owner  would  have  sup- 
plied them.* 


Kx.  Ass.  Co.  2  Cainpb.  623  ;  Manning  v. 
Ninviiliiim,  2  Ciiiniil).  624  n. 

The  iiiiiicil>li'.s  of  the  maritimo  law 
clotlio  iho  iiiastor  with  the  power  of  nj^i-nt 
of  tlic  i:ait;'i  whi'n  cast's  of  extremity  occur, 
lio  iii.iv  SI  11  a  part,  or  he  may  hypothecate 
tin'  wliolc  carj<o  even,  for  tlie  necessary 
ie|iaii-i  (if  till!  sliip,  when  that  act  is  re- 
(luiivil  to  I'tiable  him  to  continue  the  voy- 
a;,'i'.  Tliiiii;;li,  ordinarily,  lie  is  the  mere 
lariur  uf  the  cargo,  yet  in  a  case  of  dilli- 
tulty  ami  ])eril ,  he  becomes,  ex  necessitate, 
a  tiiisti'e  of  it,  with  a  large  and  liberal 
ilisiiitidii,  and  this  power  is  then  given  to 
hiia  Innii  iiublic  policy,  for  without  this 
power  the  ca'go  might  be  left  to  perish. 
The  Gialitudine,  3  Kob.  Ad.  240.  And 
this  jiQwer  over  the  cargo  for  repairs  to 
the  ship  exists  in  at  least  equal  force 
whcri'  tlie  interest  of  the  cargo  is  directly 
in  iiucstion  ;  but  to  mortgage  the  ship  for 
the  kiielit  of  the  cargo  is  going  beyond 
his  trust  and  the  rules  of  law.  Fontaine 
V.  The  Columbian  Ins.  Co.,  9  Johns.  2!>. 

Unless  it  appears  that  a  sale  of  cargo  is 
a  nuci'ssity,  the  master  has  no  authority  to 
sell  it,  at  ail  intermediate  jiort.  In  order 
to  justily  suili  a  sale  it  must  appear  that 
the  caif^o  could  not  have  been  sent  forward 
liy  the  vessel  in  which  it  was  shipped,  or 
by  some  other  vessel.  Dodge  v.  The 
Union  Mar.  Ins.  Co.,  17  Mass.  471.  In 
The  William  Carey,  3  Ware,  313,  the 
sail-  of  a  ship  by  a  master  was  sustained, 
but  with  coiisiilerable  hesitancy.  The  ne- 
cessity lor  the  sale  was  eonsidereij  clear ; 
but  this  alone  is  not  sufficient.  There 
must  lie  entirely  good  faith  in  the  sale 
on  the  part  of  the  master.  He  is  ap- 
])oiiiti'(l  to  navigate  the  vessel,  and  ior 
that  purpose  he  is  the  agent  of  the  owners, 
ami  has  all  the  powers  that  such  an  agency 
rei|Uires ;  but  the  agency  to  sell  the  ship 
is  cast  upon  hini  by  the  law  in  extreme 
cases,  and  it  is  his  duty  to  obtain  as  much 
for  her,  and  for  the  benefit  of  the  owners, 
as  he  can,  .Some  doubtful  conduct  on  the 
[•art  of  the  master  was  unexplained,  but 
the  liliel  to  set  aside  the  sale  was  dismissed, 
with  eviileiit  doubt  ;  but,  on  appeal,  the 
juil^'nieiit  was  atfirmed,  but  ivUfumt  cnsts  ; 
a  further  expression  as  to  the  necessity  of 
thornufjh  good  faith  on  the  part  of 'the 
agent  of  necessity.  The  William  Carey, 
3  Ware,  313,  317. 

The  following  cases  further  exemplify 
the  jiriiii'iples  governing  .sales  of  ship  and 
cargo  liy  the  master  under  circumstances 
in  which  by  law  he  is  created  the  agent  of 


necessity  of  all  parties  interested  :  Peters 
V.  Ballister.  3  I'ick.  4i>5 ;  Milward  v. 
Ilallett,  2  Gaines  (N.  V. ),  77  ;  Wainwright 
V.  Crawford,  3  Yeales  (Fa.),  131  ;  Merritt 
V.  Walsh,  32  N.  Y.  68;". ;  Fit/  v.  The 
Galliot  Amelie,  2  I'lilf.  (Ciret.  Ct.)  440; 
The  I'atapsco  Ins.  Co.  v.  Soutiigate,  3 
I'et.  6-JO  ;  N.  E.  Ins.  C.  v.  Sarah  Ann,  13 
Pet.  400  ;  Tost  V.  Jones,  lU  How.  157  ; 
Prince  v.  Ocean  Ins.  Co.,  40  Me.  41*3; 
Hariied  v.  Cliuichman,  4  I.n.  Ann.  310  ; 
Hugely  V.  Sun  Mut.  Ins,  Co.  of  N.  Y.,  7 
La.  Ann.  279  ;  The  Ship  Packet,  3  Mason, 
2.'i5;  The  Kugene  Vesta,  28  Fed.  Uej).  762. 
Where  the  circumstances  of  the  case  do 
not  di.sdose  that  urgent  necessity  which 
alone  autlioiizes  the  sale  of  the  vessel  and 
cargo  by  the  master,  the  sale  is  an  act  of 
barratry  on  his  part  which  confers  no  title 
on  the  purchaser.  Graham  v.  Underwood, 
15  La.  Ann.  402. 

The  authority  of  the  master  to  bind  the 
ship  or  owners  being  only  for  necessaries, 
the  ])arty  furnishing  the  supplies  is  re- 
quired to  give  some  proof  that  they  are 
necessaries. 

In  England,  it  has  been  held  that  the 
proof  that  the  articles  furnished  were  neces- 
sary should  come  from  the  party  supplying 
them,  to  the  extent  of  showing  that  they 
were  what  a  reasonable  and  prudent  owner 
would  have  ordered .  that  there  must  be 
sure  evidence  ;  and  that,  as  founded  on 
great  and  important  principles,  and  as 
wisely  framed  to  prevent  great  abuses,  the 
doctrine  casts  the  onus  /irobundi  on  the 
tradesman  or  material-man  who  jiiovided 
the  articles.  The  Alexander,  1  W,  Hob. 
361  ;  The  Sophie,  lb.  369.  And  see 
Uocher  v.  Husher,  1  Stark.  27  ;  Palmer  v. 
Oooch,  2  Stark.  428  ;  Beldou  v.  Campbell, 
6  Ex.  886. 

In  this  country  a  difFerent  rule  has 
been  laid  down,  viz.,  that  while  the 
supplies  are  confined  to  such  as  are  neces- 
sary, it  leaves  the  decision  as  to  what  i.s 
necessary  rather  to  the  master  than  the 
creditor.  Ford  i-.  Crocker,  48  Barb.  142, 
In  Provo.st  v.  Patchin,  9  N.  Y.  23.*),  it 
was  held,  that  where  labor  by  way  of  re- 
pairs is  performed  on  a  ship,  or  sujiplies 
furnished,  the  |)resumption  is  that  it  was 
done  and  furnished  for  the  benefit  and  at 
the  request  of  the  owners.  See  Flanders 
V.  Merritt,  3  Barb.  201.  And  where  the 
master  told  the  storekeeper  that  the  sup- 
plies were  needed  for  the  vessel,  the  own- 
ers were  held  liable.  Kenzcl  v.  Kirk,  37 
Harb.  113.    But  in  The  Medora,  1  Sprague, 


'  Per  Brett,  J.,  in  Guun  v.  Uoberts,  L.  R.  9  C.  P.  331 ;  at  p. 


332. 


I 


li    ti 


if 


,! 


!        ! 


X' 


\i 


262 


COMMENTARIES  ON  SALES. 


[book  II. 


This  principle  in  Giinn  v.  Roberts'  and  in  other  cases  has  been 
still  further  applied,     lu  Guun  v.  Roberts,  the  defendants  were 


!■ 


r'' 


139,  the  ncccsHity  of  the  supplies  is  put 
upon  tho  tiiiiim  ^'loiiutl  iis  iu  'Ihu  Aluxiiu- 
(ior,  1  \V.  Uob.  ;}t51,  — as  noci'ssary,  if  thfv 
aro  tit  and  proper  fur  tliu  si-ivicu  in  wliicli 
tliu  vessel  is  engiigoil,  ainl  what  the  owner 
of  tiuit  V(!.ss(!l,  as  a  pnidout  man,  would 
havo  ordered  if  present.  In  Webb  v. 
I'ioree,  1  Sprnfjiie,  1!>2,  VJ^,  t\w  ;,'encral 
doetrine  is  laid  down,  which  may  bu  .said  to 
bo  universally  true,  that,  amuti;r  the  usual 
and  well-known  powers  of  a  master,  is  that 
of  obtaining  necc.is'inj  sitpplifs  in  a  foreign 
port  ujwn  the  credit  of  his  vessel  and  own- 
ers. As  his  [lower  is  that  of  an  agent  to 
obtain  only  neecsnari/  siipplict,  it  would 
seem,  on  principle,  that  he  who  claims 
against  the  ship  or  owner,  on  the  eontract 
of  the  master,  would,  in  order  to  bind  the 
ship  or  owner,  have  to  show  the  necessity 
for  the  supplies.  Precisely  the  same  bur- 
den would  seem  to  rest  upon  tho  furnisher 
of  tho  supplies  in  this  case  as  in  the  closely 
analogous  case  of  that  otlua'  agent  of  ne- 
cessity,—  a  niarric<l  woman  aliandoned  by 
her  husband.  The  dilliculty  in  every  case 
of  the  proof  of  the  necessity  is  clearly  no 
greater  in  the  one  ease  than  in  tho  other. 
Even  under  the  old  rules  of  evidence,  ex- 
cluding evidence  from  interest,  now  so 
generally  changed,  the  testimony  of  the 
muster  was  held  admissible,  as  an  excep- 
tion to  the  general  rule  of  evidence  ex- 
cluding interested  witnesses,  from  neces- 
sity of  public  convenience.  1  Ur.  on 
Ev.,  §  416;  Fuller  v.  Wheelock,  10  Pick. 
137;  Tho  Nestor,  1  Sumn.  73;  The  Me- 
dora,  1  Spragiie,  138. 

In  The  Nestor,  1  Sumn.  73,  where  tho 
question  of  the  admissibility  of  tho  mas- 
ter's evidence  is  considered  at  length,  the 
burden  of  nroof  seems  to  have  been  placed 
on  tho  s  Her  to  show  that  an  admitted 
necessity  —  a  cable,  which  was  sold  to  the 
master  —  was  sold  on  the  credit  of  the 
ship.  Wc  find  an  old  Ameri(;an  case 
where  this  view  is  sustained,  and  is  con- 
sidered undoui)ted.  It  is  there  said: 
"That  an  owner  is  generally  only  re- 
sponsible for  necessaries  is  not  denied. 
In  the  ease  of  Carey  v.  White  (1  Bro. 
P.  C.  284),  this  doctrine  wns  fully  con- 
sidered and  firmly  establ'.shed.  It  has 
not,  1  believe,  been  seriously  (ptestioned 
since.  But  what  are  necessaries  the  jury 
only  can  decide,  as  was  ruled  in  the  case 
just  cited.  But  it  is  contended  the  Jury 
had  not  sufficient  evidence  before  them  to 
authorize  the  conclusion  that  the  articles 
furnished  were  necessary.  One  witness 
declared  that  tlie  articles  furnished  were 
generally  necessary  to  vessels    similarly 


situated.  The  captain,  who  was  tiiu  i.on- 
tidential  servant  of  tho  owner,  ami  tlm 
best  judge  of  what  was  necessary,  wm. 
ties,  under  his  hand,  this  aceuijut.  .An. 
other  witness  proves  that  large  siiiiis  wiio 
paid  and  advanced  to  the  seanicii.  A  liii^ii 
Item  in  the  account  is  for  the  duty;  an- 
other is  the  carpenter's  bill,  i-U:  Tliis 
was  evidenc(!  enough  to  go  to  lin'  jury," 
All  of  this  evidence  was  on  the  |Mrt  of 
the  plaintitr,  and  the  accounts  siiowi'd  thi; 
application  of  the  sums  advamed  Id  the 
necessary  puri)oses  of  the  ship.  It  wiis 
held  that  this  evidence  autlioii/iil  the 
jury  to  find  in  favor  of  the  plaintilk 
Buniuin  v.  Klinn,  1  Alct'onl,  ;;l(i. 

Tlie  case  above  citcil  us  Can^y  v.  White, 
1  Bro.  P.  C.  281,  and  which  is  .  •  i  in 
Abbott  on  Ship.  (12th  London  C'l.),  lit, 
as  there  reported,  we  find  ri  |miiIi(1  m 
Carey  o.  White,  5  Bro.  P.  C.  '.Vi:,  CJUd,, 
by  'romlins,  A.  o.  18o:{).  It  w,i>  there 
held  that  in  a  voyage  tho  muster  of  a  ship 
is  the  owner's  servant,  and  !iis  duty  if- 
(piires  him  to  provide  nficc«s(ii-ii:i  lur  tho 
ship.and  it  is  the  owner's  interest  lliit  th. ' 
should  bo  iirovided;  therefore  what  thi'  imir 
tcr  )ifcissiiri/i/  takes  up,  anil  eiN|ili)ys  for 
that  purpose,  the  owners  must  pay.  This 
clearly  places  the  burden  of  proof,  wiidi' 
we  think  it  umpiestionalily  rest  ,  mi  !!• 
party  sup|)lying  tho  money  or  iiiatti:  Is. 
There  was  an  issue  ordereil  in  this  ease  to 
try  whether  any,  and  what  sums  of  iiionry, 
were  ncccsxdrilij  laid  out  by,  or  liy  the 
order  of,  the  a|ipellant  for  the  jiayiiirnt 
of  .seamen's  wages,  provisions,  oi  other- 
wise, for  the  ncccsmnj  rcpnirs  and  use  of 
the  ship.  The  aliirnuitive  of  llie  issue 
would  here  lie  on  the  plainfitf,  to  shnw 
what  was  ncccssarilij  laid  owi  fur  the  ntc'i- 
sarij  repairs  and  use  nf  the  slii/i;  m\ 
on  .such  an  issue  tho  shipowner  wnuLl 
not  be  called  on,  in  the  first  instaiie, 
to  prove  the  negative,  —  that  the  iiiomy 
was  not  necessarily  laiil  out,  etc.  See 
s.  c.  15  Vm.  Ab.  348;  2  Ivp  (as.  Ah. 
722. 

In  a  case  before  very  able  judcr"s  (Lni^l 
Brougham,  Baron  Parke,  Bo.saii'HU't,  ■'.. 
and  Dr.  Lnshington),  the  rule  wis  luil 
down  thus:  "The  foreign  merchant nui;lit 
to  know  that  the  master's  aiitlmrity  ti 
biml  the  ship  and  cargo  by  a  iHittomry 
bond  is  fnunded  on  necessiti/  nlimr;  anJ 
that  it  is  his  duty,  before  hi>  takes  a  se- 
curity so  onerously  affecting  the  |iniiifrty 
of  others,  to  satisfy  himself,  by  a  roason- 
able  inquiry,  that  the  circitm.itivi'rs  of  thi 
case  justify  the  master  in  this  excrdif  y 
his  authority."    Sjares  v.  liahn,  3  Moo. 


1  L.  R.  9  C.  P.  331. 


[book  II. 

has  been 
lilts  were 

viis  ilio  (.on- 
vv,  ami  tilt) 
'ssary,  ti'iii. 
count.    .\ii. 
;>•  >\\\M  Wrii; 
iii'U.    Al:il;;i! 
lie  ildly;  uii- 
,    fli.'.     This 
tu  till'  jury." 
I  till'  part  of 
;s  sliiiwuil  tlie 
aiirutl  ti)  the 
hi]).      It  «;1S 
Uhoii/''il  llie 
lu;   |>laiiitllli. 

•d,  ;iit;. 

iivy  ('.  White, 
:h  is  '  •  I  in 
don  <"i.),  'J4, 

I      rcpllltrll    iU 

I.  ;vr.  ciiei, 

it    \Vll>    tlllTO 

lister  lit' a  ship 
i  his  iliity  re- 
v,s'(i)'/V.s'  liir  the 
,LMvst  lliitthv' 

Mvliat  tlli'llKLr 

1(1  t'lniiliiys  fur 
list  pay.  Thii 
f  priiof,  wiiep' 
r  icst-.  im  tl  ■ 
■  or  inati-i , '.li 
in  this  case  to 
iinis  of  money, 
.)y,   or  hy  the 

tho  payinriit 
Diis,  or  other- 

u-.s  and  line  0/ 
ol'  the  issue 

iitiir,  to  siiow 

t  for  the  Htiw- 
\hv  ship;  M'l 
Ipowiier  wniiU 

first  instaive, 
|iat  tlie  "">'"■;' 

mt,   etc.     See 
¥a\.  Cas.  Ab. 

1  judge's  (I.onl 
Josaii'piet,  .'.. 
Trulo  WIS  lail 
liereliaiit  o»!;lit 
authority  t) 
ly  a  liottomry 

lie  takes  a  «• 
the  proiierty 
f  by  a  roiisi'ii" 
mnstiivesoftht 

l/i(s  m-rfis(  «j 
lllahn,  3  Moo. 


PART  17.]  SHIPMASTERS   AS  AGENTS  OF  NECESSITY. 


263 


owners  of  tlic  ship  Aracanu.    The  action  was  brought  for  money 
and  supplies  furnisheil  by  the  plaintiff,  on  the  master's  order,  for 


r.  C.  1.  Ill  this  e.iso  tho  .sliiji  wuh  in  the 
iHirt  ol'  Lisbon,  hound,  witii  a  uai';,'o  of 
(luii  ksilver,  Iroru  tlie  port  of  Cndi/,  'o  Lon- 
(lull,  and  ni'i'ilin^  ropaiiii ;  iind  it  was  ad- 
vertised  tiiat  a  puhlic  Hulu  would  tako 
place  of  a  loan  on  bottomry,  "to  defray 
till' exjielises  oecasiolifd  by  tll(i  vu.ssel  luiv- 
w^  heeii  I'liieeii  to  put  into  the  pori  of 
Lisbon."  It  seemed  that  the  master  could 
have  ;;ol  the  money  lor  tho  necessaiy  re- 
pair«  ol  the  ship  on  thi!  personal  credit  of 
till'  iKviier ;  but  it  did  not  appear  that  tho 
phiinliir,  who  boii<{lit  the  bond  at  the  auc- 
tiiiii,  was  aware  of  this  fa(!t.  The  Privy 
(.'oiiiiiil,  alliiniiiij,'  the  judf;inent  of  the 
riiiiit  ol  Admiralty,  held  that  the  plain- 
titr  loiilil  not  recover.  See  The  Augusta, 
1  Doil.  283 ;  The  drelin,  3  Haf;«.  75  ; 
llcatliorn  t'.  Darlinj;,  1  Moo.  1'.  C  5 ; 
(lore  r.  (iardner,  1  Moo.  I'.  ('.  76  ;  Stain- 
hank  I',  l-'enninf,',  11  C.  B.  88;  The  Rlia- 
(laiiiaiithe,  1  Doil.  '2U1;  Tho  Alexander,  1 
Uoil.  :i78. 

The  ease  of  Soaros  v.  Kahn,  3  Moo. 
1'.  C.  l,\vas,  as  will  be  observed,  the  case 
of  a  sale  of  bottomry  lx)nd.  We  think 
that,  in  sueli  a  case,  as  well  as  in  that  of 
a  siile  hy  the  master  of  the  ship  or  cargo 
or  lioth,  as  the  agency  is  created  ex  neci-s- 
silali,  and  is  within  the  strictest  rules  of 
special  agency,  in  connection  with  extraor- 
dinary (liitiijs  that  are  tliru.st  upon  him, 
the  rule  as  to  showing  the  necessity  for 
the  iiiiistei's  acts  would,  on  principle,  bo 
mill  h  more  rigorously  applied  than  in  the 
imliiiary  case  of  a  master  purchasing  usual 
necessary  supplies  for  the  ordinary  re- 
qiiiivnicnts  of  the  vessel.  In  this  latter 
ease  the  master  would  occupy  more 
uciirly,  for  t'.ie  jiurpose  of  obtaining  such 
ncccvsary  supplies,  the  jiosition  of  a  gen- 
eral agent,  —  limited,  of  course,  by  the 
suo[«'  (if  his  empl()ynient.  See  Morton  0. 
Dav,  0  l.a.  Ann.'7»!'2;  General  Interest 
Ins.  Co.  V.  Ruggl.'s,  12  Wheat.  412 ; 
I'eters  V.  Halleslier,  3  Pick.  49:.;  Pope  v. 
Nickcrson,  3  Story,  46,i;  The  Oiapesliot, 
0  Wall.  13G;  Miller  r.  Palmer,  58  Md. 
451;  Party  i-.  Clark,  41  Md.  327.  This 
distinction  may  tend  to  harmonize  .some 
of  the  cases  which  otherwi.se  seem  irre- 
concilahle. 

With  reference  to  the  general  agency 
for  such  jiurpose,  a  very  high  authority  on 
the  siihjcct  says  :  "Tlie  nia.ster  is  the  pre- 

sii d  and  accreilite(t  agent  in  fitting  out, 

victualling,  and  manning  the  ship  abroad; 
and  that  for  his  engagements  in  those  re- 
sjH'cts,  or  even  for  money  borrowed  for 
tlie  purpose  of  furnishing  necessaries  for 
the  sliii),  the  owners  will  be  bound,  pro- 
dded the  loan  appears  to  be  fairly  sup- 
ported by  evidence  of  existing  necessities." 


1  Hell's  Com.  (7th  ed.),  550.  Wo  think 
thiH  a  fair  statement  of  the  law,  and  that, 
even  in  the  case  where  the  master  is  the 
agent  of  the  owners  to  obtain  ordinary 
necessary  8U|(plies,  the  burden  of  proof  of 
showing  the  existing  necessity  is  on  the 
party  supplying  them,  which,  wo  think, 
would  be  met  by  fairly  showing  that  thoy 
were  necessaries  furnished  the  niiuster,  in 
good  faith,  lor  the  ship.  See  an  elabo<- 
rate  judgment  by  Storv,  .1.,  in  The  Ship 
Fortitude,  3  Sumn.  2'J8,  241»,  in  which,  on 
tho  point,  he  says:  "The  point  can  only 
arise  where  no  necessity  lor  the  repairs  or 
supplies  exists,  and  where,  by  the  use  of 
reasonable  diligence,  the  absence  of  such 
necessity  could  have  been  known  and  as- 
certained. If  the  re]iaiis  and  supplies  are 
neccs.sary,  then  the  creditor  will  be  entitled 
to  recover  the  amount  from  the  owner  (for  I 
am  speaking  of  cases  of  ordinary  supplies, 
where  no  bottomry  bond  is  taken),  with- 
out making  any  iiKiuiiy  whatever.  On 
i\w  other  hand,  if  no  iiupiiiies  whatever 
could  have  put  the  creditor  in  pos.scssion 
of  the  real  tacts,  and  he  has  acted  upon 
the  representations  of  the  master  with 
good  faith,  and  under  circumstances  af- 
fording no  ground  of  suspicion  of  ill  faith 
in  the  master,  I  conceive  that  he  is  dis- 
jiensed  from  all  responsibility  in  regard  to 
such  impiiries.  Thus  if  he  should  be  de- 
ceivcd  in  making  advances  for  repairs,  or 
supplies  for  imaginary  injuries  or  losses 
at  sea,  which  lie  could  have  no  means  of 
knowing  or  tracing,  but  which  the  master 
and  crew  fraudulently  pretended  to  exist 
[such,  we  would  instance,  as  the  pre- 
tendeil  loss  of  bis  boats  at  sea,  when  they 
h.id  been  fraudulently  parted  with],  I  pre- 
sume that  lie  would  be  enabled  to  recover 
against  i\w.  owners  I'oi' icasoiialde  advances 
inad(!  by  him  to  rejiair  such  injuries  or 
su[ndy  such  losses.  But  where  the  cred- 
itor could,  by  due  diligence,  ascertain  the 
necessity  of  the  repairs  or  supplies,  then, 
under  such  circumstances,  if  he  makes  no 
iniiuiiie.s,  and  no  such  necessity  in  fact 
exists,  ho  will  have  no  claim  upon  the 
owner."  But  all  this  is  consistent  with 
the  ])rin(;iple  that  the  burden  ol  proof  is 
on  the  ])1aintiff  to  show  atlirmatively  that 
lie  sujiplied  necessaries  to  the  master  for 
tho  ship,  as  the  burden  of  pioof  is  on  the 
purcha.ser  of  the  ship  or  cargo  to  show 
the  nec(>.ssity  for  the  sale. 

In  a  note  to  1  B(drs  Com.,  556,  we  find 
tho  case  of  Carey  i-.  White,  5  Bro.  P.  C. 
325,  referred  to,  in  which  it  is  stated  that 
in  two  several  trials  (one  at  bar)  on  the 
issue  ordered,  verdicts  were  given  that 
nothing  was  necc.inarily  laid  out,  and  so 
Carey's  suit  was  dismissed. 


' 


tl 


111: 


264 


COMMENTARIES  ON   SALES. 


[book  II. 


the  necessary  purposes  of  the  ship  while  she  was  at  Quebec,  to 
which  port  she  had  gone  in  search  of  a  cargo.  The  ship  was 
consigned  to  R.  &  Co.,  at  Quebec,  and  the  defendants  sup- 
plied them  with  funds,  anl  authorized  and  instructed  them,  as 
their  agents,  to  advance  any  further  sums  for  the  purpose  of  sup- 
plying the  necessities  of  the  ship  for  her  voyage.  The  defend- 
ants had  forbidden  the  captain  from  applying  or  pledging  tiicir 
credit  to  any  other  persons  than  R.  &  Co.,  in  respect  of  the  shi|)'s 
necessaries.  The  plaintiff  was  ignorant  of  this,  and  of  the 
fact  that  R.  &  C'>.  were  the  defendants'  agents ;  but  the  jury 
found  that  he  might,  by  making  ordinary  inquiry,  have  ascer- 
tained the  fact  that  R.  &  Co.  were  the  defendant's  agents  fi>r 
the  purposes  of  the  ship.  R.  &  Co.  were  ready  and  willing  aiul 
able  to  advance  any  sums  which  might  have  been  necessary  for 
the  purposes  of  the  ship.  The  verdict  was  entered  for  the  plain- 
tiff, with  leave  reserved  for  motion  to  enter  it  for  defendants. 
On  rule  granted,  Benjamin,  Q.  C,  on  showing  cause,  claimed  that 
the  master,  as  general  agent  for  the  purposes  of  the  ship,  had 
power  at  a  foreign  port  to  pledge  the  owner's  credit  for  necessa- 
ries ;  and  that  the  fact  of  the  owner  having  an  agent  at  the  for- 
eign port  to  furnish  the  necessaries,  would  not  affect  the  right  of 
any  one  else  furnishing  necessaries  to  the  master  to  recover 
therefor  from  the  owner.  The  court  (Brett  and  Dcnman,  JJ.) 
held  the  reverse.* 


1  Thft  case  was  put  by  Dcnman,  J.,  as 
one  of  (ir.st  instance.  Ho  says:  "  In  all 
the  statements  of  tlio  law  of  tlic  subject, 
it  scents  always  to  be  assunieii  tliat  it  is 
well  settled  tliat  the  captain  lias  no  au- 
thority to  pledge  the  owner's  credit  when 
ho  has  ait  authorized  agent  in  the  port. 
Though  there  is  no  actual  c:ise  deciding 
the  jKiint,  all  the  eases  scent  to  (orrubor- 
Bte  this  view."  At  i*.  ;iH8.  Thi;  conten- 
tion of  tlie  counsel  fur  the  plaintilF  was 
thus  disposed  of  by  Brett,  J.:  "It  was 
said  tiia'  the  captain  is  tiie  general  agent 
v'>f  the  ov.  ;icrs.  That  proposition  cannot 
be  sup|>orted  in  the  fullest  .sense  of  the 
terms  in  which  it  was  stated.  Tlie  captain 
has  autliority  to  bind  the  owners  to  pay 
for  supplies  or  repay  money  advanced, 
only  when  the  necessity  of  tlie  case  gives 
him  that  authority  In  order  to  give  rise 
to  that  authority  it  has  for  tnany  years 
been  recf)gnized  that  two  tilings  are  neces- 
sary ;  first,  it  must  appear  that  the  money 
borrowotl  or  goods  su)>|ilied  were  necessary 
for  the  uso  of  the  ship,  not  absolutely 
necessary,  but  reasonably  necessary  ac- 
cording to  tile  ordinary  course  of  prudent 
conduct,  in  the  opinion  of  the  Jury  ;  2dly, 
it  is  not  KUllicient  that  the  moneys  lent,  or 
goods  supplied,   were  necossury  for  the 


.ship's  use,  but  it  must  be  shown,  also, 
that  it  was  reasonably  necessary  that  the 
captain  should  obtain  or  onlcr  tlniii  on 
the  owner's  credit.  If  the  captain  lie  in  a 
foreign  jiort,  and  the  owner  is  not  tlnTe, 
and  there  is  no  agent  of  his  there,  and  tlif 
captain  has  not  been  himself  |)ui  in  tiiii(l.s 
by  the  owner,  then  it  may  be  rca^iiii.ilily 
necessary  that  he  should  order  sniiphis  uii 
the  owner's  credit  for  the  necessary  jmr- 
jKtses  of  the  ship,  as  in  the  case  nf  I'M- 
wards  v.  Havdi,  14  C.  H.  107  ;  2:5 1.  .1 
C.  1*.  8  ;  but  if  no  is  either  in  a  jiort  in 
the  owner's  e(uintry,  or  a  foreign  port, 
and  the  owner  is  there  witii  means  to  pay 
for  goods,  orcnidit  to  order  them  for  liiiii- 
se't',  the  owner  is  tlie  master  of  iill'airs, 
and  there  is  no  necessity  for  the  cajitain 
to  order  them  or  to  jijedge  tlie  owni'i's 
credit;  and  so  there  is  no  iiecessifv  fortl.i' 
caittain's  making  a  contract  to  liiid  tiw 
owner.  Accordingly,  if  it  be  found  tlwt 
the  owner  is  present  at  the  port,  aud  liiW 
the  means  or  credit  to  obt.iiii  suiiplies  I 
think  it  is  the  law  of  Knglaiul  that  tlu' 
judge  should  direct  the  jury  tliat  tlnriMS 
no  necessity  for  any  autliority  on  ilie  pnrt 
of  the  captain,  and  the  jury  would  ii>it  l* 
justified  lit  finding  that  ilieie  wi<  any 
such  necessity.    The  :><tuie  piiiici[>le  up- 


PART  IV.]  SHIPMASTFRS   AS   AGENTS  OP   NECESSITY. 


265 


Where  a  master  sold  a  vessel 
was  adiuilted,  did  not  authorize 

plies  even  \vli"n  the  owiiur  ; '  not  present, 
if  liH  has  citliiT  in  a  jiort  in  his  own  or  a 
foreij;ii  loiiiitry  I'dustitutfil  an  aiieat  to 
stand  ill  hi"*  Jilaif,  and  intrustt'd  such 
ai'i'iit  with  his  ilisiirtion  to  act  in  the 
riwiiiii.'iiiH'iit  "f  thf  shij),  and  such  ap'nt 
Iws  iiiiiltitakcii  and  has  tlie  ni'cu.ssiiry 
nii'ans  ov  i'ir<!it  to  (hi  so.  In  such  ca.s- 
tlie  ai,'i'Mt  ic|ircs('nts  tlic  owner,  and  thu 
caiituiii  a.s  ■;;;'.'int  ol  tin'  owniir  is  bound 
.  to  ai  t  Ml  li'r  his  diri'ctions,  and  has  no 
aulliiiii'y  III  a>'t  Tor  hiniscll  in  the  matter." 
For  lunlicr  cases  aii|ilicalih'  to  the  point 
involved,  see  Arthur  v.  Barton,  •)  M.  & 
W.  l;iS ;  (inuil  V.  Norway,  lo  '  .  B.  CtJ;')  ; 
ThP  Failhrul,  ■il  L.  .1.  (i'.  M.  vv  .A.)  81  ; 
Johns  r.  Syiiiiiiis,  "J  (,).  B.  42;') ;  Tlie  Ah^x- 
anilcr,  1  W ■  lloh.  ;J4»i;  Brayshaw  r.  F;iton, 
14  C.  H.  111?  ;  Kdwards  i-.  Ilavell,  14 
C.  15.  Iii7  :  -Maekiiitosii  v.  Mitel, eson,  4 
Kx.  17'i;  \Villia7nson  v.  I'aije,  ]  C.  &  K. 
581;  IVh-terr.  la'ekanip,  4  B.  Jii,  Aid.  ;i.')2  ; 
Ilk'  Hi-a,  I,.  U.  ;i  Ad.  &  Ke.  f)l»>  ;  Mac 
ri'ady  r.  Thnrii,  .'.1  N.  Y.  A)i.  Cas.  4.'i4  ; 
KoliinsiiM  r.  Lyall,  7  Price,  .'i'.t'i  ;  Borher 
V.  liiishcr,  'J  Stark.  \17  ;  I'alnier  i'.  (looch, 
'.'."^tark.  4'JS  ;  Kvans  r.  Williams,  7  T.  li. 
481  n.  ;  .Milward  r.  llallett,  i>  Cai'ies,  77  ; 
T1h>  I  lilted  Ins,  Co.  V.  Scott,  1  Johns. 
106,  111  ;  iJeade  v,  (  (iHnieriial  Ins.  Co., 
3.1nl;ns.  :f.VJ  ;  Ward  r.  Creen,  H  Cow.  173; 
Waiiiwiiulit  V,  ('rawfiiiii,  3  Yeates,  131  ; 
Uo.ss  V.  The  Active,  '.i  Wash.  22i!,  236. 

in  The  Ceiieial  Smith,  4  Wheat.  43S, 
the  law  is  thus  l.iiij  down  as  to  a  lien  on 
a  diip  I'or  iiece  saries  furnished  ;  "  Where 
rt|iaiis  have  n-er.  made,  or  necessaries 
have  lieeii  luriiished  to  a  foi'eij^n  >lii|i,  or 
to  a  ship  ill  a  iiiirt  of  the  State  to  whicii 
she  (lues  lot  liclom,',  the  j,'eiieral  maritiino 
law,  fi)li(nviii<r  till'  civil  law,  f,'ives  the 
jiaity  a  lien  on  tlie  slii|i  ii.-clf  fcir  liis 
security  ;  and  lie  may  well  maintuin  ii 
suit  (ii  1VIII  in  the  admiralty  to  enforce 
his  rij;ht.  I'.ut  in  respect  to  repairs  and 
Ut'ei'Sviijes  ill  the  jMiit  or  ."^tate  to  whiidi 
the  ship  lieli)n^;s,  the  ease  is  f,'nverned 
altogether  iiy  the  inuiiicipal  law  of  that 
Stale;  and  im  lien  is  ini|died,  unless  it  is 
reeo;,'iii/e(l  hy  that  law.  N'ow  it  lias  heeii 
lonf;  Mttle.l,'  wh.'thcr  orlt,oially  upon  the 
soiiiicle.st  |irliiciples  it  is  now  too  late  to 
iiii|iiiie,  that,  liy  the  coinnion  law,  ma- 
terlal-iiieii  and  mechanics  furnishini» 
repairs  to  a  domestic  ship,  have  no  jiar- 
licnlar  lieu  upon  the  ship  itstdf  for  tho 
rcfovi  ly  of  tlieir  demands.  A  shipwri.jht, 
indoeil,  who  has  taken  a  ship  into  his 
iKissesMoi,  to  repair  it,  is  not  bonnil  to 
part  with  the  pos.session  until  he  is  paid 
for  the  repairs,  any  more  than  any  otiier 
wtifieer.  But  if  he  has  once  parted  with 
the  iHisses-sioii,  or  has  worked  upou  it  with- 


under  circumstances  which,  it 
the  sale,  it  was  sought  by  the 

out  takiiijf  possession,  he  is  not  deemed  a 
privilejjed  creditor,  having  any  claim  upon 
the  ship  itself." 

Wo  state  the  prim;ii)les  of  .sonic  of 
the  'ainierous  ca.ses  deci  led  in  the  Ameri- 
can courts  on  iiuestions  relaliiifj  to  the 
authority  of  the  shipmaster  to  hind  the 
ship  and  earf,'o,  the  owners,  and  othere 
concerned,  at  the  home  ])oi  t,  ai'd  at  fi^reigu 
port.s,  respectively. 

The  case  of  Stearns  i'.  Doe,  78  Mass. 
482,  was  a  case  where  a  vessel  was  owned 
in  New  York,  and  money  was  advanciU 
to  th.!  master  in  Boston  to  jiay  olf  the 
oHicers  and  crew,  there  heinn  no  consif^nee 
or  agent  of  the  owners  there,  and  the 
States  in  this  country,  with  respect  to  the 
application  of  the  law  in  the  matter,  being 
treatecl  as  foreign  to  each  other.  The 
court  helvl,  in  accordiince  with  the  KngliAh 
d(!cisi')ns,  that  the  authority  of  a  master 
to  borrow  money  in  a  foreign  jiort,  on  the 
credit  of  tlie  owner,  in  his  abf.ence  and 
where  there  is  no  agent  or  consignee  of 
the  vts.sel,  is  clear  and  nm|uestionable. 
The  limitation  on  this  authority  iseijually 
clear.  The  money  must  bo  necessary  for 
the  vessel  ;  that  is,  it  must  bi;  reunired 
for  purposes  which  a  prmUnl  peixr,  lUl 
deem  to  be  reasonably  ht  and  proper  under 
the  ciivumstai.ees  in  which  the  vessel  is 
placed.  But  it  is  not  coricet  that  a  master 
can  in  no  case  borrow  on  tlie  ciidil  of  the 
owner  to  jiay  an  (xisting  liubility,  or  a 
debt  already  incurred.  There  may  lie 
such  a  limitation  on  his  authoiity  where 
repairs  have  been  done  or  supplies  fur- 
ni.sli.  d  on  the  personal  credit  of  the  owner, 
and  without  any  stipulation  for  payment 
ill  ready  money.  I'mIcIoh  r.  C.i  i  jii.ell,  6 
V.X.  83t!.  lint  no  such  re-tii'tioii  in  the 
iiower  of  the  master  exists  u  here  a  debt 
lias  been  duly  contracted,  which  e(msti- 
tutes  a  lien  on  the  vessid  or  cargo,  capable 
of  immediate  enforcement  ill  a  foreign 
port.  (In  the  contrary,  in  sikIi  cases  the 
master  wouM  have  p(;wcr  to  L'ive  a  pledge 
of  the  Vessel  by  way  of  iiiittiiiiiiy,  and  a 
fiirtiori  to  pie(li.'e  the  personal  i  rcillt  id'  the 
owner  of  the'  vessel.  The  Alexander,  1 
Dod.  28(1;  The  Vibiiia,  1  W.  b'ob.  1. 

'i'he  (|uestions  whether  the  money  is 
necessary  under  thciiiciinistain  is  in  which 
the  ve.s.sel  is  sitiiateii  at  the  time  of  the 
loan,  and  whether  the  master's  position  i.s 
such  as  to  constitute  him  the  aiitborized 
ajrent  of  the  owner  to  Ixtrrow  mo  n'y,  are 
for  th.e  consideration  of  the  ji'ry.  Johns 
V.  Simons  2  A.  &  K.  v  s:.  i'S' ;  Arthur  ». 
Barton,  'JM.  &  W.  138. 

A  vessel  left  New  Orleans  for  Tampieo, 
Mexico,  and  when  within  about  siv  miles 
of  her  destiiiution    grounded  oi.  a  bnr, 


;'»;;■ 


«  ■ 


ih. 


266 


COMMENTARIES  ON  SALES. 


[book  II. 


purcliasers  to  sustain  their  title  on  the  ground  that  the  owners, 
the  libel lants,  by  their  abandonment  of  the  vessel  to  the  under- 


I J 


She  was  lightened  and  got  off  with  slight 
damage.  Tlie  coinnuinicatiou  between 
Taniiiico  and  New  Orleans  was  constant 
and  easy.  The  master,  without  waiting 
for  any  instructions  from  the  owners  or 
underwritiM's,  had  a  survey  held,  the  sur- 
veyors advising  a  sale.  The  vessel  was 
valued  at  .'$10,000,  and  was  insured  for  that 
amount.  She  rcalizi!!!  ij3200  ;  one-half  of 
which  was  paid  l>y  the  master  to  salvors, 
who  had  expended  in  their  work  about 
$250.  The  master,  without  waiting  for 
authority,  had  submitted  the  claim  to  arbi- 
tration. The  purchaser  put  in  a  temi^r- 
ary  rudder  at  the  expense  of  alrout  §100, 
and,  the  vessel  being  perfectly  tight,  saihnl 
her  to  New  Orleans,  and  had  her  thor- 
oughly repaired  there  at  a  cost  of  alwut 
$800.  The  owners  claimed  for  a  total 
loss,  and  tendered  an  abandonment,  whicii 
was  rejected.  Tiie  plaintitfs  liaving  brought 
an  action,  on  judgment  of  nonsuit  against 
them,  ajijii-aled,  claiming  that  they  were 
entitled  to  recover  for  a  total  loss,  in  con- 
.se(pienco  of  the  vessel  having  passed  from 
them  by  a  necessary  and  justiliablo  sale. 
The  court  held  thit  it  was  not  the  mere 
fact  of  a  sale  by  the  master  which  entitles 
an  assured  to  abandon  ;  but  the  ship's  being 
reduced  to  such  a  state  as  to  justify  the 
sale.  And,  further,  that  the  master's 
submission  of  the  ipiestion  of  salvage  to 
arl)itration  was  without  authority  (see 
Housemain  v.  Schr.  North  Carolina,  15 
Pet.  4'))  ;  tiiat  the  advice  of  the  surveyors 
or  their  opinion  was  n<)t  coin'lusiv(?  (see 
Gordon  v.  M;iss.  Fire  &  M.  Ins.  Co.,  2 
Pick.  2tJ4)  ;  that  the  muster  should  have 
brought  tlio  vessel  to  New  Orleans  for 
re|):iirs  (s((o  Hall  y.  Franklin,  9  Pick. 
•'67) ;  and  that,  as  there  was  nothing  in 
the  distance  from  the  scene  of  disaster, 
or  in  the  pressing  imminence  of  the  danger, 
to  prevent  the  master  from  communicating 
with  tli(!  owners  or  nnilerwriters,  the  sale 
was  unnecessary  aid  unjustitial)le  ;  and 
thc^  judgment  wasatlirnii'd.  Peck  i'.  Nash- 
ville Mar.  &  Fire  Ins.  Co.,  6  La.  Ana. 
148. 

Ill  general,  the  master  has  no  authority 
to  sell  the  ship.  Tiiere  is,  however,  an 
exception  t(»  this  rule,  when  she  meets 
witli  a  disasti'r  wliicli  renders  it  necessary 
to  sell  hi'i',  ill  order  to  save  a  part  of  her 
value,  rather  than  to  run  the  risk  of  a 
total  loss.  Tile  master's  right  to  act  in 
such  an  emergeni'V  arises  from  the  neces- 
sity of  acting  bei'ore  the  owners  can  bo 
consulted.  Ffc  acts  for  them,  because  they 
have  no  op])ortuiiity  to  act  for  themselves. 
If  they  are  present,  bis  authority  to  sell 
ceanus.     He  is  bound  to  exercise  the  same 


di.seretion  that  an  uninsured  owner  or 
agent  of  the  underwriters  would  exori'JM. 
if  present.  Hence  it  is  his  duty  to  iiutifv 
the  parties  interested  of  the  disaster,  when 
it  can  seasonably  bo  done,  that  tiny  nmv 
send  him  instructions,  or  be  picvnt  to 
judge  of  the  situation  for  tlu'iii«'|ves. 
When  their  discretion  may  be  culKid  juto 
exercise,  there  is  no  occasion  I'ur  the 
master  to  exercise  his  ;  there  is  no  iieoc*. 
sity  for  him  to  sell,  when  they  may  jmK' 
of  the  necessity  for  a  sale  tlK•lllselve^. 
The  chance  of  recovering  the  vessel  is 
worth  as  much  to  the  owners  as  it  is  to 
the  purchasers.  They  have  a  lii^iit  to  the 
benelit  of  the  choice  of  the  alUfiiiativesot 
risking  or  selling  her,  when  tiuie  is  an 
op])ortunity  for  the  master  to  give  them 
seasonal)le  notice  of  the  disaster ;  mid  lit 
cannot  devest  them  of  this  right.  Nor  is 
it  necessary  that  the  master  slioiiM  Iraiidii. 
leiitly  neglect  to  give  such  iintiii',  to  in- 
validate the  sale.  It  is  the  iiiasli  r's  duty 
to  use  the  earliest  means,  ordinarily  avail- 
able, to  convey  intidligence  of  the  disaster 
to  his  owners,  when  they  may  llms  Ite 
reach(>d  in  season  to  act  before  the  sale; 
and  if  he  neglects  to  do  this,  cither  from 
indilferenco,  earidessness,  or  igiiuiaiu'e  of 
duty,  tho  sale  will  be  void  as  to  siidi 
owners,  r.at(!s  v.  Thompson,  ,'.7  .Me.  -lli; 
Ninv  Knglaiid  Ins.  Co.  v.  The  .Sarah  .\nn, 
13  Pet.  387  ;  Amciican  Ins.  Co.  v.  Ciiilii, 
4  Wend.  55  ;  Hallo.  Franklin  Iii>.  (•o.,it 
Pick.  4()t5  ;  lirvant  t'.  CoimiKjiiwcaltli  Ins, 
Co.,  l;{  Pick.  'r,r.\;  Pierce  v.  (K<-.m  h\<. 
Co.,  18  Pick.  83  ;  Stephenson  v.  PisLataqiiis 
Ins.  Co.,  54  .Me.  55. 

And  part-owners  of  a  vessel  aiv  not  lo- 
partners,  but  tenants  in  coniiiion.  Ntitiie 
to  one  part-o  vner  is  not  notice  toaiiotln'r, 
nor  has  one  part-owner  any  right  to  >ell, 
or  authorize  a  consent  to  the  sah' of  the 
interest  of  his  associate  ])art-owiii'r.  The 
tluty  of  the  master  to  give  the  iiotiee  in 
question  extends  to  all  the  part-owners 
within  his  means  of  inti'ivoiiiiiniiiiiation. 
Ami  if  the  master  sell  the  whole,  when  h" 
has  authority  to  sell  only  a  part,  the  sale 
will  be  valid  as  to  that  part,  and  void  as 
to  this  rest.  (Jates  c.  Thoinpson,  ,")7  .Me- 
44'2,  4 to,  f/  ftc/.  ;  Pierce  v.  O.eau  Ins. 
Co.,  18  l'i"k,  83. 

It  was  held  in  Pentz  v.  Clark,  41  M.l. 
327,  that  the  cpiestion  as  to  the  iiithoritv 
of  the  master  to  jdedge  the  credit  of  the 
owner  for  necesnary  supplies  and  ie|iairs 
rests  upon  and  must  be  determined  hy  the 
general  priii(d|des  which  goviTii  I  he  law  nf 
agency.  To  a  certain  exli'iit  at  le;Ht  tlif 
master  is  and  must  necessarily  1"'  treated 
as  the  ujjent  of  the  owner,  and  us  nA 


Mm^ 


BOOK  II. 

owners, 
3  under- 

owner  or 
iM  exori'iw 
ty  to  notify 
iistiT,  when 
t  llii-y  nuiy 

I'lVMMlt  to 

tlu'MiM'lves. 

cuUtitl  into 
m  tor  the 
s  no  necc>. 

ni;iy  judgo 
tliuiuselve.-, 
K'     Vl'SSl'l    i^ 

Its  it  is  to 
linlit  to  tlif 
Lttniatives  of 

tliiif  is  ail 
0  i^ivi'  tlu'iii 
itrl'  ;  mill  he 
,'lit.  Nnris 
Diil'l  inmilu- 
lotii.'''.  to  in- 
lastiT's  iliity 
inaiily  avail- 
;'  till'  iliMVitw 
nay  thus  tie 
ore  till'  sale; 
,  citluT  from 

ignmanoe  of 
^   as   to  such 

r.7  Mo.  Ui ; 
Saiah  Ann, 

V.  C'l-nlrl, 

li,~.  ro.,i* 

althlns, 

(Inall  luv 

ri-.i.atai|uis 

luv  nut  I'o- 
lon.     N'otiie 

tcianotli'T, 
.,'lil  M  sell, 

sail'  of  the 
iwinT.    The 

•    liotin-  ill 

i,ut-iiwuers 

imuiiiiatiu". 

wlo'U  he 

.ait.  till'  sale 

mill  voiil  as 
iisi.ii,  :>!  Me. 

().  .all  Ins. 

larK,  41  Mil. 
Uv  aiithoritv 


PART  IV.]  SHIPMASTERS  AS  AGENTS   OP   NECESSITY. 


267 


writers,  affirmed,  by  way  of  ratification  or  estoppel,  the  title  of 
the  claimant.    The  court  held  that  nothing  but  extreme  necessity 


llUVi 


v.ht  of  the 

airl   li'!«''" 

niln-il  I'V  the 

111  till- law  "f 

,t    llM't  til* 

ly  li,.  treatt'il 
and  iid  s"^''' 


tlothed  with  iiiitliority  to  do  whatever  may 
I).'  loii^idi'ivil  fairly  to  bo  within  tho  scope 
of  liis  a[i[ioiiitint'nt.  Ho  nnist,  of  course, 
liavf  till'  [lowiT  to  do  whatever  may  be 
lU'CiK-sari/  t"  enable  him  to  jirosecute  the 
vova},'!'.  I  f  lie  should  bo  in  a  foreign  port, 
anil  ii|i.iiis  are  necessary  to  be  done,  and 
tlie  owner  is  not  there,  and  has  no  agent 
tlieu'  aiitlioiizeil  to  act  for  liini,  the  master 
must  liiiiii  the  necessity  of  his  position  bo 
(oiisiiliivd  as  having  the  authority  to  or- 
ihr  sinli  repairs  to  be  done.  But  in  the 
'■inii'  port,  where  the  owner  resides,  where 
..:  can  lie  consulted,  and  where  he  can 
|iers(ui.illy  interfere,  no  such  necessity  ex- 
ists, ami  iliere  is  no  reason  why  the  master 
siioiilil  pli'il^'e  his  credit  even  for  ncce.s.sary 
ivpaiis  without  special  authority.  See  to 
the  same  ellect,  (iunn  V.  Uoberts,  L.  11. 
y  ('.  1'.  ;i:il;  Arthur  v.  liarton,  6  M.  &  W. 
141' :  .Mvi'is  r.  Willis,  17  C.  H.  KW  ;  18 
('.  B.  Ss7;  .Miteheson  v.  Oliver,  5  K.  &  B. 
414;  Heriianl  v.  Aaron,  11  C.  B.  X.  .s.  88l»; 
llil,l.>  r.  Hiiss,  L.  R.  1  Q.  B.  .-.34  ;  The 
Tronba.loiir.  L.  H.  1  Ad.  &  Kc.  303  ;  The 
(;ivat  Kastirii,  L.  It.  2  Ad.  &  Kc.  88  ; 
Siliiioiier  Kieeinan  v.  Buckingham,  18 
llinv.  IS'-*;  Thomas  v.  Osborn,  19  How.  22; 
Morj^an's  As>ii,'ne(s  i.-.  Shinn,  15  Wall.  110; 
llowanl  V.  (tdi'll,  1  Allen,  8;">;  Blanchard 
V.  Kiaiiii-,',  4  Allen,  118  ;  Webb  v.  IViree, 
1  Ciiit.  104  ;  .Mavo  v.  Snow,  2  Curt.  102  ; 
.Ma.'V  r.  Wliei'ler',  30  N.  Y.  241  ;  lieonis 
I',  f.i'wis,  2  I'aiiie,  t'ir.  Ct.  202  ;  Stedman 
r,  l-'(i.iii  1-,  2.'>  I'.arb.  605  ;  The  PIkcIk',  1 
Waiv,  'Jijit.  Ami  the  fact  that  the  master 
was  ]iart-invner  at  the  time  does  not  confer 
upon  liiin  any  greater  authority  to  pledge 
the  eiiilit  (if  his  co-owners  for  work  done 
ami  III  iterials  furnished  tin?  vessel  without 
tliiii  autlinritv.  I'lntz  v.  Clark,  41  Mil. 
327;  Cales  v.  Tinuiipson,  57  Me.  442; 
lli'lnii'  r.  Smith,  7  Hing.  70!». 

In  The  Uiiliert  I,.  Lane,  1  Lowell,  388, 
the  jiiiwer  of  the  master  to  hypothecate 
the  vis^,.]  was  upheld,  where  he  had  coin- 
niuniiatiil  with  his  owners,  ami  they 
tliioiiijli  tluir  silence  and  neglect,  alter 
full  ainl  sutlji'ieiit  ciiniinunicatioii  li.-nl  been 
inaile  III  tlii'lii,  left  him  no  alleiiiative  but 
to  sill  111  liypotheiate.  The  court  held 
that  tlnir  silence  and  neglect  authorized 
him  to  lake  sui'h  measures  as  were  most 
i'V|ie.!i.'iit.  and  such  lis  a  iirudent  master 
woiiM  take  who  could  nut  eommunieate 
with  his  Dwiii'is  ;  that  as  liis  alternative 
Was  til  M'll  or  hypothecate  it  (!ould  not  In; 
inaiiitaiiied  that  lie  had  a  more  amjile  ilii- 
jilii'il  power  to  .sell  than  to  hyiiotheeate. 
•Ill  the  coiitrary,  tiiey  held  lie  had  less; 
"  for  liypiitheration  on  its  face  is  a  saeii- 
fiec  of  part,  while  a  sale  usually  saurilices 


the  whole. "  But  the  master  cannot  pledge 
a  vessel  by  giving  a  bottomry  bond  for 
money  borrowed  for  repairs  when  the  own- 
ers of  the  vessel  are  iiresent  at  the  jdace 
where  the  repairs  are  made,  or  where  he 
has  funds  of  the  owners  for  the  purpose 
which  he  has  not  n.sed.  I'atton  v.  The 
Schr.  l!anilol]iii,(;ilp.  (I)ist.  Ct.)  457.  See 
Tunno  t:  Ship  .Mary,  15ee's  Ailiii.  U.  (a.  i». 
1785)  120;  Sloan  v.  .«!liip  A.  K.  1.,  Boe, 
250;  Turnimll  v.  The  Knterprise,  Bee,  345. 

In  uii  action  broiiglit  to  recover  the 
value  of  a  chronomet"r,  let  in  New  York 
to  a  vessel  belonging  to  Maine,  it  was  laid 
down  that  the  master  is  the  agent  of  the 
owners  for  the  purpose  of  obtaining  repairs 
and  supplies  for  the  ship  in  a  foreign  port 
in  the  absence  of  the  owner,  but  his  au- 
thority as  such  agent  is  not  nnlimited. 
He  can  only  procure  such  supplies  and  re- 
J)airs  as  are,  properly  speaking,  necessary 
for  the  ship  ;  that  is,  the  repairs  and  su)"- 
plies  are  to  lie  such  as  are  rea.sonably  lit 
and  proper,  having  regard  to  the  exigen- 
cies and  re(|uirenieiits  of  the  ship,  for  the 
port  where  she  is  lying  and  the  voyage  on 
which  .she  is  Ixinnd.  The  Fortitude,  3 
Si.mn.  233  ;  Kdwards  v.  Ilavell,  14  C.  B. 
107;  Miteheson  v.  Oliver,  5  Kl.  &  Bl.  41t». 

It  is  nowhere  said  that  this  authority 
of  the  master  is  limited  to  the  ]iurehase  or 
procurement  of  any  particular  kind  or  class 
of  supplies.  On  the  contrary,  it  is  uni- 
formly held  that  it  embraces  everything 
which  a  prudent  man  w<mld  (lei-m  proper 
and  necessary  to  be  done  m  supplied  un- 
der the  circmnstanees.  The  true  and  only 
test  by  which  to  determine  whether  the 
master  has  acted  within  the  limits  of  hi.s 
authmity  is  to  ascertain  whether  the  arti- 
cles or  supplies,  whatever  may  be  their  na- 
ture, were  necessary  under  the  ciicumstan- 
res  in  whii'h  the  vessel  was  placed.  No 
abstract  rule  can  be  laid  down  by  which 
certain  articles  designed  and  iiiteinled  for 
the  use  of  the  vessi'l  ale  in  all  cases  to  bo 
included  as  coming  within  the  authority 
of  the  master  to  |iid(iiie  on  the  rieilit  of 
his  owners,  and  others  are  to  be  cxiluded 
as  fiilliiig  without  the  limits  of  sucli  au- 
thiiiity.  The  necessity  may  vary  accord- 
ing to  the  ciicuiiistalices  of  each  particular 
case,  and,  when  called  in  (|uestion  in  an 
action  at  law,  it  can  only  be  deieriiiiiied  by 
a  jury  on  a  i-ousideratioii  of  all  the  facts 
which  go  to  make  u]>  the  exigencies  and 
rei|uirenients  of  the  vessel  at  the  time  the 
articles  were  procured  and  the  credit  given. 
Bliss  V.  Hopes,  !tl  Mass.  33!t,  3tl. 

The  following  additional  cases  further 
exemplify  tlie  jirinciples  governing  the 
powers  of  a  shipniastir  to  bind  the  ve.s.sel, 


268 


COMBIE^NTAT'IES  ON  SALES. 


[book  II. 


I 


:i,':f; 


could  justify  the  sale  of  the  vessel  by  the  master.    The  abandou- 
Hicnt  was  based  on  the  damage  done  to  the  vessel  at  the  time  of 


cargo,  owners,  and  all  concerned,  by  his 
acts  ill  a  I'urui'rn  port  for  necessaries,  by 
hypotliccation,  u'kI  bv  sale.  Crawford  v. 
The  William  Pcnn,  '3  Wash.  484  ;  The 
Aiuui'iuan  Ins.  Co.  o.  Coster,  3  I'aige,  323; 
Ross  V.  Tiw.  Sliip  Aotivi',  '2  Wasli.  226 ; 
Keade  v.  Tlio  Coinuiercial  Ins.  Co.,  3 
Joiuis.  352  ;  The  Hark  Herald,  8  Bened. 
409  ;  Barker  v.  York,  3  La.  Ann.  90  ; 
Webb  V.  Pierce,  1  Spnigue,  192  ;  The 
Lulu,  1  Abliott  (U.  S.),  191 ;  Selden  v. 
Hen.lriikscn,  1  Hioiik.  396;  The  Never- 
sink, .'»  Blatch.  39:  The  Jeanie  Laudlos,  17 
Fed.  Hop.  91;  Desiiadillas  v.  Harris,  S  Mo. 
296  ;  WhittfU  V.  Tisdale,  43  Mo,  451  ; 
Leddo  t>.  Hughes,  15  111.  41  ;  .lames  v, 
Bixby,  11  Mass.  34  ;  The  Brig  Kledona, 
2  Bened.  31;  The  Brig  Jacmel  Packet  and 
her  Cargo,  2  Bened.  107  ;  The  Steamboat 
Wasliington  Irving,  2  Bened.  318,  323. 

The  principle  relating  to  tlie  master's 
authority  to  contract  for  supplies  and  re- 
pairs at  tiie  home  port  is  quite  dilFcrcnt 
trom  that  governing  his  powers  at  a  for- 
eign port  ;  tlie  nature  of  his  agency,  from 
the  ditrt'riiig  circumstances  surrounding 
him,  being  of  a  diircrcnt  and  nuich  more 
restricted  character  where  the  owners  of 
the  vessel  are  present  to  act  for  them- 
selves, a  I  1  therefove,  do  not  as  necessarily 
nor  usually  to  as  great  an  extent  recpiire 
the  action  of  the  master,  as  where  they  are 
distant  iVom  the  scene,  ami  have  no  power 
to  act  for  themselves.  Thus,  the  master 
has  not  usually  authority  to  pledge  the 
credi*-  of  till!  owner  for  necessary  repairs 
made  at  the  home  port,  where  the  owner 
resides  and  can  be  consulted,  and  can  per- 
sonally inlei  fere,  unless  the  owner  has  held 
out  the  UMstcr  as  having  such  authority, 
or  has  ratilicd  his  contracts.  The  reason 
of  this  is  that  the  foundation  and  nature 
of  the  authority  of  the  master  arises  from 
the  rei|uir('mciits  of  the  peculiar  and  re- 
sponsible duties  of  his  position,  and  his 
authority  must  bo  commensurate  with 
those  ilutics.  Wh(^n  the  reason  for  his 
authority  disa])pcars,  then  his  authority 
ceases;  therefore,  the  authority  of  tho  mas- 
ter to  bind  the  owners  of  the  vessel  is 
more  (■xtfiisiv{!  abroad  thar  ni  a  homo 
port.  Ill  foreign  ports  (ai'.i  ports  of  States 
othiM-  llhiii  wlii'ie  the  v-  ssel  belongs  are  ('or 
that  purpose  cons'  Icred  fjiei};ii  jwiii  •;  i*  is 
unlfonnly  liclc'  that  the  muster  has  an- 
thoiity  to  c  iiitract  on  the  mvilit  of  the 
owner  for  .lUch  sup',)lies  and  .•eiiaiis  as  are 
reasoi'.oly  lit  and  proper  for  the  ship  and 
the  voyagi'.  This  authority  arises  fiom 
the  necessity  of  procuring  the  supplies, 
the  absence  of  the  owner,  and  the  pre- 
sumption that  if  he  had  been  consulted 


he  would  oa  a  pnident  man  have  ]irocured 
them,  and  would  not  have  allowed  the 
voyage  to  be  broken  up  or  the  .ship  to 
sutler  for  want  of  them.  It  is  only  so  far 
and  just  to  the  extent  that  the  reason  and 
necessity  for  such  authority  ceases  in  j 
home  port,  that  the  authority  of  the  mas- 
ter IS  restricted.  It  is  no  inllcxibli)  rule 
arising  from  statutory  legislation  or  any 
question  of  jurisdiction,  and  the  lestric. 
tion  should  not  be  pushed  farther  tljaii  the 
reasons  of  it  require.  When,  thcicfore, 
although  the  port  where  materials  or  sup- 
plies are  furnished  may  Iw  in  one  seiisi-  a 
home  port,  if  it  is  not  the  port  wlicic  the 
owner  resides,  and  if  he  is  not  within 
easy  ac(;ess  of  it,  and  the  repairs  or  sup- 
nlies  are  not  unusual  in  amount,  ami  are 
.  'ich  as  a  reasonable  and  prudent  owner 
would  have  sanctioned  if  present,  ii  has 
been  held  that  the  master  has  power  to 
bind  the  owner.  Schultz  v.  Bosnian, 
5  Hughes,  97 ;  John  v.  Simons,  2  (^. 
B.  424  ;  Stonehouso  v.  Gent,  Ibid.  431, 
note  {/)). 

Of  course,  the  supplies  and  re|  airs  wliioh 
are  reasonably  fri.  and  proper,  under  such 
circumstances,  for  the  master  to  contract 
for  u|)on  the  credit  of  the  owner  witliout 
consulting  him,  are  much  more  restrietod 
as  to  kind  and  amount  than  wov.ld  be  the 
case  in  a  foreign  port,  and  g. eater  caution 
and  in(piiry  in  giving  the  credit  slimild 
be  exercised  by  the  material  man  liefere 
furnishing  them.  Schultz  v.  Bo>iii;>n,  5 
Hughes,  97.  But  the  rule  may  iw  con- 
sidered generally  correct  that  the  master 
of  a  vess.d  without  any  other  autlmiity 
than  that  derived  from  his  otiicial  cipaiity 
is  not  entitled  to  order  rijiairs  to  be  made 
in  a  home  jiort.  Jordan  ».  Young,  37  Me. 
276  ;  Dyer  v.  Snow,  47  Me.  2.';4.  .And 
where  the  vesse.'  was  lying  at  a  vlmri'  in 
Portland,  Maine,  and  the  owner  was  a  'csi- 
dent  of  the  adjoining  town  of  Ciipc  r.liai- 
beth,  the  principles  as  to  the  home  ]«irt 
were;  held  to  a|)jily.  Jordan  v.  Yiiiin|;, 
o7  Me.  273.  And  authority  to  ^'ive  a 
piomissory  note  at  a  home  ])ort  by  a  mas- 
t'.'r  to  bind  the  owner,  is  not  to  be  iiiiiilied 
from  the  relation  that  subsists  lietHviMi 
master  and  owner.  Cregg  v.  Jiobliiis,  "28 
Mo.  347.  Nor  to  give  a  bond  to  r  I  •  i>e  a 
vessel  from  seizure.  Carr  v.  liuike,  'ii 
Mo.  233. 

Whe-e  in  the  same  State  tlie  Icpil 
owner  of  a  vesstd  resided  iu  the  citv  "f 
New  York,  and  the  master,  who  was  the 
actual  owner,  obtained,  in  Biilfiiio,  the 
jtlaintiir  as  bail  for  the  vessel's  diseliarffe 
upon  her  being  lilMdled  for  illcynlly  eariy- 
ing  passengers,  no  coammnicatioii  having 


BOOK  II. 

3andon- 
time  of 

e  iirocured 
llowL'd  the 
lie  ship  to 
only  so  far 
rt'usuii  and 
i'iisi-3  in  a 
)t'  the  mas- 
Icxiblo  rule 
ioii  or  any 
the  restric- 
ler  than  the 
,   thi'ri'fore, 
ials  or  sup- 
olio  suusc  a 
t  wlit'ic  thi! 

not  within 
nil's  or  sup- 
int,  uiul  are 
iiltMit  owner 
sent,  i*.  hiw 
as  jinwer  to 
V.  Bosnian, 
iiiniis,   '2  V. 

Ibid.   431, 


PART  IV.]  SHIPMASTERS   AS   AGENTS   OP  NECESSITY. 


269 


tlio  l.'pil 
kho  citv  i>f 
|io  WHS  the 

liirih".  ti'« 

,iis,tmrge 
pillv  '  iiriy- 
loll  hnving 


the  accident  wliich  had  happened  to  her.  If  accepted,  the  master 
became  the  agent  of  the  insurer ;  and  whether  accepted  or  not, 
his  act,  without  authority,  could  receive  no  ratification  from  alle- 
ffations  or  admissions  made  by  any  party  in  a  dispute  on  the  con- 
tract of  assurance,  where  tlie  inquiry  as  to  the  act  of  the  master 
was  irrelevant.    The  claimant,  having  obtained  possession  unlaw- 


\wn  niaili'  to  the  legal  owner,  ho  was  held 
not  liahli'  to  the  ]ihiiiititr  for  the  amount 
the  jil.iintiil'  was  coniiiclh'd  to  pay  as  surety 
nil  thi'  lioinl.  (lager  r.  Babcock,  48  N.  i. 
154.  In  Crawl'onl  v.  Rolierts,  50  Cal.  235, 
it  was  held  that  the  niu-ster's  power  is  pre- 
snnii'il,  in  the  absence  of  evidence  to  the 
lontrarv,  to  extend  to  making  contracts 
for  supjilii's  in  the  home  j«o  -t  which  shall 
biiiil  the  owners  ;  the  dut.  i.iid  relations 
of  the  master  furnishing  |iesunnitive  evi- 
ilciu'c  of  his  authority  to  purchase  sup- 
phes,  I'lovost  V.  Patchin,  9  N.  Y.  235  ; 
hich  r.  Coe,  Cowp.  636;  llusseyr.  Chris- 
tie, '.•  Kast.  432  ;  Hoskins  v.  Shiyton,  Cas. 
Temp.  Ilai'dw.  360;  James  v.  Bixby,  11 
Mas.s.  4(1 ;  Flanders  v.  Merritt,  3  IJarb. 
2ol.  Ami  if  the  purchases  are  made  by 
the  master  with  the  knowledge  and  con- 
sent of  the  .ship's  hu.sband,  the  owners  are 
liriiiiii  fnrir  liable.  Crawford  v.  Roberts, 
fid  Cal.  2:i."i.  And  for  the  necessary  sup- 
plies of  the  ves.sel  even  at  the  home  port, 
furni>hed  by  order  of  the  master,  the 
owner  is  j;eiierally  liable,  as  agency  to 
that  extent  is  u.sually  to  be  implied  ;  and 
wiieii  hi'  seeks  to  escape  the  liability  he 
must  make  out  by  satisfactory -proof  the 
fiiets  upon  which  he  claims  the  exemption. 
.\lil)ott  V.  W.  k  R.  Steam  Pajket  Co.,  1 
M.l.  ("h.  -)42. 

In  Iloliiiison  V.  fJporges  Ins.  Co.  17  Me. 
ni,  it  was  held  that  where  a  vessel  had 
lii'eii  stranded  on  a  sand  bar  within  the 
I'niteil  ."states,  and  within  one  hundred 
miles  of  tiie  place  of  bidding  a  court  of 
the  I'liited  States  for  the  distrii't,  and 
hail  tieeii  put  alloat  and  rejiaired  by  sal- 
vors, the  master  had  no  power  to  refer  the 
ilaim  for  salvage  to  arbitration  witlmut 
the  coiisi'iit  of  the  owners.  But  in  a  case 
of  };rea*  iier"ssity,  where  there  were  thir- 
teen owiiirs  iif  a  vessel,  living  in  dilfereiit 
States,  ami  with  whom  it  would  have  been 
ilillienlt  to  I'oininuniciite  with  the  iiecis- 
s:iry  pr(iiii|itiii'ss,  their  agent  being  pies, 
ent  on  till'  .>|)ot  where  the  repairs  were 
inaile,  and  pivsiiniably  approving  of  tln'in, 
itwas  lii'lil  that  though  the  general  priii- 
eiple  is  iiirreot  that  if  the  owner  or  his 
agent  for  tlie  piiri>ose  is  either  at  the  port 
"rat  smli  a  convenient  distance  that  the 
master  ran  hax-e  cominiinication  with  him 
without  surli  a  delay  as  wonhl  materially 
prejudice  his  interests,  the  authority  of  the 
iiiMter  to  bind  the  owuer  for  repairs  does 


not  exist;  yet,  under  the  circuni.stances,  the 
master  has  a  right  to  charge  the  owners 
with  such  exi>eiises  for  repairs,  even  at  a 
homo  port,  as  the  interests  of  the  owners 
render  it  neces.sary  that  he  shouhl  incur. 
Woodrul!"  &  Beach  Iron  Works  r.  Stetson, 
31  Ct.  51  ;  Webster  v.  Seekamp,  4  B.  & 
Aid.  353  ;  John  v.  Simons,  2  q.  I?.  425. 

In  Steamboat  Lehigh  v.  Knox,  12  i\fo. 
508,  it  was  held  that  in  order  to  give  a 
lien  on  the  steaml>oat  for  supplies  fur- 
nished it  is  not  neccs.sary  for  the  party 
furnishing  such  sup])iies  to  ascertain 
whether  the  master  or  agent  actually  in 
jiosse.ssion,  and  having  control  of  the 
steamboat,  is  li'gally  entitled  to  that  pos- 
session and  control;  the  presumption  be- 
ing that  he  is  so.  In  accordance  with  tiie 
principle  that  where  the  owner  is  in  such 
a  position  to  be  communicated  with,  when 
any  unusual  act  is  to  be  taken  in  respect 
to  the  vessel,  the  master's  act  is  not  bind- 
ing on  the  ves.sel  or  owner  without  such 
communication,  it  wa.s  held  in  The  (iiulio, 
27  Fed.  Re[i.  318,  where  a  master  executed 
an  instrument  which  amounted,  in  legal 
elfect,  to  a  contract  of  bottomry,  and  he 
was  at  the  time  within  easy  reach  of  the 
owner  by  telegraiih,  where  a  letter  would 
have  reached  liim  in  live  days,  and  where 
the  owner  was  in  actual  coniniiiniiation 
with  the  master,  and  was  not  notilied  of 
the  master's  intiMition  to  borrow  nuniey  on 
the  security  ot  the  vessel,  nor  his  approval 
obtained,  the  instrunient  was  invalid. 
And  see  Astrups  v.  Leroy,  l!>  Fed.  Rep. 
536;  Miller  i'.  Thomp.soii,  60  Me.  322; 
(Jates  I'.  Thiimpsou,  57  .Me.  442;  Acatos 
r.  IJunis,  7  F.x.  Div.  282;  The  Auslial- 
asiaii  Strain  Nav.  Co.  v.  Morse,  1,.  R.  4 
P.  C.  222;  The  Bonaparte,  S  M..o.  P.  C. 
45!';  The  Cargo  ex  Hambmg,  2  Moi>.  'VO. 
\.  ,s.  289:  The  Lizzie,  I,.  U.  2  Ad.  ^  Kc. 
254  ;  Atkinson  V.  Ste|)hins,  7  F.x-  .'^^67; 
Kwlviiik  V.  Nutting,  7('.  B.  2',t": 
V.  The  Fast  India  Co.,  5  H.  & 
I'ammell  l'.  Sewell,  3  11.  &  N 
Cratitudine,  3  C.  Itob.  24ti  ;  ' 
P.lake.  107  r.  S.  418  ;  16  Bla 
The  C.  M.  Titus,  7  Fed.  l!.i>. 
Butler  i<.  .Murray,  30  N.  Y.  f<H,  '.c.i,  The 
Joshua  Barker,  Abb.  Adni.  21.'.;  Pi)|ii!  v. 
Ni(!ker.son,  3  Story,  465;  Myers  v.  Bay- 
more,  10  Pa.  St.  il4;  Pike  v.  Batch,  38 
Me.  302. 


Fireman 
Aid.  617; 
•:il;  The 
riie  Julia 
rhi.  472  ; 
826,  831; 


t    I 


'  -.1 


[Y 


t.  I 


1  t  < 


270 


COMMENTARIES  ON  SALES. 


[book  II. 


[$   • 


1i^ 


i«'i 


Willi 


fully,  was  a  trespasser,  and  could  no  more  plead  the  abandonment 
as  a  conliriuation  of  his  title  than  if  ho  had  obtained  it  by  theft 
or  piracy.  Moreover,  if  the  circumstances  would  have  justified  a 
sale  by  the  master,  no  abandonment  was  necessary.  It  could  not, 
therefore,  by  any  possible  implication,  amount  to  a  conlirmatlon 
of  such  salc.^ 

In  The  Turgot,^  it  was  argued  that  the  master  had  an  implied 
authority  to  pledge  the  owners'  credit  as  their  agent  ex  necemtate, 
in  order  to  enable  the  ship  to  sail,  and  The  Beeswing  ^  was  cited 
as  an  authority.  But  this  (The  Turgot)  was  a  case  where,  liy 
charter-party,  it  was  agreed  that  the  owners  of  the  ship  should 
provide  and  pay  for  provisions  and  wages,  and  that  the  cliiirterer 
should  i)rovide  and  pay  for  coals  and  other  expenses.  The  master 
was  to  be  appointed  by  and  to  follow  the  instructions  of  the  char- 
terer. The  master,  with  notice  of  the  charter-party,  ordorod  and 
made  himself  liable  for  provisions  and  coals  for  the  vessel  at  a 
foreign  port.  These  provisions  and  coals  were  necessary  to  en- 
able the  vessel  to  perform  her  voyage.  It  was  held,  in  an  action 
by  the  master  against  the  vessel,  that  he  was  entitled  to  recover 
for  the  provisions  but  not  for  the  coals,  as  by  the  terms  of  tin- 
charter-party  he  had  no  power  to  pledge  the  owners'  credit  in 
respect  of  them.  The  agency  from  necessity  did  not  exist.  The 
charterers  were  '  ')und  to  ,'jay  for  the  hire  of  the  vessel  durimi;  its 
detention,  and  the  owners,  therefore,  had  no  interest  in  obtainin!: 
its  immediate  departure. 

In  (Jaudet  o.  Brown,  Cargo  ex  "  Argos,"  *  it  was  held  that  where 
a  ship  hud  a  cargo  of  petroleum  on  board,  which  he  was  unal)lo  to 
land  at  the  port  to  whicli  it  was  consigned,  the  authority  of  the 
master  being  founded  on  necessity,  and  he  being  unable  to  ol)tain 
instructions  from  the  shipper  or  his  assignees,  and  being  luiahle 
to  land  and  warehouse  the  cargo  at  the  expense  of  the  own<r of 
it,  he  was  not  justified  in  destroying  the  cargo,  but,  in  the  ali.seuie 
of  advices,  he  might  take  it  to  such  a  place  as,  in  his  judiiinent. 
was  most  convenient  for  the  merchan*.  and  might  charge  to  the 
merchant  all  expenses  properly  incurred,  including  back-ficight. 
And  as  the  master,  as  agent  of  necessity,  must  act  for  the  protec- 
tion of  the  interests  committed  to  him,  if  he  have  an  apprehen- 
sion of  capture  founded  on  circiunstances  calculated  to  aftVct  the 
mind  of  a  master  of  ordinary  courage,  judgment,  and  experience. 
delay  in  the  prosecution  of  a  voyage  will  be  justified,  and  the  ship 
will  not  bo  answerable  for  damage  to  the  cargo  caused  by  such 
delay  .^ 

1  Wnnl  V.  Peck,  18  How.  267.  «  L.  R.  5  P.  C,  165. 

3  11  I'r.  Div.  21.  6  Anderaon  v.  Tlie  Owners  of  the  San 

•  63  L.  T.  N.  s.  554.  Roman,  L.  U.  5  P.  C.  301.     In  Chapman 


PART  IV.]  SHIPMASTERS   AS   AGENTS  OP   NECESSITY. 


271 


The  question  of  the  authority  of  the  master  of  a  ship  to  sell 
goods  which  he  is  carrying,  where  there  was  an  opportunity  of 
CDmmnnicating  with  tlie  owner  of  tlie  goods,  came  up  and  was 
decidod  in  Acatos  v.  Burns  ^  in  tlie  Court  of  Appeal.  The  plaintiff 
sliippcd  a  quantity  of  Indian  corn  on  board  the  defendants'  ship  at 
Constantinople  for  Liverpool.  On  arrival  of  the  ship  at  Smyrna, 
a  port  of  call,  the  corn  was  found  to  be  so  damaged  as  to  render 
it  (lanircrous  to  the  ship  and  cargo  to  carry  the  corn  further.  In 
consdiuoncc  of  its  condition  it  was  unloaded  and  sold  by  the  mas- 
ter at  Smyrna.  An  action  was  brought  against  the  defendants 
for  conversion.  On  the  trial  it  was  shown  that  the  master 
coniininiicatcd  with  the  ship's  agent  at  Constantinople,  and  re- 
ceived infoi-mation  back  that  the  shipper  pi'otested  against  the 
eoru  being  si)ld.  It  was,  however,  under  the  advice  of  Lloyd's 
agent,  sold.  The  jury  found  that  the  defendants  could  have  com- 
miniioatcd  with  the  owners  of  the  corn  before  they  sold  it ;  that 
tlic  sale  under  the  circumstances  was  not  one  of  such  urgent  ne- 
cessity as  to  give  no  time  or  opportunity  for  communicating  with 
the  owner ;  but  that  the  sale  of  the  corn  in  the  manner  the  de- 
fendants sold  it  was  a  prudent  measure.  Judgment  was  entered 
for  tlie  plaintiff  and  the  defendants  appealed.  The  court  affirmed 
the  judgment.'^ 


■: 


A 


V.  Morton,  11  M.  &  W.  533,  where  goods 
weio  sold  liy  tlii'  (lofeiiiliiiit,  it  was  cliiiincil 
that  his  Siile  was  liiwt'ul,  lis  the  cireum- 
staiiccs  of  till'  case  placed  him  in  the 
jKisitioii  of  an  a<;ent  of  necessity  for  the 
lilaintitf,  ami  tliMl  in  that  capacity  ho  sold 
the  floods  for  the  price  of  which  the  action 
was  liroiiuht.  But  the  conrt  held  tliat  the 
ciiviuiistani'i's  did  not  create  such  a  rela- 
tion lictwccn  the  jmrtii's.  But  it  has  been 
held  that  if  the  vendee  wronf^tully  refuse 
to  a('(^(>|it  ijoods  contracted  for,  the  vendor, 
as  his  ag>'iit  hy  necessity,  may  re-sell  the 
Roods  on  his  account,  and  in  an  action  for 
the  inicc  cd'  the  floods  recover  the  dilfer- 
eiiee  hctwccn  the  contract  price  and  the 
price  on  the  re-sale.  Sands  v.  Taylor,  5 
■loliiis.  3;'.". ;  (iirard  v.  Ta<,'sart,  5  S.  &  R. 
lit.  And  suidi  an  nRem^y  is  sometimes 
created  hy  necessity,  in  the  case  of  a  ne- 
cessity ari'-iuK  ''"■  ^hc  sale  of  perishable 
iirticK's.  ,Si'c  Chapman  v.  Morton,  11  M. 
i;  W.  5:irt,  .',:)8,  .'ilO. 

'  ;i  Kx.  Div.  282. 

'•^  Hntt,  !,.  F.,  makes  the  law  in  the 
case  clear,  thus:  "Had  the  master  au- 
thority to  sidl,  and  was  tlie  sale  lawful  or 
wrongful?  On  the  present  findings  we 
must  take  it  that  the  goods  were  of  a 
I>eri>hable  nature,  and  had  an  inherent 
vice  at  the  time  of  shipment,  and  that 
was  the  cause  of  their  being  landed  at 


Smyrna,  and  if  something  had  not  lieen 
done  with  them  they  would  have  perished. 
The  sale  was  a  reasonable  sale  us  regards 
the  nature  ami  condition  of  the  goods, 
but  it  was  a  sale  without  the  consent  of 
the  owner.  The  i|Uestn)n  therefore  is, 
whether  the  master,  under  such  circum- 
stances, had  authority  to  sell  the  goods? 
The  first  jmint  made  was  that  the  author- 
ity of  the  master  to  sell  goods  is  to  1k' 
measured  dilfcrently  when  the  goods  be- 
come perishable,  owing  to  tlndr  own  in- 
herent vice  at  the  time  of  shipment,  and 
wheii  they  become  so  from  ludng  ilaniaged 
by  jierils  of  the  sea.  There  Is  no  grontid 
for  any  such  distinction.  The  authority 
of  the  master  is  the  same  whi'lher  the  sale 
is  rendered  necessary  from  injury  arising 
from  the  itdierent  vice  of  the  goods  or 
from  sea  damage.  I'riiiut  facie,  the  mas- 
ter has  no  authority  to  sell.  lie  may 
have  such  authority  under  certain  cir- 
eumst.ances  which  may  arise  from  .some- 
thing happening  to  the  shij),  or  from 
something  ha]>pening  to  the  cargo  ;  but 
the  law  of  Kngland  looks  with  jealousy  on 
the  nnister  selling  any  part  of  the  cargo 
without  tlie  consent  of  its  owner,  and  it 
gives  the  master  no  authority  unless  there 
is  an  urgent  necessity  for  the  .sale.  Now, 
an  urgent  necessity  for  a  sale  may  arise 
from  several  causes.     There  may  be  an 


".  \ 


il 


272 


COMMENTARIES  ON  SALES. 


[book  II. 


mm 


ll#'"   'I 


Repairs  such  as  are  necessary  to  remove  the  inability  of  the 
ship  to  proceed  on  her  voyage,  cannot  be  made  by  the  master  un- 
less he  has  means  or  credit,  and  if  he  have  neitlicr,  and  his  situa* 
tion  is  such  that  he  cannot  communicate  with  the  owners,  ho  may 
sell  a  part  of  the  cargo  for  that  purpose  if  it  is  necessary  fur  him 
to  do  so  in  order  to  raise  the  means  to  make  the  repairs,  Sacri- 
fices made  to  raise  such  means  are  the  subject  of  general  aver- 
age, and  tlie  rule  is  the  same  whether  the  sacrifice  was  made 
by  a  sale  of  a  part  of  the  cargo,  or  by  the  payment  of  marine 
interest.^ 

In  the  case  of  the  sale  by  a  master  of  ship  and  cargo,  the  orig- 
inal owners  claimed  the  cargo  on  the  ground  that  the  sale  by  the 
master  was  unjustifiable.  The  claimants  averred  that  tlie  sale 
was  a  fair,  honest,  and  valid  sale  of  the  property,  made  from  ne- 
cessity, in  good  faith,  and  for  the  best  interests  of  all  coucorned, 
and  that  they  were  the  rightful  and  bond  fide  owners  of  the  jjor- 
tions  of  the  cargo  purchased  by  them.''  The  District  Court  decreed 
in  favor  of  the  claimants.  On  appeal  to  the  Circuit  Court,  tliis 
decree  was  reversed ;  the  sale  being  pronounced  void,  and  the  re- 
spondents treated  as  salvors  only,  and  were  permitted  to  retain  a 
moiety  of  the  proceeds  of  the  property  as  salvage.  On  appeal 
to  the  Supreme  Court  tliis  decision  was  aflirmcd.  The  facts  of  the 
case  were  peculiar,  and  the  court  held  that  the  cases  justifying,'  a 
sale  assume  the  fact  of  a  sale  in  a  civilized  country,  whore  men 
have  money,  and  where  there  is  a  market  and  competition ;  but 
that  they  have  no  application  to  wreck  in  a  distant  ocean,  where 
the  property  is  derelict,  or  about  to  become  so,  and  the  person 
who  has  it  in  his  power  to  save  the  crew  and  salve  the  carjjo,  pre- 
fers to  drive  a  bargain  with  the  master.     The  necessity  in  such  a 

urgent  necossity  to  sell  goods,  arising 
from  tlio  fact  that  if  the  goods  are  not 
sold  they  will  perish,  or  that  they  will 
have  to  be  kept  in  warehouses  at  great 
expense,  so  that  as  a  matter  of  business 
it  would  be  wrone  to  warehouse  them  ; 
and  it  must  be  sliuwii  that  the  master 
has  no  means  of  eonimuniuatirig  with  the 
owner,  and  taking  his  <lirection8  whether 
he  siiall  sell  them  or  not.  But,  I  think, 
whether  the  goods  are  of  a  perishable 
nature  or  not,  if  the  master  has  an  oppor- 
tunity of  communicating  with  the  owner 
before  they  actually  perish,  he  cannot  sell 
without  coninninicating  with  the  owner 
and  obtaining  his  directions ;  and  if  the 
master  obtains  directions,  and  the  owner 
of  the  goods  refuses  his  consent  to  a  sale, 
the  master  cannot  sell,  although  the  goods 
are  of  a  perishable  nature.  It  is  not  neces- 
sary to  lay  down  rules  as  to  what  the  mas- 
ter should  do  in  every  case,  but  clearly  he 


has  no  wglit  to  sell  after  rpc(>iviii<;  diree- 
tions  to  the  contrary.  The  jury  ln'i>'  Imve 
found  that  there  was  no  urgent  iH'ccssity 
for  a  sale  ;  therefore  in  the  pri'sciit  ease 
the  sale  was  wrongful."     Acatos  v.  Iliiins, 

3  Kx.  Div,  at  p.  2S9,  See  ColKMiuicl  Mar. 
Ins.  Co,  V.  Hart.aux,  L,  R.  ti  1".  C.  31?; 
Tronson  v.  Dent,  8  Moo.  P.  ('.  41!>,  448; 
Notara  v.  Henderson,  L.  H.  .1  (}.  li.  Md; 
Bra.s3  V.  Maitlanil,  (5  K.  &  B.  471;  Aus- 
trala.sian  Steam  Nav.  Co.  v.  Moisr,  I,.  R. 

4  P.  C.  222  ;  The  Cargo  ex  llamlnirg.J 
Moo.  P.  C.  N.  s.  289. 

1  Star  of  lIoiH',  9  Wall.  203.  237; 
Orrok  v.  Commonwealtli  Ins.  Co.,  21 
Pick.  469,  See  further,  Duiiont  v.  Viiiice, 
19  How.  162;  Barnard  v.  .V.ianis,  10  How. 
303;  Patten  v.  Darling,  1  Cliff.  262;  Uw- 
rence  v.  Minturn,  17  How.  110;  Potter  r. 
Ocean  Ins.  (^o.,  8  Sumn.  42;  The  Bng 
Mary,  1  Sprague,  18. 

^  Post  V.  Jones,  19  How.  150. 


PART  IV.]  SHIPMASTERS   AS  AGENTS  OP  NECESSITY. 


278 


case  may  bo  imperative,  because  it  is  the  price  of  safety,  but  it  is 
not  of  that  character  which  permits  the  n  "tor  to  exercise  his 
power  of  sale.  And  the  claimants  were,  acL<rtlingly,  decreed  to 
be  salvors,  and  not  purchasers  of  the  cargo.* 

Material-men  have  a  lien  on  the  ship,  which  may  be  enforced  by 
a  proceeding  in  the  admiralty,  in  rem,  for  necessaries  or  supplies, 
furiiislied  in  a  port  to  which  the  vessel  is  foreign ;  and  so,  if  she 
be  hell!  out  as  foreign,  and  supplies  are  furnished  on  the  faith  that 

gJlO  is  S().2 

Necessaries  furnished  to  a  vessel  in  a  foreign  port,  specifically 
ordered  for  her  by  name,  delivered  to  the  officers  in  charge  of  her, 
and  indispensable  to  enable  her  to  make  her  voyage,  and  where 
there  is  no  reason  to  suppose  that  the  master  had  funds,  or  the 
owners  of  the  vessel  credit,  and  the  party  selling  the  necessaries 
was  not  guilty  of  laches;  the  inference  is  that  the  credit  was 
given  to  the  vessel,  and  this  inference  is  not  rebutted  by  the  fact 
that  in  the  seller's  journal  there  is  an  entry  under  the  names  of 
the  owners  of  this  and  other  vessels,  the  items  in  the  entry  being 
placed  opposite  the  name  of  each  specific  vessel,  to  which  they 
were  supiilied,  and  being  charged  at  the  lowest  cash  price.  Inas- 
much as  the  goods  were  thus  supplied,  and  in  a  foreign  port,  the 
presumption  of  law  is  that  the  credit  was  given  to  the  vessel  and 
not  to  the  owners,^ 

The  liability  of  the  owner  of  a  vessel  to  pay  for  repairs  and 
equipments  ordered  by  the  master,  depends  not  upon  the  ground 
of  the  ownership  of  the  vessel,  but  upon  the  ground  of  a  con- 
tract made  with  the  vendor  by  a  person  who  was  the  owner's 
agent  for  the  purpose  of  ordering  such  necessaries.  The  mas- 
ter's contract  cannot  bind  the  owner  unless  authority  to  bind  the 
owner  has  boon  actually  given  to  him ;  or  unless  the  owner  has 
by  word  or  deed  held  out  the  master  as  his  master,  and  thereby 
induced  the  vendor  to  supply  the  necessaries  upon  the  credit  of 
the  owner.  The  question  came  up  in  the  case  of  The  Great 
Eastern,*  where  the  owners  of  a  vessel  entered  into  an  agreement 
and  charter-party,  by  which  it  was  provided,  inter  alia,  that  the 
master,  oflicers,  and  crew,  should  bo  appointed  by  the  owners,  be 
under  their  control,  and  be  dismissed  by  them,  but  that  their  wages 
should  be  paid  by  the  charterer ;  and  it  was  also  provided  that  the 
master  should  act  as  supervisor  of  the  repairs  and  fittings  of  the 
ship.  An  action  having  been  brought  for  necessaries  supplied  to 
the  ship  while  under  this  charter,  by  the  master's  order,  who  stated 


'  See  The  Tilton,  5  Mason,  477;  The 
Sarah  Ann,  2  Siinm,  217;  13  Peters,  402. 
'  The  St.  Jago  de  Cuba,  9  Wheat.  409. 
▼OL.  I.  18 


•  The  Patapsco,  13  WalL  829 ;   Tha 
Lnlu,  10  Wall.  192. 

«  L.  R.  2  Ad.  &  Ec.  88. 


'v: 


:  i.» 


.1           , 

I-  .■ 

I 

■i 

4 

7'i   ■ 

iii    .• 

i 

'i 

274 


COMMENTARIES  ON   SALES. 


[book  II. 


in  his  evidence  that  he  considered  himself  as  acting  for  and  as  the 
servant  of  botli  owners  and  charterer,  it  was  held  that  the  own- 
ers  had  held  out  the  master  as  their  master,  and  that  they  were, 
therefore,  liable  for  the  debt.' 

The  {(laintitTs  wishing  to  send  cement  and  stone  from  Lon- 
don to  Callao,  the  defendants,  on  June  24,  wrote,  offeiini,'  them 
"room"  for  it  in  the  shij)  F.  K.  Dumas,  and  on  Jime  lio, 
the  defendants  chartered  the  ship  of  the  owners  for  a  voy- 
age from  London  to  Callao,  by  a  charter-party,  provi(liii<:,  Inter 
allay  that  the  whole  ship  should  be  at  the  disposal  of  the  cluutcr- 
ers,  except  the  space  necessary  for  the  crew  and  stores  ;  that  the 
master  and  owners  should  give  the  same  attention  to  the  cargo. 
and  in  every  respect  be  responsible  to  all  whom  it  might  concern. 
as  if  the  ship  were  loaded  in  her  berth  by  and  for  the  owners  in- 
dependently of  the  charter ;  that  the  master  was  to  sign  hills  of 
lading  at  any  rate  of  freight  the  charterers  might  ro(|uiro  wifhoiit 
prejudice  to  the  charter-party  ;  that  the  ship  should  be  addressed 
to  the  charterers'  nominees  at  the  port  of  discharge ;  aiul  the 
charterers'  responsibility,  except  for  freight,  was  to  cease  on 
the  vessel  being  loaded.  On  June  2G,  an  agrecniont  was  made 
between  the  defendants,  "acting  for  the  owners"  of  the  ship, and 
the  plaintiffs,  that  the  former  should  receive  on  board  conieut  and 
stone  at  a  certain  freight  from  London  to  Callao,  and  sail  on  a 
certain  date.  Freight  to  be  paid  one-half  on  signing  bills  of  lad- 
ing, and  the  remainder  on  final  discharge  at  Callao,  The  cement 
and  stone  were  shipped,  half  freight  was  paid,  and  the  master 
signed  bills  of  lading,  making  the  other  half  payable  at  Callao; 
and  the  ship  sailed,  but  being  damaged  by  bad  weather,  put  into 
an  intermediate  port,  where  she  was  condemned,  and  the  captain 
sold  the  plaintiffs'  goods,  believing  that  he  was  unable  to  forward 
them.  The  plaintiffs  having  sued  the  defendants  for  the  valne, 
the  jury  found  that  the  sale  was  not  justified.  Donniaii,  J.,  on 
consideration,  held  that  the  captain  in  selling  the  goods  was  not 
acting  as  the  servant  or  agent  of  the  defendants,  and  they  were 
not,  therefore,  liable  for  the  conversion.'*     The  case  came  "p 


>  .Sec  Frost  v.  Olivor,  2  E.  k  R.  301 ; 
Mitrlit'soii  V.  Oliver,  5  K.  k  l\.  4U»;  Dean 
V.  Ihini^,  10  Biiig.  350;  Huttoii  v.  Uragg, 
2  Miirsh.  3;i9. 

*  Wagstatr  V.  Anilerson,  4  C.  P.  D. 
283.  For  further  cases  apjilieable  to  the 
point  involved,  see  Mitcheson  v.  Oliver,  5 
E.  &  B.  419;  Siiipton  v.  Tliornton,  9  A. 
k  E.  31 4  ;  Acatos  v.  Burns,  3  Ex.  Div. 
882;  Sandcman  v.  Saiir,  L.  R.  2  Q.  B.  86; 
(lilkinson  o.  Middlcton,  2  C.  B.  n.  8.  134; 
Lloyd  V.   Guibert,    L.   K.  1  Q.  B.  115; 


Hunter  I',  rrinsep,  10  East,  378;  Wilson 
V.  Di.-ksoii,  2  Stark.  1;  2  15.  k  AM.  2; 
The  Oratitudine,  iJ  C.  Uoh.  2ii>:  N(>tara 
V.  Henderson,  L.  U.  7  Q.  15.  2.'r>;  Quar- 
man  v.  I5urnett,  6  M.  &  W.  4!t!t;  Tobinr. 
The  Queen,  33  L.  J.  (".  I'.  !!)!»,  204; 
Kingston  v.  Wendt,  1  i).  B.  Div.  367; 
Tronson  v.  Dent,  8  Moo.  V.  C.  41!»;  Hoolan 
V.  Midland  Uv.  (^o.  2  App.Ciia.  :'.»'2;  lla)'" 
V.  Calliford,  3  C.  P.  Div.  410;  Colvin  r 
Newlierrv,  1  fl.  k  F.  283 ;  Ewbank  ». 
Nutting,"  7  C.  B.  797. 


P.VIIT   IV  ]  SHIPMASTERS   AS    AGENTS   OF   NECESSITY. 


276 


af^iiin,  on  appeal,  to  the  Court  of  Appeal,  when  the  judgment  of 
Dinman,  J.,  was  sustained.' 

Wlioro  the  master  of  a  ship,  without  any  authority  from  the 
owners  of  the  ship  or  eargo,  executes  bottomry  hunds  on  ship, 
fiviirlit?  !Hid  carjro,  under  circumstances  which  justify  him  as  agent 
of  necessity  in  doing  so,  for  repairs  to  the  sliip,  and  where  the 
contruct  of  alTrcightmcnt  does  not  otherwise  provide,  as  between 
tlie  piirtics  to  tli  •  contract,  in  respect  of  sea-damage  and  its  inci- 
dents, he  law  of  the  country  to  which  the  ship  belongs  must  bo 
taken  to  be  the  law  to  which  they  have  submitted  themselves. 
Tims,  tlie  plaintiff,  a  IJritish  subject,  chartered  a  French  ship  bc- 
ion;:ing  to  French  owners  at  a  Danish  West  India  port,  for  a  voy- 
a<re  from  St.  Marc,  in  Ilayti,  to  Havre,  Lon<l  ii,  or  Liverpool,  at 
ciiurtenr's  option.  The  charter-party  was  entered  into  by  the 
master  in  pursuance  of  his  general  authority  as  master.  The 
plaint  ill'  shipped  a  cargo  at  St.  Marc  for  Liverpool,  with  which  the 
vessel  sailed.  On  her  voyage  she  su  .tained  sea-damage,  and  put 
into  Fa\  al,  a  Portuguese  port,  for  repair.  There  the  master  prop- 
erly borrowed  money  on  bottomry  of  ship,  freight,  and  cargo,  and 
repaiidl  the  ship,  and  she  completed  the  vtjyage  to  liiverpool. 
The  bond-liolder  proceeded  in  tiie  ('ourt  of  Admiralty  against  the 
ship,  freight,  and  cargo.  Tlie  ship  and  freight  were  insullicient 
to  satisfy  the  bond,  and  the  deficiency  with  costs  fell  on  the  plain- 


'  \V,ii,'st,iir  V.  Anderson,  5  C.  P.  D. 
171.  Till ■^iL;(•r,  li.  .1.,  tiius  (ifiilt  with  tlie 
((iii'stion  (il  the  iillcm'il  ajiclicy  of  tin-  mas- 
ter; "Tlic  pluiiitiHH  conti'iid  thiit  the  (ie- 
fi'inlants  lire  r<'s|ionsil)li'  for  the  tiv.t  of  the 
iiiistiT  dl'  till!  ship  ill  .selling,'  the  goods  at 
Miiiitn  Video,  on  the  groiinils  that  the 
iiiiistiM  ill  sclliiij;  was  the  ajjeiit  of  the 
(Icl.hiiaiits  ;  lliat  liriiicr  n>,'cllt  of  the  df- 
ft'iidiints,  he  was  iiitiiig  within  the  geiienil 
stiipc  iif  liis  authority,  mid  that  ciinse. 
iliii'iitly,  iiithoiigh  ill  this  iiarticiilar  case 
the  siiie  was  and  has  Ihh'Ii  found  liy  the 
jury  to  he  iiiijiistifiatih',  yet  the  delend- 
iitiis  iiiv  respoiisihle  for  thi'  act  of  their 
Hijiiit,  upon  the  ]iiiiieiple  jaiil  down  in 
KwiMiik  V.  Nutting,  7  C.  M.  7!»7,  and 
siiiiiliir  cases.  This  eontelitinn  involves 
SL'Vinil  propositions.  The  {ilaintill's  have 
t"  iiiakv  nut  that  the  tnaster  was  the  agent 
"I  till'  (ii'fii.daiit.s,  and  I  luii  of  opinion 
tliit  ill  lliis  they  have  failed.  The  goods, 
the  Mill'  (il  whiili  is  the  snliject  of  dispute, 
Were  i;irii,.,|  uiiil,.)-  11  liill  of  lading,  and, 
liriiiii'i  f.irii;  the  iiiiLster,  in  sii:niiig  that 
liil!  Ill  lading,  would  be  neting  on  helialf 
ol  tlie  peisDiis  who  were  the  shipowners, 
mill  till'  sliipowners  would  he  the  (icrsona 
re'ijiiiiisiliic  tor  the  carriage  of  the  goods, 
and  lor  all   things  to   which   the  agent 


would  Ih»  aide  to  li  d  the  .sliiiKiwners  in 
eoimectioii  with  the  goods,  lint  it  is  open 
to  the  phiiiitilfs  to  negative  the  presiini]i- 
tioii  of  the  lialiiliiy  of  the  shipowner-  in 
two  wiiy.s,  —  either  by  showing  l\\n  the 
transnctioiis  betwei'ii  the  shipowners  anil 
the  (lef<'iidiiiits  wen-  sueii  as  really  put  the 
defendants,  lor  that  particiilnr  voyage,  in 
the  position  of  the  sliipowners,  iieniiding 
to  the  principles  laiil  down  in  Colvin  v. 
Newherry,  1  (1.  &  F.  '283;  or  that,  al- 
thougii  the  tran.sactions  iietweeii  the  ship- 
owners and  the  defendants  did  not  put 
the  defendants  in  tiie  position  of  ship- 
owners, yet  tlie\  had  so  coiiiliicted  them- 
selves, or  so  contracted  with  the  shippers 
of  the  goods,  as  to  make  themselves  per- 
Komilly  i'es|ionsilile."  And  on  a  full  e.\- 
nmination  of  these  two  (|iiestioiis,  the 
conclusion  was  ieachi'<l,  coiiciirred  in  by 
all  the  other  judges,  that  the  goods  were 
not  carried  under  any  coiitiact  under 
which  the  defendants  were  |)ersoniilly  li- 
able, but  were  cairied  under  the  bill  of 
liMliiig  signed  in  the  ordinary  way  by  the 
captain  of  the  ship,  and  binding  as  be- 
tween the  plaintiDs  and  the  shipowners, 
whose  captain  he  was  ;  and  tlie  judgment 
of  Denman,  J.,  was  aiiliined. 


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270 


COMMENTARIES   ON   SALES. 


[book  II, 


tiff,  as  owner  of  the  cargo,  for  which  ho  sou^lit  indomnity  a^jainst 
the  defendants,  the  Prcncli  shiinowners.  The  defendants  jrave  up 
the  ship  and  freiglit  to  the  shipper,  so  that,  by  the  alle^'od  law 
of  Prance,  the  abandonment  absolved  tliom  from  all  further  lia- 
bility  on  the  contract  of  the  master.  By  the  English  law,  a  8lii|i- 
owner,  under  such  circumstances,  is  liable  personally,  nml  nut 
merely  to  the  value  of  the  ship  and  freight.  It  was  held  thiit  the 
parties  must  be  taken  to  have  submitted  themselves,  when  inakin},' 
the  charter-party,  to  the  French  law  as  the  law  of  the  ship,  and, 
therefore,  that  assuming  the  law  of  France  to  be  as  alleged,  the 
plaintiff's  claim  was  absolutely  barred. • 

On  April  19,  1875,  an  Austrian  ship,  vn'h  a  valuable  cargo  on 
board,  ran  upon  a  rock  on  the  eastern  side  of  Algoa  liay,  dis- 
tant fifty  miles  by  sea  and  about  eighty  miles  by  land  from  Port 
Elizabeth.  The  Austrian  consul  at  Port  Elizabeth  came  to  tliu 
spot,  and  there  being  no  hope  of  getting  the  vessel  off',  he  advised 
the  master  to  sell  her  with  the  cargo.  The  master  acconlin;rly 
advertised  the  ship  and  cargo  for  sale,  and  they  were  sold  in 
one  lot  by  auction,  on  April  30,  for  ,£9,500,  after  a  brisk  com- 
petition. The  purchaser  got  some  part  of  the  cargo  out  of  the 
wreck,  but  on  June  19,  the  ship  went  to  pieces  with  the  rest 
of  the  cargo  on  board.  The  owners  of  the  cargo  having  aban- 
doned it  to  the  underwriters  as  a  total  loss,  the  underwriters  liled 
their  bill  to  have  the  goods  which  had  been  brought  to  land,  de- 
livered to  them  as  not  having  been  effectually  sold.  The  master 
had  not  gone  to  Port  Elizabeth,  nor  endeavored  to  procure  funds 
to  enable  him  to  save  the  cargo ;  nor  had  he  made  any  cltort  to 
induce  any  persons  to  undertake  the  salvage  of  the  cargo.  Sev- 
eral witnesses  at  Port  Elizabeth  deposed  that  in  their  opinion  no 
person  could  have  been  induced  to  undertake  the  salvage ;  others 
gave  their  opinion  that  offers  to  save  the  cargo  could  have  been 
obtained  if  a  large  percen^^'^g-"  of  the  net  proceeds  had  been  offered. 
There  was  a  good  deal  of  evidence  to  show  that,  in  the  opinion  of 
persons  on  the  spot,  the  course  which  had  been  adopted  of  selling 
the  wreck  and  cargo,  was  the  most  advisable  one  in  the  interest 
of  all  parties  concerned.  And  it  was  held  by  the  Court  of  Ap- 
peal (afhrming  the  decision  of  the  Master  of  the  Rolls),  that  no 

ertson  v.  Jackson,  2  C.  B.  412;  Ilmlson  i: 
t'lpiiientson,  18  C.  B.  213;  25  L.  J.  C.  I'. 
234;  Gattorno  v.  Adiuiis,  2  15.  &  <'.  Sn.i; 
Simonds  v.  White,  2  B.  &  C.  ,Si»5 ;  The 
Peninsular  &  Oriental  Co.  v.  .Sliand,  11 
Jur.  N.  s.  771  ;  Brown  v.  Cnuey,  not« 
to  Lacon  v.  Higfjins,  D.  &  U.  41,  n.;  Dun- 
can V.  Benson,  1  Ex.  .'537;  Benson  f.  Chap- 
man, 2  H.  L.  Cas.  696. 


»  Lloyd  V.  Guibert,  L.  R.  1  Q.  B.  11.5, 
in  the  Exchequer  chanil)er,  affirming  the 
judgment  of  the  Court  oi  Queen's  Bench, 
33  L.  J.  Q.  B.  241.  See  also  Dakin  v. 
Oxley,  15  C.  B.  N.  s.  646  ;  33  L.  J.  C.  P. 
115  ;  Blrtsco  V.  Fletcher,  14  C.  B.  n.  8. 
147;  32  L.  J.  C.  P.  284;  Arayo  v.  Cut- 
rell,  1  La.  628  ;  Pope  v.  Nickcrson,  3 
Story,  465;  Dunintz  i-.  Hart,  2  Moo.  P.  C. 
N.  8.  289;  33  L.  J.  P.  M.  &  A.  116;  Bob- 


PART  IV.]  SHIPMASTEnS  AS   AGENTS  OF  NECESSITY. 


277 


sucli  necessity  was  proved  to  have  existed  as  would  make  the  mns- 
ter  the  au'ciit  of  tlio  owium's  of  the  cargo  to  effect  a  sale ;  that  the 
sail'  was  v<»iil;  and  that  the  plaintiffs  were  entitled  to  the  cargo 
siivod.  subject  to  a  pro{>cr  allowance  for  salvage  and  other 
cxiiriiscs.' 

In  the  Julia  Itlake,^  the  United  States  Supreme  Court  laid  down 
the  law  as  to  the  powers  of  the  ship-master  to  sell  or  hypothecate 
till'  (- iiro,  in  tlie  same  manner  as  has  hecn  done  in  the  English 
cases,  namely,  that  the  master  can  neither  sell  nor  hyjtolliecato 
the  i'arj,'(),  except  in  case  of  urgent  necessity,  and  his  authority 
for  that  purpose  is  no  more  than  may  reasonably  be  implied  from 
the  linunistanecs  in  which  ho  is  placed,  lie  acts  for  the  owner 
of  the  cargo  because  there  is  a  necessity  for  some  one  to  do  so, 
and,  like  every  agent  whoso  authority  arises  by  implication  of 
law,  he  can  only  do  what  the  owner,  if  present,  ought  to  do.  Ne- 
cessity develops  his  authority  and  limits  his  powers.     What  he 


'  Atlantic  Mutual  Ins.  Co.  v.  Iluth, 
Ifl  (  li.   Hiv.  474.      Cotton,  I..  J,,  in  de- 

liviiini;  tln'  jii(lj,Mncnt  of  tlii;  Court  of  Aj)- 
]K'»I,  laiil  down  the  following  |ii'ini-i]>U's  : 
"Till'  mil'  liiid  down  iti  the  cases  wiiero 
the  Silica  of  ('iirj,'o  have  been  (lUCMtioneil 
is,  tiiiit  tlif  master  becomes  agent  for  salo 
cf  till'  i.'iiif,'o  ;  that  is,  ha.s  authority  to 
8tll,  sii  us  to  hind  the  owiuts  of  the  goods 
t'litnistt'd  to  him  for  a  dillereiit  jturjiose, 
naiiiily,  caniaije  to  their  port  of  destina- 
titiii,  (iiily  where  there  is  a  necessity  for 
tli.'it  ciiiirse,  and  that  it  lies  on  those 
wiio  ciiiiin  title  to  cargo,  as  (lurchasers 
from  till'  (iiiitain,  to  prove  tliat  this  ne- 
cessity dearly  existed  ;  fnrtlier,  that  it  is 
nnt  Miliicient  to  prove  that  the  master 
tiioii^jlit  he  was  doing  the  best  for  all  eon- 
ei'iiied,  or  even  that  the  cour.«'  adopted 
WHS,  so  liir  as  can  be  aacertainej,  the  best 
fur  111!  coMcerniMl.  (.*>ee  Tronson  v.  Dent, 
8  Moo.  1'.  C.  41!t;  Aeatosv.  Burns,  3  Ex. 
I>. 'JMi.)  The  principle  is,  that  the  mas- 
ter is  iiutliorized  by  the  owners  only  to 
coMvpy  tlie  goods  to  the  jwrt  of  discharge, 
ami  that  nothing  but  necessity  can  au- 
tlinii/i'  iiliii  to  adopt  any  other  course  of 
aetiiiii.  \Vc  do  not  enter  into  the  nues- 
liiin  whether  what  will  justily  a  sale  is 
to  he  called  extreme  or  stringent,  or  the 
stroiii,'e>t  necessity,  or  commercial  neces- 
sity, ill  our  opinion,  })ur('hasers  of  cargo 
fiiiiii  a  master  cannot  justify  the  sale  un- 
less it  is  estalilished  that  the  master  used 
all  reasonable  elloits  to  have  the  goods 
coiivived  to  their  destination,  and  that  he 
eonld  iidt  by  any  Tiieans  available  to  him 
eaiiy  tlie  goods,  or  prooure  the  goods  to 
ne  (ariiid,  to  their  destination  as  mer- 
clmutahlu   articles,   or  could  not  do  so 


without  an  exjwnditure  clearly  exceeding 
their  value  after  their  arrival  at  their  des- 
tination. Here  the  sale  was  of  the  ship 
and  cargo  as  an  entirety,  and  a  large  and 
valuable  part  of  the  cargo  was  tin,  which, 
if  saved  from  the  wreck,  would  have  been 
practically  uninjured,  and  certainly  ca- 
llable of  being  sent  on  in  a  nieichantable 
state.  The  <|uestion  therefore  is,  whether 
it  is  established  that  the  master  could 
not,  with  the  means  available  to  him, 
have  landed,  or  procured  to  be  landed, 
at  lea.st  this  portion  of  the  cargo."  And, 
then,  after  stating  the  facts,  —  "  It  is,  in 
our  opinion,  umler  these  circumstances, 
impossible  to  hold  that  it  is  established 
that  the  captain  could  not  have  induced 
some  person  to  undertake  the  salvage  of 
the  cargo.  Certainly  the  master  did  not 
use  all  means  within  his  power,  or  make 
any  ell'ott  either  to  (uocure  funds  for  en- 
abling him  to  save  tlie  cargo,  or  to  induce 
others  to  save  the  cargo.  For  both  rea- 
sons, We  are  of  opinion  that  it  is  not  shown 
that  there  was  such  a  necessity  for  the 
sale  as  would  authorize  tin'  master  to  sell, 
or  !nake  him  the  agent  of  the  owners  for 
thiit  purpose."  See  further.  The  Karnak, 
L.  U,  2  I'.  C.  5(1.1,  512;  The  (Iratitudine,  3 
C.  Uob.  240,  '258  ;  The  Au.stralia,  Swab. 
480;  The  Margaret  Mitchell,  Swab.  382; 
llayman  r.  Molton,  5  Ksp.  65;  I'ndcrwooil 
V.  Hobertson,  4  Camp.  138;  Freeman  v.  Kast 
India  Co.,  5  B.  &  Aid.  617;  The  Segiedo, 
1  Spinks,  36;  The  Kliza  Cornish,  1  Spinks, 
46,  47;  The  Theodore,  Swab.  351  ;  The 
Firefly,  Swab.  240;  Idle  v.  Hoyal  Ex.  Ass. 
Co.,  3  Br.  &  B.  151;  The  Glasgow,  Swab. 
145. 

a  107  U.  S.  418. 


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278 


COMMENTARIES  ON  SALES. 


[book  U, 


uoea  must  be  directly  or  indirectly  for  the  benefit  of  the  cargo, 
ooiisidcrin*;  the  situation  in  which  it  has  been  placed  by  the  acci- 
dents of  the  voyage.* 

And  the  louder,  upon  the  hypothecation  of  the  cargo  by  a  mas- 
ter of  the  vessel  under  his  implied  authority,  is  chargeable  witli 
notice  of  the  facts  on  which  the  master  appears  to  rely  as  a  jiisti- 
ficatiou  for  "vhat  he  is  doing.  Such  a  lender  is  presumed  to  know 
that  the  power  of  the  master  is  to  be  determined  by  tlie  nccossi- 
ties  of  the  case  in  their  legal  operation  oji  the  owner  of  tlio  lai^'o, 
As  necessity  creat'^^a  the  agency,  and  that  only  can  be  aiithoiizwl 
whic''.,  under  tlie  circumstances,  is  reasonable  and  just,  lie  must 
make  !>"s  own  inquiries  and  judge  for  himself,  and  at  b.is  own  risk, 
whether  if  the  owner  were  present,  he  would  do  or  ought  to  do 
that,  or  something  c<iuivalent,  which  the  master  is  undertakiii<,'to 
do  for  him  in  !iiti  absence.  A  lender  cannot  shut  his  eyes  to  ex- 
isting facts  as  they  appear,  or,  by  reasonable  incjuiry,  couM  be 
made  to  »])pear,  and  treat  with  the  master  as  a  general  agent.  Iiav- 
ing  authority  to  do  not  only  what  the  owner  ought  to  do,  but  what 
he  might  do  ii  he  chose,  li-ufore  there  can  bo  a  recovery  a<i:iiiist 
the  owner,  it  must  be  shown  that  the  circumstanci^s  were  siicli  as 
to  n)ake  it  apparently  proper  for  the  master  to  do  what  In;  has 
done.  To  this  extent  the  burden  of  |>roof  is  clearly  on  the  Icinlcr. 
The  rule  is  applied  also  to  the  hy|)othecation  of  the  ship  by  the 
masttv,  wl  ere  less  strictness  will  ordinarily  be  required  than  in 
the  hypothecation  of  the  cargo,  because  the  master  is  the  appoiiitod 
agent  of  the  owner  of  the  ship,  but  the  involuntary  agent  of  tiie 
owner  of  the  eargo.'^ 

And  where  it  is  for  the  interest  of  the  shipper  that  his  proiicity 
should  be  forwarded  by  some  other  vessel  ratlier  than  that  it  shmM 
bo  hyputihocated  to  pay  for  repairs,  and  where  the  facts  point  to 
the  conclusion  that  such  repairs  could  not  be  effected  without  an 
expense  to  him  of  more  than  it  would  cost  to  reclaim  his  pnipertr. 
to  pay  all  lawful  charges  on  it,  and  to  send  it  forward  In  .soiuc 
other  conveyance;  the  master  has  no  authority  to  pledge  the 
ca'go  without  the  consent  of  the  shipper  or  consignees.'' 

Maritime  hypothecations  had  their  origin  in  the  neeessilleH  of 
CO  nmerce,  and  they  are  said  to  be  the  creatures  of  necessity  ami 
distress.  When  j)roperly  authorized  and  duly  executed,  they  mo 
o   a  high  and  privileged  character,  and  are  held  in  gn^it  sanctify 


'  Tim  (JiatiUKliiio,  3  (  .  Uob.  240,  2'n ; 
Duncan  v.  Iti'iiHim,  1  Kxcti.  iV)';  Th« 
Onwiir.l.  I-.  It.  4  A.l.  &  !■;.•.  :?3,  f)7;  Hohh 
V.  Til.'  Slii].  A.tiv.-,  'J  Wnsli.  C.  ('.  228, 
2:<7;  Tim  I'ackct.  3  .Miis..n, 'i'l.';,  2.19;  Npw 
England  Ins.  Co.  v.  TItu  Surali  Ann,  13 


I'ot.  3S7,  400  ;  Tlh-  Atn.-li.-.  (5  V'.Jl. 
18,  27. 

a  Tlio  Aiirorn,  1  Wli.  at.  Ort;  Tlioinn^  v. 
(>M!.(irn,  lit  Mow.  22;  TIm'  Ainrlif,  i!  W.  1 
18;  Till'  (JniiM-sl.ot,  l>  Willi.  1-Jy;  'ni« 
Lulu,  10  Wall.  llfj. 

*  Tlio  Julitt  Uluki',  giiprn. 


ART  IV.] 


SHIPMASTERS   AS   AGENTS  OF   NECESSITY. 


879 


()y  maritime  courts.^  The  United  States  Supreme  Court  held,  in 
Insurance  Company  v.  Gosslor,^  in  the  case  of  a  bottomry  bond, 
that  as  long  as  the  ship  exists  in  specie,  the  bond  attached  to  her, 
and  that,  under  the  terms  of  the  bond  in  this  case,  the  bond-hold- 
ers liad  a  claim  on  the  cargo  saved  as  against  the  underwriters 
on  it  to  witom  it  had  been  abandoned  and  assigned,  for  the  unpaid 
balanco  on  the  bond. 

In  T'  )inas  v.  Osborn,''  it  was  conceded  that,  in  England,  it  has 
been  J"!initoly  settled  that  by  the  law  of  England  the  master  of 
a  ship  h.iS  not  power  to  create  a  lien  on  the  vessel  for  the  payment 
for  repairs  and  supplies  obtained  in  a  foreign  port,  save  by  a  bot- 
tomry hi)iid ;  that  ho  can  only  pledge  his  own  credit  and  that 
of  his  owners,  but  cannot,  by  any  act  .if  his,  give  the  creditor 
secnritv  on  the  vessel,  while,  at  the  sani'.;  iime,  the  personal  liabil- 
ity of  the  owners  continues.  These  decisions  rest  u|)on  the  want 
of  authority  in  the  master,  to  create,  by  his  own  act,  an  absolute 
hypothi'cution  of  the  vessel  as  security  for  a  loan.  Hut,  it  was 
artiniicd  that  the  maritime  law  of  the  United  States  is  settled 
otherwise,  in  harmony  with  the  ancient  and  general  maritime  law 
of  the  coniiucrcial  world ;  that  the  master  of  a  vessel  of  the  United 
States  being  in  a  foreign  port,  has  |)ower,  in  case  of  necessity,  to 
hypothoeate  the  vessel,  and  also  to  bind  himself  and  the  owners, 
|)ersnnally,  for  repairs  and  supplies,  and  that  he  does  so  without 
any  express  hypothecation,  viicn,  in  a  case  of  neee8:;ity,  he  ob- 
tains them  on  the  credit  of  the  '.essel  without  a  bottomry  bond.* 

Hut  the  liinitation  of  the  authority  of  the  maater  to  cases  of 
necessity,  not  only  of  repairs  and  supplies,  but  of  credit  to  obtain 
tiieni,  and  the  retpiirement  that  the  lender  or  furnisher  should 
see  to  it,  that,  apparently,  such  a  ease  of  necessity  exists,  are  as 
ancient:*"  !  well  established  as  tlie  authority  itself/' 

To  eoi.  itute  a  :u-,e  of  apparent  necessity,  not  only  must  the 
repairs  and  supplies  le  needful,  but  it  must  be  apparently  neces- 
sary for  the  m;  ^ter  to  have  a  credit  to  procure  them.  If  the  mas- 
ter has  funds  of  his  own,  which  lie  ought  to  apply  to  purchase  the 
supplies  wliii'h  he  is  bound  by  the  contract  of  hiring  to  furnish 
liiniself ;  and  if  he  has  funds  of  the  owners,  which  lie  ought  to  ap- 
ply to  pay  for  the  repairs,  then  no  ease  of  actual  necessiiy  to  have 


'  n<'  Viliiliii,  1  W.  Roh.  1 ;  Till'  Wh.uhx- 
mantli,',  1  |),„1.  201;  Tlio  Hero,  '.:  11...1. 
13|i;  Till'  Ki'ioHTsloy  Oiujtlu,  3  Ilugg.  1. 

'  '.'<>  I'.  S.  (iir), 

«  t!»  How.  '>'2. 

*  Thi'  ^liiii  (J.'nnrftl  Smiih,  4  Wlirnt. 
ISS;  I'lyioux  V.  Howiinl,  7  I't'liTs,  :t2», 
•W  ;  rii,«  Virgin,  8  I'i'Iitm,  jIMS  ;  Tho 
Nwtor,  1  Si.piy,  7;t  ;  TIk-CIuisiki,  2  Story, 


4:.:.  ;  Tho  rii.f Im',  Watv's  R.  2(i«  ;  D.ivU 
V.  CUM,  Diiv.'is"  1{.  I'J.  71  ;  Tl..' Willliim 
iiiiil  Ktii<'liiii>,  1  ltlat<'li.  &  ll.<))!  ;  I)ii;i.s  ". 
A  Ni'W  llriji,  (iilpiii'.s  U.  487  •  .Sarchi-l  t«. 
Th.'  Mavis.  Cial.l..''s  W.  186. 

»  .).  14,  1,  7  ;  Coiiaiilat  M  Mure,  ch. 
107  ;  Viiliii.  art.  li)  ;  Fmcrifjoti,  >"<iii.  h  la 
(Jroiic,  oil.  4,  s.  8  ;  lkmliiy-1'iU  v  Cu'irs  «!• 
Druit  ( Oin.  lit.  I.  hoc.  2  ;  tit.  IV.  sec.  14. 


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280 


COMMENTARIES  ON   SALES. 


[book  II. 


a  credit  exists.  And  if  the  lender  knows  these  facts,  or  lias  the 
means,  by  the  use  of  duo  dilij^cnce,  to  ascertain  them,  thou  no 
case  of  apparent  necessity  exists  to  have  a  credit ;  and  the  act  of 
the  master  in  procuring  a  credit  docs  not  bind  the  interest  of  the 
general  owners  in  the  vessel.^  On  the  application  of  these  prin- 
ciples to  the  facts  in  the  case  of  The  Baniue  Laura,''  the  claim 
of  the  lender  was  not  sustained,  as  he  knew  that  the  master 
had  sufficient  funds  for  the  necessary  su]iplies  and  repuirs  uf 
the  vessel. 

The  vessel  under  the  maritime  law  in  the  United  States  is  not 
subject  to  a  lien  for  a  common  debt  of  the  master  or  owner.  To 
sustain  such  a  lien  for  supplies  or  repairs,  there  must  be  ti.e  same 
case  of  pressing  necessity,  as  would,  for  the  like  purpose,  justify  a 
loan  of  money  on  bottomry.  The  supply  must  be  not  only  nally  ur 
apparently  necessary  at  the  time  it  is  furnished,  but  the  burden  of 
proof  is  on  the  libellant  to  show  that  tlicre  was  also  a  neiissity, 
at  the  time  of  procuring  the  supplies,  for  a  credit  upon  the  vessel. 
This  proof  is  as  essential  as  tliat  of  the  necessity  of  the  article 
itself.a 

The  mere  fact  of  the  master  l)eing  owner,  of  itself,  does  nut  ex- 
clude the  possibility  of  a  case  of  necessity  that  would  justify  an 
implied  hypothecation  ;  but  it  is,  undoubtedly,  a  circuinstaiici'  that 
should  be  attended  to  in  ascertaining  wiiethcr  any  such  ntjcessity 
existed  in  the  particular  case.* 

The  following  principles  were  laid  down  by  the  .Supreme  Court 
of  the  United  States  in  The  Grapcshot,^  and  ap|)r(»vcd  ami  fol- 
lowed inTlicGuy:'*  1.  Liens  for  repairs  and  supplies,  wl  ither 
implied  or  expressed,  can  be  enforced  in  admiralty  only  upon  ])\w{ 
made  by  the  creditor  that  the  repairs  or  supplies  were  inM-essary, 
or  believed,  upon  duo  in(|uiry  and  credibie  r(>presentatii)ii,  to  l)e 
necessary.  2.  VVIuM'e  proof  is  made  of  necessity  for  the  n'|iair8 
or  supplies,  or  for  funds  raised  to  pay  for  them  by  the  master, 
and  of  (credit  given  to  the  ship,  a  presuin|>tion  will  arise,  cm- 
elusive  in  the  absence  of  cvidenius  to  the  contrary,  of  necessity 
for  credit.  3.  Necessity  for  repairs  and  supplies  is  proved  where 
such  circumstances  of  e:  gency  arc  shown  as  would  indiiee  a  prii- 
dent  owner,  if  present,  to  order  them,  or  to  proviile  futids  for 
the  cost  i)f  them  on  the  security  of  the  ship.  4.  The  orderiiiL'.  liy 
the  master,  of  supplies  or  repairs  u|H)n  the  credit  of  the  sliip,  is 


1  Tltc  Miii-iiuo  Luuiit,  Tboiiiaav.  Osbort), 
It  How.  22. 

a  //'/./. 

'  Tin'  Stoaiiil)oiit  Saltiina,  Pratt  v. 
Reed,  ID  How.  Ml*. 

«  The  Soplii,..  1  Will.  Uob.  369. 

»  9  Wall.  12l»,  141. 


*  !»  Willi.  7r.S.  Ami  sec  Til.'  H'U'wl 
Siiiitli,  4  Wheat.  44:»;  I'eyioiix  '•.  Ihht.inl, 
7  Pi't.  ;J'-M  ;  llik'  .Nestor,  1  Sumiii.  el; 
The  Foiiilinlr,  :>'8iiiim.  'j;!2.  -J I'!;  I'l'" 
I'.  Iteil,  li»  How.  U.'iii;  Thoiimi  r  (i.lKirn, 
lit  How.  '2\);  The  Aurora,  1  \Vh..it.  'J«, 
105 ;  The  Virgin,  8  IVlers,  55.'i. 


PART  IV.]  SHIPMASTERS   AS   AGENTS  OF   NECESSITY. 


281 


sutVieiont  proof  of  sucli  necessity  to  support  an  implied  hypotheca- 
tion in  favor  of  the  material-man,  or  of  the  ordinary  lender  of 
luoiioy  to  meet  the  wants  of  the  ship,  who  acts  in  good  faith. 
5.  To  sii|)port  hyjiothecation  by  bottomry,  evidence  of  actual  ne- 
cessity i'or  repairs  and  supplies  is  re(|uired  ;  and,  if  the  fact  of 
iieci'ssity  l»e  left  unproved,  evidence  is  also  recjuircd  of  due  in- 
(juiiy  and  of  reasonable  grounds  of  belief  that  the  necessity  was 
rciil  and  cNigent.' 

Tin;  presiunption  of  law  always  Is,  in  the  absence  of  fraud  or 
(!(illiision,  that  where  advances  are  made  to  a  captain  in  a  for- 
ci^'ii  port,  ujion  his  re(|uest,  to  pay  for  necessary  repairs  or  sup- 
plies to  enalile  his  vessel  to  prosecute  her  voyage,  or  to  pay  harbor 
(lues  or  for  pilotage,  towage,  and  like  services  rendered  to  the 
vi'sscl,  tliiit  they  are  made  upon  the  credit  of  the  vessel  as  well 
as  upon  that  of  the  owners.  It  is  not  necessary  to  the  existence 
of  the  iiypothecation  that  there  should  be  in  terms  any  express 
plcdirt'  of  the  vessel,  or  any  stipulation  that  the  credit  shall  be 
^ivci  on  hor  accoimt.  The  presumption  arises  that  such  is  the 
fact  from  tlie  necessities  of  the  "essel  and  the  position  of  the  par- 
ties considered  with  reference  to  the  motives  which  generally  gov- 
ern the  conduct  of  individuals.     Moneys  are  not  unsually  loaned 


>  in  th.'  ciiHc  Df  Till'  Aniilic,  fi  Wall.  18 
(itw  till' tnits  as  Ntnttd  iiiilr,  'Jl'.!),  it  wns 
iiisiMrd    that    fvi'ii    if   llif   ciiouiu.slaiii'r.s 

I'lilil Inl    «itii    till-    .sale  111'  till"    Vfsscl  hy 

till'  iiiaslfi  wi'ic  HUcli  as  to  jiistiiy  the  sale 
ami  I'l^n  a  valiil  titli*  to  tlic  |iiii'i'liasfi',  li<-, 
ni'Viiihcli'ss,  took  tlic  titli'  Mil)j('ri  to  all 
cxi^tiiii;  liens.  'I'lic  Siiprciiic  ('unit,  ill 
hoMin,'  uilitTvvisc,  said  :  "  If  this  jiositiou 
Wen-  Miiiiid,  it  woiihl  iiiutiTially  atti'ct  iho 
iiilirrsi,  lit  roiiiiiii-i'i'c  ;  lor,  as  i-xij^ti  cics 
art'  ^l'l|^|,llltly  aiisiii;;,  itM|iiiiiii({  thf  iii,  ster 
tii  ti  iMiin.ili'  the  voyafic  us  hopcli'ss,  and 
soil  the  innperty  ill  lii'^  ('liar;;c  tor  tin' 
lii;;lie>l  |iiiee  he  call  p't,  Would  any  man 
ot  ii.iiiiii.ili  liilldeliee  Imy  a  ship  sold  under 

sileli  iiivuuis'.al s,    il'    lie  took    the   tilh' 

I'liiMiinlrt  red  with  seerct  liens,  alioiit  wliiill, 
ill  thi'  ^'re:it  niajoiity  of  ca-ies,  he  (ouhl 
lint  liive  ihi'  o|>|ioitniiity  of  leaniiii};  aiiy- 
tliin;;  /  The  jjround  on  wliiili  the  ri;^iit 
to  sell  lists  is,  that  ill  casi' of  disaster,  tlio 
mastii,  fmni  iiecM'ssitv,  liceonies  the  a;;eiit 
ot  all  the  jiaiiies  ill  interest,  and  is  liouiid 
to  ill,  ilie  liest  for  thfiii  that  111'  eiiii,  in  tlio 
■'ii,.|iiiiHi  ill  which  III'  is  iilaced,  iiiid, 
tliiiiluie,  hiis  the  |)ow  T  to  disposi'  of  tliu 
|iiii|"  iiy  fur  tli.'ir  iH'tielit.      When  iititliiii;? 

Ix'tler  ran  lie  done  for  llle  interest  of  those 

'oiiceriii'd  ill  the  ]irii|M'rly  than  to  sell,  it 
is  II  IM.M'  of  necessity,  and  an  the  iiiiiHlur 
^I'N  fur  all,  and  is  "tl,  •  ap'iit  of  all,  lie 
■<|'IU  lis  Well  for  \\,.-  lien-holder  «.s  tlio 
"wiicr.    Till!  very  object  of  ihu  sale,  ac- 


cordin<.j  to  the  iiiiifortn  lurrciit  of  tlio 
de<'isii>ns,  is  to  save  soniethiii),'  for  tlie 
iH'iieflt  of  all  concerned,  and  if  this  i.s  8o, 
the  proceeiLs  of  tile  ship,  liecc  s.sarily,  liy 
operation  of  law,  .stand  in  place  of  tho 
ship.  If  the  ship  can  only  he  sold  in  case 
of  necessity,  where  the  (^ooil  faith  of  the 
master  is  iiiiipiestioiied,  ami  if  it  he  the 
Jiiirpose  of  the  sale  to  save  soniethiii^  for 
the  )iarties  in  iiiteie>l,  does  not  solilid 
Jiolicy  recpijre  a  clean  title  to  he  j,Mve!i  tiie 
jainhaser  in  onler  that  the  property  may 
liriii>{  its  full  value  '  If  the  sale  is  iiii- 
jieached,  the  law  iiii|«)sesoii  the  purchaser 
the  hiiiden  of  showing  the  necessity  for  it, 
and  this  he  is  in  a  po>ilioii  to  do,  iHiau.so 
the  f.uts  which  constitute  the  Ic^jal  neces- 
sity are  within  his  reach  ;  hut  he  cannot 
know,  nor  lie  expected  to  know,  in  tli« 
exercise  of  reasonalile  diiij,'ence,  the  nature 
and  extent  of  tin-  liens  that  have  attached 

to  the  vessel.  Without  plllsuill},'  the  sub- 
ject furl  her,  we  are  clearly  of  the  opinion, 
when  till  ship  is  lawfully  sohl,  the  pur- 
chaser takes  an  absolute  title  devested  of 
all  lii'iis,  ainl  that  the  liens  are  '. rails I'er red 
to  the  proceeds  of  the  ship,  which,  in  the 
sense  of  the  adiniialty  law,  Immoiiii'  the 
Hlllistitllte  for  the  ship."  See,  further  lUt 
to  the  liability  of  the  vessel,  in  inn,  for 
iieei'ssaricH  and  repairs,  allirming  the  hold- 
iiiK  in  The  tirajicshot,  l»  Wall.  I'Ji)  ;  Tiie 
I.iilii.  10  Wall,  llf2  ;  The  Kaluruina, 
lb.  20i  ;  The  Custer,  10.  2l.'>. 


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282 


COMMENTARIES  ON   SALES. 


[book  II. 


to  strangers,  residents  of  distant  and  foreign  countries,  without 
security,  and  it  would  be  a  violent  presumption  to  suppose  that 
any  sucli  course  was  adopted  when  ample  security  in  the  vessel 
was  lying  before  the  parties.  The  presumption,  therefore,  that 
advances  in  such  cases  are  made  u[)on  the  credit  of  the  vessel,  is 
not  repelled  by  any  loose  and  uncertain  testimony  as  to  tiie  siifn 
positious  or  understandings  of  one  of  the  parties.  It  can  be  ic- 
pellcd  only  by  clear  and  satisfactory  proof  tiiat  the  master  was  ii> 
possession  of  funds  applicable  to  the  e.vpensos,  or  of  a  credit  of 
his  own,  or  of  the  owners  of  his  vessel,  upon  which  funds  could  bo 
raised  by  the  exercise  of  reasonable  diligence,  and  that  the  posst.s- 
sion  of  such  funds  or  credit  was  known  to  the  party  making'  the 
advances,  or  could  readily  have  been  ascertained  by  proper  in.jiiiiv. 
Acting  on.  these  princi[)les  it  was  held  in  The  Kiuily  Soudci-,'  thut 
drafts  for  such  expenses  were  only  conditional  p.iymuat,  and,  on 
their  n()n-|)ayment,  a  lien  on  the  vessel  could  bo  enforced.'^ 

In  Tlio  Ship  Virgin^  the  following  principles  were  decided  hy 
the  Su|)rem<,>  Court  of  the  Unitod  States:  1.  A  bottomry  bund 
may  be  good  in  part  and  bad  in  p;irt,  and  will  be  upheld  by  a  cdurt 
of  admiralty  to  the  extent  to  which  it  is  valid.  "2.  If  the  supplies 
and  advances  were  necessary  for  the  vessel,  it  is  incumbent  on  the 
owner  to  prove  they  couid  have  been  obtained  on  bis  p(M'S(in;il 
credit.  3,  The  non-existence  of  funds,  and  the  inability  of  the 
master  to  get  at  them,  are  equally  valid  causes  for  a  bottomry.  1.  A 
bottomry  bond,  given  by  the  master  after  the  advances  bad  all 
been  made,  is  valid,  providing  they  were  made  with  an  uiidor- 
standing  that  such  a  bond  would  1)0  given.  5.  If  the  master 
changes  his  voyage,  without  any  participation  or  fraudulent  inttiit 
of  the  bottomry  lender,  the  security  is  not  thereby  invaiid^itt'ii. 
6.  If  the  owner  receives  the  vessel,  upon  a  8tipnlati(m  to  pay  into 
court  its  appraised  value,  with  interest  and  costs,  lie  cannot  insist 
on  allowances  because  he  lias  discharged  liens  for  -ioameij's  waii's; 
and  if  much  dtday  has  inter. eiied,  of  whieh  he  has  had  tlie  hnn'- 
fit,  he  must  p:iy  interest.  7.  A  bottomry  bond  doe.'  not  make  the 
owners,  personally,  debtors.* 

'IMie  master  of  a  n;.ui.sh  vi>*4>*cl  being  without  funds  and  credit 
at  llaml)urg,  in  onior  to  obtain  nee(\ssaries  t  enable  his  vessel  to 
proceed  on  a  voyage  to  Alrica  an<i  back  to  London,  obtaimd  a 
loan  on  the  securiiy  of  instruments  by  wldch  he  pledged  his  vcs- 

'   17  Willi.  »')fUi.  i<  8  IVtcrs.  .'..IS. 

•■'  S^'oTlicOniiii'shot,  0  Wall.  12!"  :  Tho  ♦  On    tli.-i.'   j)"'"t9.   S'"0  The  T.iit:ir,  1 

L'\lii,   ID   Wall.    I'.i'i;    rii-   Kiilownm,   )0  Ii.iL'^'.  Ad.  1.  I'J;  Tli.-  V.l\>'u,  L.  H.  4  Ail. 

\V.sll.  -h  ,  .  Tl.(!   Patiipsn.,  13   Willi    :i-J!t;  k    V.r..    1;   Tlir   IiidoMiiCiM.',   Swat).  4W: 

Tli.^    lunUall,    ;i    Wall.    37;   Tho  Bark  The  Ndsoii,  1  Hiigg.  Ad.  U;».  UU. 
Ohusaii,  ■>  .StDiy,    15(1. 


PART  IV.]  SHIPMASTKBS    A8    AGENTS  OP  NECESSITY. 


283 


«el  and  bound  liimsclf  for  tlic  repayment  of  the  sum  ailvanccd, 
H'itliiu  six  days  after  the  arrival  of  the  vessel  in  London  No 
sUuiihUiou  WHS  nuulo  for  interest  oi  any  kind.  Held  in  au  action 
of  liottoinry  instituted  in  aJnuir.ilty  aji-ainst  the  vissel,  that  the 
iiisi'riiiiK'nts  were  valid  bottoniry  bonds,  an  I  (hat  the  holdei"^  were; 
until  led  to  paynu'iit  out  uf  the  procceiis  of  the  vessel,  of  the  sum 
mivani'ed,to«ifetl»or  witlj  four  per  cent  interest  from  the  time  when 
the  i Minds  lu-eamo  due.' 

l;i  :in  ;icti()u  on  a  bottoniiy  bond  granted  at  a  forciif!)  port  on 
»hi|).  carut),  and  f relight,  the  owners  of  ihe  eargo  j»i(  aded  that  the 
uKist.  r  might  liave  counnunicated  with  them  before  hypothecatin}; 
tlie  eaiifo,  and  llnit  !»e  had  neglected  to  do  so.  Tlio  plaintiflM  in 
roply  alloii-i'd  that  the  ship  was  an  Italian  sliip,  ;ind  tliat  by  (ho 
hiw  of  Itidy  such  coim/ninication  was  not  ueees.sary.  Tiio  court 
JK'ld,  on  demurrer,  ll;at  tije  reply  was  bad  in  law  ;  that  communi- 
C!itit)n  by  the  master  with  the  eaifro-ovfuer.s,  if  reasonably  praeti- 
calilo,  was  necessary  to  constitute  an  atrency  and  to  ena!>le  him  to 
liyjintiuMMie  the  cargo;  that  the  ,<4ener!'.!  maritime  law  as  adminis- 
ti.'inl  in  Hngland  was  to  be  a|)p!iLMi,  and  not  (he  lex  Lei  contractus ^ 
nor  the  law  of  the  ship's  flatj."'^  On  appeal,  the  Court  of  Appeal 
reversed  the  decision  of  the  court  below,  and  held  (hat  the  owner 
of  c-.W'xo  who  ships  it  in  on  boanl  a  forei'in  vessel,  sliips  it  to  be 
(Ji'al'i  widi  by  tiie  m:'.s(er  aeeordiuii  to  th<'  law  )f  (he  flag,  that 
is,  (lie  law  of  the  country  to  which  tlu"  vessel  belonus,  unless  (hat 
aiidiordy  be  limited  by  express  stipulation  at  the  time  of  the  shif)- 
mont.  ThtM-eforo  a  bond,  made  by  tlie  master  of  a  foreign  ship 
liv|)ntlir>catinsi  cargo  laden  on  hoard  siicli  ship,  if  -lalid  according 
('i(l>e  liiw  of  the  (lag  of  the  8hi|i,  will  be  enforced  i)y  (lit;  Kuglish 
Aijiuiralty  court,  on  (he  arrest  of  the  ship  and  cargo  at  the  port  of 
liOininn  {\hKj  port  of  discharge  witliin  (he  meanini:  of  the  bond), 
altlinULdi  the  conditions  iinpo^'d  bv  Knulish  law  as  essential  to 
tiii>  validity  of  such  bond  bavo  not  Im-i-u  complifd  witlr^ 

hi  The  I'ontida,'*  i(  w.v*  decided  that  to  c.>iisti(u(e  a  valid  bot- 
toiury  boiui  ihe  money  uiusl  l)e  reipured  for  the  necessities  of 
(lie  shin,  and  the  authority  of  the  mas(er  iu  borrow  money  on  bot> 
t"  I  .  liiMsed  on  fuich  necessity.  Reasonable  incjuiries  by  a 
i'.ii  V  in.iy  be  (^videnco  of  his  fnna  Jit/in,  but  will  not  make  a 
I'Oiul  valid  in  rcs|K}.t  of  the  several  ittMus  for  which  it  is  given  to 


'  Tl,o  renilo,  r..  V.  4  IV.  Div.  210. 
.•'.•.•Til,.  KIpis.  I..  K.  4  A'i    &  Kc.  1. 

•  Till'  biiPtauo  atiJ  Miiria,  I..  R.  7  I'r. 
I'ir  1 

'  Til.'  Hii..t*;io  n'vl  (Anr.n,  I,.  It.  7  Pr. 
l>iv.  i:t7.  S.-.'  Tit.  Htmhurj,'h,  Br.  k  I, 
'-'":!:  Kliinwon  r  Tl*'  ''iiasa  Mv.ritim* 
"1  iH-i:.Mk,  2   App.   Ci««.    JJ>«  ;    L!c}  J  v. 


Oiiihcrt,  (..  I!.  1  Q.  n.  \\r,  •  Vuyp  r. 
.\ii-k.T.smi,  3  S»ury,  if>'>  ;  'I'liC  (iliititii- 
•liiic,  3  •'.  K.,K.  240  ;  Tin  Bii(>iin|ii\itii, 
8  M.m.  (\  C.  ».'.»  ;  Til"  K..rimk,  I,  li  2 
P.  »'.  .'iO,';  ;  Th"  Kli/i  f  oitiish,  1  Sj.iakM, 
W  .  I'Ik'  Hallfv.  I,  \i  *-'  P  ('  i;»3 
♦   I.,  t;.  -»  IV  Dp     102,  177. 


I'llilL; 


It-; 


M 


xi 


I::  :i 


284 


COMMENTABIES  ON  SALES. 


[book  II. 


the  full  extent  of  such  items  unless  they  are  actually  and  entirely 
necessary.  Bowcn,  L.  J.,  in  this  case,  said :  "  Shortly  expressed, 
the  rule  of  law  is,  that  tl  e  master  is  only  the  agent  to  bind  the 
cargo-owner  in  the  hour  of  necessity,  and  his  authority  must  be 
measured  by  this  principle."  And  Brett,  M.  R.,  notwithstamling 
his  expressions  in  The  Gaetano  and  Maria,^  which  we  have  (luotcd,* 
said :  "  The  rule  that  a  bond,  though  valid,  is  so  only  to  tliu  ex- 
tent to  which  money  is  needed  for  the  actual  necessities  of  the 
ship,  is  founded  on  the  doctrine,  that,  by  the  law  of  England,  the 
master  has  no  authority  to  bind  the  shipowner  or  cargo-owner, 
except  in  case  of  necessity.  The  rule  should  bo  even  more  strin- 
gent as  regards  the  cargo-owner,  for  the  master  does  ncjt  take 
goods  on  board  as  his  agent,  and  in  not  his  aijent  at  all  uhIchs  an 
overruling  necessity  arises  ilurinij  the  voi/aije.^^^ 

A  claim  for  necessaries  supplied  to  a  ship  does  not  take  priority 
over  a  mortgage  existing  a'c  the  time  the  supplies  were  furnishod, 
and  the  mortgagee  in  possession  is  not  liable  for  necessaries  to 
the  ship,  unless  the  master,  in  ordering  the  necessaries,  was  act- 
ing as  the  agent  of  the  mortgagee.*  And  in  The  Scio,''  it  was 
held  that  mortgagees  of  a  ship  are  entitled  to  payment  in  priority 
to  material-men,  who,  at  the  time  of  supplying  the  materials,  were 
not  in  such  actual  possession  of  the  ship  as  to  give  them  a  posses- 
sory lien  over  her.* 

Transactions  between  the  owner  and  mortgagee  of  the  vessel 
which  might  render  the  voyage  illegal,  cannot  invalidate  a  bot- 
tomry bond  given  by  the  master  to  a  bond  fide  lender,  who  lias 
only  to  look  to  the  facts  that  the  ship  is  in  distress ;  that  the  mas- 
ter has  no  credit,  and  that  the  money  is  required  for  necessary 
purposes.^ 

A  County  (\)urt  having  admiralty  jurisdiction  has  no  greatrr  jur- 
isdiction in  respect  of  u  claim  for  necessaries,  than  that  possessed 


»  L.  R.  7  Pr.  Div.  \ir,. 

*  See  mi /mi,  ji.  'iM,  ii. 

•  See,  also,  lis  to  what.  nro.  ami  wlidt 
are  »<it  in^<'ssiiiii'.>i,  Tlif  Hcinrich  Bjorii, 
L.  R.  8  I'r.  Div.  i:.],  ami  io  !'r.  Div.  44  ; 
Till'  Iliira,  a  \.  &,  K.  Til  (I ;  The  I'eila,  .Swab. 
Si>.i  ;  Tlie  .Vlfxaii.l.T,  1  W.  U(.l..  ;{4(5,  3i)l  ; 
Tlii^  .S,)|.lii«',  1  \V.  Rol).  ;tti8  ;  The  Oci-ail, 
2  VV.  U..l>  2ii8  ;  Til-  Aii!,'nsta,  1  Dod. 
283;  Thedtmi,  l.iish.  154:  'I'lif  [.oclik-l, 
2  W.  Kol).  ;{4  ;  Till'  Klla  .\.  ("lark,  Br.  & 
L.  32  ;  The  I'w..  IvI.mis.  I,  U.  4  P.  C. 
Kil  ;  Tlic  I'a.itic,  Br.  &  L.  'lUi  ;  The 
Jatii.'S  <!iiy,  1  Mi'iicil.  ll'i  ;  The  KalorjHiiii, 
9  Wheat.  40i).  Ami  .s.'e  on  ttie  main 
point  in  nhe  ease,  Tlie  Lonl  Coehraiw, 
2  W.  H*w.  ;t:iti  ;  Tlie  KhiMJcriek  Dhu, 
Mw»b.    177 ;    The  Neiuou,  1  iia^fi.    16U; 


The  Albion,  1  HapK.  33:)  ;  The  Lord  CM\- 
ran.',  2  W.  Hob,  320  ;  The  Himtl.'V.  Lush, 
24  ;  The  Zodiae,  1  Haj^p.  321  ;  tin-  Tar- 
tar, 1  IIa!,%  1.;  TheCalyiKso,  3  ILi;;:;.  U3; 
Uunii  r.  Roberts,  L  K.  1»  C.  it  P.  ;j:il. 

*  Tlie  Troubadour,  L.  11.  1  A.l.  &  Kc. 
.^02.  .See  Tlie  I'aeitie,  Hr.  &  L.  '-'!'.  ;  The 
Salaeirt,  l.usli,  .')45  ;  Front  V.  Oli\. :,  2  K, 
&  B.  301  ;  IIibl)s  1-.  Hos.s,  L.  1!.  1  i^  H. 
f>:H  ;  Milehesoii  r.  Oliver,  .')  K.  &  U.  ll'Jl 
The  .loiiathaii  (inodlme,  .Swab.   i>-l. 

5  i..  U.  1  Ad.  &  Ke.  3.^3. 

«  The  j'a.ilie,  Br.  k  L.  243  ,  Williiinis 
I).  Allsiip,  10  ('.  B.  N.  s.  417. 

'  riie  Marv  Ann,  L.  li.  1  Ad  &  Kc. 
13.  .See  The  Mary  Ann.  L.  I!.  1  A.l.  4 
Ec.  S,  as  to  the  iiiaster'M  lii'n  tiikiiu.:  piece- 
doane  uver  tite  claim  ol  thij  iiioi  tj;  ijj^es. 


MRT  IV.] 


SHIPMASTERS    AS   AGENTS   OF   NECESSITY. 


285 


bv  the  Admiralty  Division  of  the  High  Court,  and,  consequently, 
ciuniot  entertain  an  action  for  necessaries  supplied  to  a  British 
8iiil>,  the  owners  of  winch  are  domiciled  in  Great  Britain.* 

A  suit  for  necessaries  was  instituted  in  llie  Swansea  County 
Court,  in  personam,  against  the  owners,  unlinown,  of  a  foreign 
briir,  wliicli  was,  at  the  time  of  the  institution  of  the  suit,  at 
Swansoii.  It  becoming  necessary  to  issue  a  commission  to  take 
evidence  from  abroad,  which  the  County  Court  could  not  do,  the 
cause  was  transferred  to  the  Admiralty  Court.  It  appeared  that 
tlie  claim  of  the  plaintiffs  was  for  money  advanced  by  them  to 
execute  necessary  repairs  to  the  brig  at  a  British  port,  and  that 
the  money  was  advanced  on  the  security  of  an  instrument  by 
wliicli  the  master  pledged  himself  and  vessel,  and  her  owners,  for 
tiic  npayment  of  the  money,  except  in  case  of  the  total  loss  oi 
the  vessel  on  her  intended  voyage.  It  was  held  that  the  claim 
was  i'ounded  on  bottomry  ;  that  the  County  Court  had  no  juris- 
diction to  entertain  such  a  claim ;  that,  as  the  cause  was  trans- 
ferred from  the  County  Court  to  the  Admiralty  Court,  the  latter 
had  no  jurisdiction,  either,  to  entertain  the  suit;  and  that  it  was 
not  competent  for  the  plaintiffs,  upon  the  facts,  to  waive  the  in- 
strument of  bottomry  and  insist  on  their  claim  for  necessaries, 
because  the  claim  for  necessaries  must  be  considered  to  be  merged 
ill  the  instrument  of  bottomry.^ 

As  the  master,  in  obtaining  extraordinary  supplies,  cr  in  per- 
forming such  an  act  as  executing  a  bottomry  bond  for  such  sup- 
plies, is  simply  an  agent  of  necessity;  where  the  owner  can  bo 
conuniinieated  with,  the  necessity  for  sucii  ag  icy,  and  tlierefore 
such  iigency  itself,  does  not  exist.  It  was,  accordiugly,  held  by 
the  Privy  Council,  sust.-ilning  the  judgment  of  ihe  Court  of  Ad- 
miralty, that,  before  resorting  to  bottomry  for  raising  necessary 
su|i|ilies,  it  Is  ab.soliitely  necessary,  where  practical,  that  notice 
shiiuiil  lie  given  by  the  master  to  the  owner  of  tlie  vessel ;  and  an 
alle^r;,tii,ii  that  sucli  owner  was  insolvent  is  no  excuse  for  not 
coinmunieatlng  with  him,  unless  he  has  been  judicially  declared 
insnlvfiit.  and  the  ownership  of  the  vess(d  has  vested  In  his  as- 
sit'iiees.  in  which  case  such  notice  should  then  be  given  to  them. 
And  under  such  circumstances,  notice  to  the  mortgagee  of  the 
vessel  would  not  suffice.^ 

The  existence  of  the  necessity  which  validates  the  hypothc 

'  All^n  1-.  Oiirlmtt,  fl  Q.  B.  D.  165. 
S.'o  Th,.  Dows.",  L.  R.  3  Ad.  &  Kc.  13.5  ; 
Kv,T:inl  V.  K.-n.lall,  I..  K.  5  C.  P.  428  ; 
Th.'  ¥\h  A.  Clark,  Br.  &h.  32. 

'^  Tlir  i;i].is,  h.  U.  4  A<].  k  Ko.  1.  See 
Tho  lii.loimtnhle,  Swab.  446;  liray  v. 
Bates,  9  Mi-t.  237. 


'  Rnrron  v.  Stownrt,  Tho  "  Piiiiiiiiiii," 
L.  R.  2  I'.  C.  11)9  ;  nllinMiiiKtlii'.iti'ljfiiicnt 
of  tho  Court  of  Atlinimlty,  L.  U.  2  Ad. 
k  Eo.  390.  Sen  Thu  Boimpnrtc,  8  Moo. 
P.  C.  459  ;  Tho  CnrKo  ex  Tlw  lluiuburg,  ii 
Moo.  P.  C.  N.  B.  289. 


it 


I 


N 


ii 


s 
!  U  4  '. 


286 


COMMENTARIES  ON   SALES. 


[book  II. 


; ;  !•■ 


n 


I  (. 


tion  of  cargo  by  bottomry  is  to  be  ascertained  by  evidence  in  the 
usual  manner ;  and  the  moaning  of  "  necessity,"  in  respect  of  liy. 
puthccation  by  the  master,  is  analogous  to  its  meaning  in  other 
parts  of  the  law.  It  has  been  described  as  a  liigh  degree  of  iucmI ; 
a  degree  which  arises  when  clioico  is  to  be  made  of  one  of  soveral 
alternatives  under  the  peril  of  severe  loss  if  a  wrong  choice  should 
be  made.  In  the  case  of  a  voyage,  it  is  probably  correct  to  say  that 
any  alternative  for  the  captain  is  better  than  total  loss  of  the  ship 
and  cargo,  and  that  he  is  under  a  necessity  of  choosing  another 
alternative,  if  any  should  be  possible;  and  in  res|)ect  of  bottomry, 
any  combination  of  events  which  would  prevent  the  completion  of 
the  voyage  with  profit,  unless  money  should  lie  obtained  l)y  l)ot- 
tomry,  would  raise  the  question  whether  there  was  need  for  bot- 
tomry in  such  high  degree  as  to  create  a  necessity.' 

In  this  case,  the  master  of  the  vessel,  chartered  from  Galveston, 
U.S., to  Liverpool, received  before  sailing  from  the  charterer  vari- 
ous sums  in  part  payment  of  the  freigiit,  and  after  taking  on  l)oanl 
a  cargo,  sailed  for  the  port  of  destination.  Tiie  vessel,  ImviiiLr  in 
the  prosecution  of  her  voyage  met  with  bad  weather  and  sullVrtd 
damage,  put  into  Hcrmuda,  where  the  master  incurred  heavy  ex- 
penses for  repairs  aud  supplies.  The  repairs  were  executed  and 
the  supplies  furnished,  witiiout  any  promise  of  a  bottomry  bond; 
but  the  law  of  IJormuda  giving  a  right  of  arrest  of  the  ship  to  the 
creditors  for  the  repairs  and  supplies,  the  master,  to  complete  the 
voyage,  having  written  to  the  agent  of  the  owners  of  the  ship  and 
of  the  cargo,  and  not  receiving  any  answer  within  the  time  an 
answer  might  have  been  returned,  raised  the  funds  necessary  for 
the  payment  of  such  supplies,  on  bottomry  of  the  ship,  cnrj^o,  and 
freight.  On  a  suit  brought  by  the  assignees  of  the  bond,  tlie  own- 
ers of  the  ship  not  opposing,  the  Court  of  Admiralty  ^  pronounceil 
for  the  validity  of  the  bond,  so  far  as  it  regarded  the  ship,  carjro, 
and  freight,  aud  the  ship  was  thereupon  sold,  but  })ro(luce(l  a  sinn 
far  less  than  sullicicnt  to  cover  the  sum  due  on  tlie  bond.  The 
consignees  of  the  cargo,  who  were  also  entitled  to  the  fiiiirht, 
claimed  to  retain  in  their  hands  the  amount  of  freight,  witli  inter- 
est and  insurance  advanced  by  them  in  part-payment  before  the 
commencement  of  the  voyage,  and  j)aid  the  freight,  short  <•!  tliat 
auiount,  into  court.  The  court  below  disallowed  this  abatcnunt. 
and  ordered  the  whole  freight  to  be  paid  into  court.  On  appeal, 
the  judicial  committee  of  the  Privy  Council  held  that,  under  the 
circumstances,  the  master  was  warranted  in  resorting  to  a  l»i>t- 
tomry  bond,  and  that  the  necessity  of  the  case  warranted  the  liy- 

"  Kainak,"  «  The  Karnuk,  L.  R.  2  Ad.  &  Ko.  2S9, 


*  Droogp   r.   Snnrt,    Tlie 
L.  li.  2  V.  C.  505. 


J13. 


PART  IV.]  SUIPMASTEllS  AS  AGENTS  OP  NECESSITY. 


287 


pothccation  of  the  cargo  as  well  as  the  ship  and  freight ;  but,  as 
the  latter  was,  by  the  agreement  between  the  charterer  and  the 
iuastor,  in  part  paid  in  advance,  the  retention  of  the  amount  of 
such  prepayment  by  the  consignees  of  the  cargo  was  upheld,  as 
the  master,  by  hypothccatiug  the  chartered  freight,  could  give  no 
riglit  to  more  freight  than  the  owner  had  a  right  to  demand  from 
the  charterer.' 

A  maritime  lien  does  not  arise  in  a  contract  to  build  a  ship,  or 
in  a  contract  to  furnish  materials  for  that  purpose.  In  respect  to 
8ucl»  contracts,  it  is  competent  for  the  States  in  this  country  to 
cicuto  such  liens  as  their  legislatures  may  deem  just  and  oxpe- 
diont,  not  amounting  to  a  regulation  of  commerce,  and  to  enact 
rea.sonaljle  rules  and  regulations  prescribing  the  mode  of  their 
eniorconicut,  if  not  inconsistent  with  the  exclusive  jurisdiction  of 
the  Admiralty  courts.^ 

In  lliugstou  V.  Wcudt,^  whoro  expenditures  were  mi^de  for  the 
purpose  of  saving  the  cargo  of  a  stranded  ship,  under  circum- 
stances wliich  would  have  justified  the  master  to  make  them  as  an 
a},'((nt  of  necessity ;  the  master  put  tiie  plaintiff,  a  ship-agent,  in 
po.ssession  of  the  ship  and  cargo,  with  authority  from  the  master 
to  do,  as  his  agent,  what  was  for  the  benefit  of  all  concerned.  The 
plaintilT  did  work  and  expended  money  in  discharging  the  cargo, 
and  brought  it  to  a  place  of  safety,  whore  he  retained  |)osses8ion 
of  it.  The  expenditure  by  the  plaintiff  was  not  for  the  purpo.sc 
of  enabling  tiie  shipowner  to  perform  his  contract  and  to  earn 
frci<rht,  but  wrs  an  extraordinary  expenditure  for  the  purpose  of 
savin;:  the  property  at  risk,  namely,  the  cargo.  It  was  held  that 
tiic  pluintilT  had  a  lieu  on  the  cargo  for  his  charges  as  against  the 
owner,  though  such  charges  were  incurred  without  authority  from 
the  owner,  the  defendant ;  he,  however,  only  becoming  the  owner 


'  Si'o.  -ilsn,  .Stpphens  v,  Broonificld  ; 
Thc'Mliviu  iVirui,"  L.  H.  2  A.i.  k  Kc. 
•ii\  ;  iiTiil,  .111  ii].|iL'iil,  I.,  n.  2  P.  C.  51«, 
as  til  ("iistnii'tivit  total  loss  after  a  slii[i 
ha».  Im'ch  liypfitlu'cated  to  riiiso  money  tor 
iieccssiii'v  iTpairs. 

■^  TIm-  IVllast,  7  Wall.  64.');  Slioppard 
I'.  Stccli',  4:i  N.  Y.  55 ;  Fernui  v.  Iloslor.l, 
64  liaili.  liiiS.  A  jMii'ty  wishing  toeiiloi'co 
siiili  a  liiii  may  proceed  in  rem  in  the 
Aiiiiiiialty,  or  Ik^  may  brinfj  a  suit  i;i  per- 
simjiiii  in  till-  same  jui'isdietion,  or  he  may 
I'.ict  Hut  to  HO  into  Admiralty  at  all,  and 
may  rcsiirt  to  his  common-law  remedy  in 
tlk'  .Stale  courts,  or  in  the  Circuit  Court  of 
tilt'  liiiiiecl  States,  if  he  can  make  proper 
paitlrs  to  f^'ive  the  latter  court  juris(lii;tion 
"f  the  case.  Kdwanls  v.  Klliott,  21  Wall. 
.W2,  ii/J.  IJiit  .State  lejfislatures  have 
■lu  uiitluirity  to  create  a  maritime  lien, 


nor  can  they  confer  any  jurisdiction  upon 
a  State  court  to  enforce  micIi  a  lien  Ity  a 
suit  or  proceeding  in  rctn,  ns  practised  in 
the  Admiralty  courts.  Tlic  Hellast,  7 
Wall.  044  ;  The  Moses  Taylor,  4  Wall. 
411;  Ilino  v.  Trevor.  Ibiil.  ri."»5.  Common- 
law  remi'(lics  are  not  applicable  to  enforco 
a  maritime  lien  by  a  proceeding  in  rem, 
and,  consiMjuently,  the  original  ,jurisdic> 
tion  to  enfur);c  sucli  a  lien  by  that  mode 
of  proceeiling  is  exclusive  in  the  District 
courts.  Edwards  v.  Klliott,  21  Wall.  632; 
557  ;  Brookman  v.  Jiamill,  43  N.  Y.  554  ; 
The  Josephine,  39  N.  Y.  lU.  See,  also. 
The  Lottawanna,  21  Wall.  558  ;  where 
the  whole  (piestion  of  the  Jurisdiction  of 
the  Admiralty  courts  is  most  claliorately 
examined  in  the  opiidon  of  tin-  court,  and 
in  the  dissenting  judgment  of  Clitford,  J. 
»  1  Q.  B.  I).  307. 


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288 


COMMENTARIES  ON  SALES. 


[book  II. 


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by  an  assignment  of  the  bill  of  lading,  after  the  expense  had  been 
incurred.  Although  the  judgment  is  given  with  sunie  hcsitution, 
there  seems  to  be  no  reason  to  doubt  its  soundness.' 

The  master  may  become,  as  he  did  in  Attwood  v.  Sollar,^  ex 
necessitate  the  agent  of  the  shipper  to  transship  the  cargo,  while 
he  is,  at  the  same  time,  the  agent  of  the  shipowner,  la  such 
a  case,  as  representing  antagonistic  interests,  questions  of  ilitli- 
culty  may  arise  as  they  did  in  Attwood  v.  Sellur,  in  whicli  case  it 
may  bo  a  matter,  as  between  the  conflicting  interests  represented 
by  the  master  us  agent  of  necessity  of  the  shipper  and  slupowucr, 
of  great  micertainty  as  to  the  course  the  master  should  pursuo  in 
such  an  anomalous  position.^ 

W.  was  the  registered  owner  of  certain  shares  in  a  sliip,  and 
had  been  entered  on  the  register  as  managing  owner.  The  de- 
fendant subsequently  became  the  registered  owner  of  other  sliuies 
in  the  ship.  The  defendant  was  not  aware  in  fact  that  W.  was  so 
registered  as  managing  owner.  W.  sent  the  ship  on  a  voyage 
without  the  defendant's  knowledge,  and  contrary  to  the  terms  of 
an  agreement  made  between  them.  The  defendant  did  not  i)ar- 
ticipate  in  the  adventure,  and  had  previously  informed  W.  that 
he  did  not  intend  to  navigate  the  ship  or  take  any  part  in  her 
management.  The  plaintiffs  supplied  necessaries  for  the  ship 
previous  to  such  voyage,  upon  the  order  of  W.,  without  tlie  knowl- 
edge or  consent  of  the  defendant.  The  plaintiffs,  before  supply- 
ing the  goods,  consulted  the  register,  and  found  the  defentlaut's 
name  entered  therein  as  part-owner  of  the  ship.  It  was  liold,  by 
Bowen,  J.,  that  the  fact  that  the  defendant  had  allowed  tlio  entry 
on  the  register  describing  VV.  as  managing  owner  to  remain  un- 
altered, did  not,  per  se,  amount  to  a  holding  out  of  W.  as  his 
agent,  so  as  to  render  the  defendant  liable  for  the  nccessuriis  sup- 
plied by  the  plaintiff,  and  that,  inasmuch  as  W.  had  not,  in  fact, 
authority  to  bind  the  defendant,  the  plaintiffs  could  not  recover 
against  the  defendant  for  such  necessaries.* 

The  plaintiffs,  in  an  action  of  necessaries  against  a  foreign 
ship,  having,  at  the  request  of  the  master,  advanced  money  to  pay 
wages  to  the  crew,  pilotage,  towage,  light  and  dock  dues ;  for  re- 
porting the  vessel,  and  for  telegrams  and  postage,  claimed  to  bo 
paid  these  charges  in  priority  to  the  claim  of  a  bottomry  bond- 
holder who  had  advanced  money  on  bottomry  at  the  port  of  loading. 


>  See  Moran  v.  Jones,  7  E.  &  B.  523  ; 
Notnin  V.  Henderson,  L.  K.  6  Q.  B.  34G  ; 
7  Q.  B.  225.  See,  where  the  parties  acted 
witliout  authority,  Nicliolson  p.  Chapman, 
2  H.  BI.  254 :  Castcllain  v.  Thompson,  12 
C.  B.  N.  8.  105. 


«  4  Q.  B.  Div.  342,  347. 

«  See  Maude  k  P.  on  Ship.,  p.  433; 
Shiplon  V.  Thornton,  9  A.  &  K.  314. 

♦  Frazer  v.  Cuthbertson,  6  Q.  B.  Div. 
93. 


I'AHT  IV.]  SHIPMASTERS    AS   AGENTS  OP  NECESSITY. 


289 


It  was  conceded  tliat  all  these  claims  except  for  the  dock  dues ; 
for  reporting  the  vessel,  and  for  telegrams,  should  have  the  prior- 
ity clainu'd.  The  court  held  that  dock  dues  come  within  the  rule 
as  to  priority,  but  that  the  advances  for  reporting  the  vessel,  for 
tc'li'irruuis,  and  for  postages,  did  not.' 

The  statement  of  ehiim  in  an  action  of  necessaries  In  rem 
iilK'g<tl  tliat  in  November,  1874,  the  jdaintill'  had  supplied  to  the 
owners  of  liie  vessel  proceeded  against  certain  stores  necessary 
for  luT  oiiuipment ;  that  in  Septemlx'r,  IHTO,  whilst  the  amount 
due  in  respect  of  the  said  stores  was  still  impaid,  forty-three 
sixty-fourth  shares  in  the  vessel  had  been  transferred  to  the  de- 
feiiiliint  in  the  action  with  knowledge  and  notice  of  the  plaintiff's 
claim  ;  that  the  defendant  became  owner  of  the  shares  subject  t5 
siicli  claim;  that  the  value  of  the  shares  was  increased  l)y  rea- 
son of  the  said  e(|uipment,  and  that  the  owners  of  the  vessel  had 
derived  benefit  therefrom.  It  was  held  in  the  Admiralty  I>ivisiou 
ou  (lenuu'rer,  that  the  statement  of  claim  showed  no  right  of 
action  in  respect  of  the  vessel  as  against  the  defendant.''^ 

The  master  of  a  foreign  vessel  lying  in  the  port  of  Quebec, 
lieinir  without  funds  and  credit,  by  means  of  a  bill  of  exchange 
drawn  upon  a  firm  of  shij)-brokers  in  Lt)ndon  proi'ured  the  ad- 
vance of  a  sum  of  money  for  necessaries  for  the  ship.  The  bill 
of  exohauge  was  accepted  and  paid,  but  the  acceptors,  not  having 
received  the  amount  of  the  bill  from  the  shipowners,  instituted 
an  action  against  the  ship  for  the  amomit  of  the  bill.  It  was  held 
l)v  Sir  Robert  Phillimore  in  the  Admiralty  Division,  and  atlirmed 
by  the  Court  of  Appeal,'^  following  the  cases  of  The  Omri,'*  ami  The 
Wataga,''  tiiat  the  Court  of  Admiralty  had  jurisdiction  to  e:<ter- 
tain  an  action  in  all  cases  of  necessaries  supplied  to  any  foreign 
ship  or  seagoing  vessel,  and  to  enforce  payment  thereof;  and 
that  it  makes  no  distinction  whether  the  necessaries  were  fur- 
iiishod  on  |)ersonal  credit  or  not." 

Wlien  a  master  makes  sale  of  a  foreign  vessel  which  is  justifi- 
able by  the  circumstances  of  the  ease,  a  l)ill  of  sale  is  not  nijces- 
sary  to  transfer  the  title  to  the  vessel.  When  the  v(!ssel  is  sold 
and  (l('livere(l,  the  property  changes,  und  no  written  instrument 
is  neeijiMJ  to  give  efl'ect  to  the  title.  The  rule  of  the  common 
law  on  this  subject  has  not  been  altered  by  statute.  The  law  of 
the  United  States  *vhich  requires  the  register  to  be  inserted  in 


'  Till'  St.  I.twroncc,  T..  IJ.  5  Vr.  Div. 
•2.1".  S,r  Til..  Williiiiii  K.  Siiironl  I.n.sh.  69. 

■^  '\%'  AiiiToid,  L.  It.  2  Fr.'Div.  18!t. 
riio  Two  Kli,.„.s,  L.  U.  4  1'.  V.  1«I,  mid 
The  Picv,'  Supcriore,  L.  ]{.  5  P.  C.  482, 
are  in  ncrcinl. 

'  Till'  Autm,  L.  R.  1  Pr.  Div.  253. 
VOL    I.  19 


*  Lu.sli.  A.lni.  U,\. 

*  Swul).  Adin.  lrt.5. 

6  Sep  also  Tin-  (l.-cnn.  2  W.  Itoli.  268  ; 
Til!!  Iii.lia,  32  L.  .T.  I'.  M.  &  A.  18.1  ;  Tlie 
KUa  A.  Clatk,  Rr.  &  I.u.sli.  32  ;  Tim  Two 
Ellens,  L.  U.  4  P.  C.  161. 


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COMMENTARIES  ON   SALES. 


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the  bill  of  sale,  applies  only  to  the  character  and  privileges  of 
the  vessel  as  an  American  ship.  It  has  no  application  to  a  for- 
eign vessel  sold  by  the  master  by  necessity.^ 

In  The  Cobequid  Marine  Insurance  Co.  v.  Barteaux,^  the  Priw 
Council  held,  reversing  the  judgment  of  the  Supreme  Court  of 
Nova  Scotia,  that,  although  a  master  may  under  circumstances 
of  stringent  necessity  effect  the  sale  of  the  vessel  so  as  thereby 
to  affect  the  insurers  ;  yet  such  power  is  jealously  watched  hy  the 
courts,  and  is  rigorously  confined  to  cases  of  extreme  necessity, 
such  as  where  the  circumstances,  after  sufficient  examination  of 
the  vessel's  condition,  after  every  exertion  in  the  master's  power, 
within  the  means  at  his  disposal,  to  extricate  her  from  peril,  or 
to  raise  funds  for  her  repair,  leave  him  no  alternative  but  to  sell 
her  as  she  is.^ 

Where  drafts  are  fraudulently  drawn  on  the  owner  of  a  vessel  for 
pretended  repairs,  supplies,  insurance,  and  commissions,  althou[.'h 
expressing  on  their  face  that  they  are  "  recoverable  against  the 
vessel,  freight,  and  cargo,"  as  they  bind  neither  the  owners  nor 
the  vessel,  and  the  drawer  of  the  drafts  has  no  lien  on  the  vessel 
which  he  or  any  one  else  can  enforce  in  admiralty,  bond  fide  hold- 
ers of  the  drafts  for  value,  while  they  are  not  affected,  so  far  as 
their  remedies  against  the  parties  to  the  drafts  are  concerned,  by 
the  fraudulent  character  of  the  transaction,  have  no  more  claim 
against  the  vessel,  not\>  ithstanding  what  is  expressed  on  the  face 
of  the  drafts,  than  their  fraudulent  assignors  had.* 

The  master  has  a  maritime  lien  on  the  ship  for  his  expenditure 
for  necessaries,  even  against  a  botid  fide  purchaser  of  the  sbip.^ 


»  The  Amelie,  6  Wall.  18  ;  Wendover 
V.  Hogehoom,  7  Johns.  308  ;  Sharp  v. 
United  States  Ins.  Co.,  14  Johns.  201  ; 
Weston  V.  Penniman,  1  Mason,  306. 

a  L.  R.  6  P.  C.  319. 

8  See  Keniier  v.  Kingrove,  6  Ex.  263  ; 
Navone  v.  HaiUIon,  9  C.  H.  30. 

♦  The  Woodland,  104  U.  S.  180. 

6  Tlic  Uingdove,  11  Pr.  Div.  120;  The 
Feronia,  2  A.  &  E.  65  ;  The  Jenny  Lind, 
3  A.  &  E.  529  ;  The  Alary  Anne,  1  A.  & 
E.  8;  The  Fair|.ort,  10  Pr.  Div.  13;  In  re 
Rio  Grande  Do  Sul  Co.,  5  Ch.  Div.  282. 

The  master  of  a  vessel  when  abroad  is 
the  agent  of  tlie  owners,  and  has  power  to 
make  contracts  iu  relation  to  freight  which 
are  binding  upon  the  owners.  But  when 
an  owner  is  on  hand,  and  is  exclusively 
attending  to  the  shipment  of  the  cargo, 
he  is  not  bound  by  the  master's  contract ; 
but  to  relieve  himself  from  liability  he 
must  show  the  fact  that  he  was  exclusively 
attending  to  the  shiriment  of  the  cargo. 
Iu  Ward  v.  Green,  6  Cow.  173,  it  was  held 


that  it  is  not  enough  that  one  of  the  own- 
ers is  on  board  tis  supercargo  ;  aiul  wliere 
this  was  the  case,  and  the  master  of  a  gen- 
eral ship  gave  a  receipt  for  a  quantity  of 
Spanish  dollars  for  transportation  without 
the  knowledge  of  the  owners,  ami  which 
was  not  put  in  the  freight  list,  tin-  niomy 
being  stolen  on  the  voyago,  it  was  iitlil 
that  the  owners  were  lial>l(\  See  Boucher 
V.  Lawson,  Oas.  Temp.  Hardw.  83,  IS3; 
King  V.  Lenox,  19  Johns.  236  ;  Walter  i'. 
Brewer,  11  Mass.  99.  For  a  case  of  en 
larged  agency  to  a  master  to  sell  aini  l>i  v 
cargoes,  see  Bicknell  v.  Smith,  31  X.  V 
259.  And  for  a  case  where  tiic  facts  coii' 
stituted  the  master  agent  both  of  the 
shipper  to  deliver  the  cargo  ami  of  the 
purchaser  to  receive  it,  see  Smith  v.  Dav- 
enport, 34  Me.  520. 

In  Eads  i;.  The  Steamboat  II.  D.  Bacon. 
1  Newb.  Ad.  274,  it  was  held  that  the 
master  when  upon  a  voyage  is  tlu'  ircneral 
agent  of  the  owners,  and  as  they  aic  hoiinl 
by  his  acts  whilst  acting  as  such  agent 


PART  IV.]  SHIPMASTERS  AS  AGENTS  OP  NECESSITY. 


291 


within  the  scope  of  his  authority,  he  haa 
power  as  tlte  af,'ent  of  his  owners  to  use 
and  emjiloy  at  their  expense  every  neces- 
saiv  TiR'aiis  to  save  his  sunken  vessel. 
The  owners  of  a  lishing-vessel  may  hire 
iiii'ii  to  navigate  the  vessel,  and  to  fish,  for 
aiooiiiit  of  the  owners,  on  wages  instead  of 
sliari's;  and  if  one  of  the  owners  act  as 
iiiiistcr,  and  the  others  do  not  interfere  in 
the  iiiaiiafjement  of  the  vessel,  he  will  be 
(ii'L-mi'd  tiieir  agent,  and  such  a  contract 
mailt:  by  him  in  his  own  name  will  inure 
to  thiir  use,  and  he  binding  on  them. 
Baker  i".  Corey,  36  Mass.  496.  The  mas- 
ter is  the  owners'  agent  for  all  pui'poses 
cominj;  within  the  scope  of  his  authority 
lidriiifj  the  voyage ;  but  he  does  not 
tliereljy  become  authorized  to  pay  claims 
against  his  owners  which  do  not  accrue 
ihuiiig  the  time  while  he  has  charge  of 
the  vessel.  His  agency  is  but  for  a  lim- 
ited time,  and  he  caimot  extend  it  beyond 
the  time  ])rescribed  by  his  principal.  Kel- 
ley  I'.  Merrill,  14  Me.  228. 

If  the  owner  charters  his  vessel  to  the 
master  lor  a  certain  period,  the  master 
covenanting  to  victual  and  man  her  at  his 
own  cost,  lie  is  to  be  deemed  the  owner 
pro  hac  rice,  and  he,  like  any  other  char- 
terer under  similar  circumstances,  is  alone 
resiioiisible  for  supplies  for  the  intended 
voyage.  Hallett  v.  Col.  Ins.  Co.,  8  Johns. 
27-2. 

But  where  the  transaction  is  not  a  posi- 
tive chartering,  but  a  letting  of  the  vessel 
on  shares,  although  the  master  engaged 
with  the  owners  to  provide  the  supplies 
at  his  own  cost,  the  owners  are  still  liable, 
unless  tlie  pi^rson  from  whom  the  supplies 
are  purchased  is  aware  of  the  arrangement. 
In  the  absence  of  any  notice  to  the  seller 
that  the  vessel  was  let  on  shares,  or  of  an 
ep]iortnnity  by  reasonable  care  and  cau- 
tion to  ascertain  the  fact,  the  case  is  the 
ordinary  one  of  the  master  of  a  vessel  buy- 
,'  ne<essiiry  supplies  for  the  voyage. 
Kenzel  i;.  Kirk,  37  Barb.  113.  And  see 
Ship  Fortitude,  3  Sumn.  228  ;  Patterson 
I'.  Chahners,  7  H.  Mon.  595  ;  Pendleton  v. 
Franklin,  3  Sehl.  508  ;  The  Paragon,  1 
Ware,  3i!2  ;  Hardy  v.  Sproul,  29  Me.  258  ; 
Provost  V.  Patehin,  5  Seld.  235  ;  Saxton 
V.  llead,  Lalor's  Sup.  to  Hill  &  Den. 
32S  I  Rich  V.  Coe,  Oowp.  636  ;  Webster  v. 
Leeha'np,  4  M.  &  Aid.  2o2  ;  Arthur  v. 
Sehr.  Casino,  2  ^lury,  94. 

Tlip  general  principle  is  that  when,  by 
a  contract  of  charter-party,  the  charterer 
takes  7K)sscssion  and  control  of  the  vessel, 
iind  navigates  her  by  his  own  master  anil 
crew,  he  alone  is  responsible  for  the  acts 
of  the  master.  Reynolds  v.  Tappan,  15 
Mass.  370  •  Taggard  i-.  Loring,  16  Mass. 
336 ;  Thompson  v.  Snow,  4  Greenl.  268  ; 
Emery  v.  Hersey,  4  Greenl.  407. 
When  the  vessel  is  let  by  charter-party, 


and  the  charterer  vintuals  and  mans, 
and  has  the  entire  control  of  the  vessel, 
the  charterer  is  substituted  in  the  owner's 
place,  and  b°coines  owner  pro  hac  vice.  In 
such  a  case  the  shijjper  has  a  lien  on  the 
vessel  for  the  execution  of  a  contract  by 
a  bill  of  lading,  entered  into  by  the  mas- 
ter, which  may  be  enforced  by  process  m 
7-cm  in  the  Court  of  Adrniralt}-,  as  well 
when  the  vessel  is  employed  under  a  char- 
ter-party as  when  it  is  in  the  employment  • 
of  the  owner.  The  owner  has  bis  remedy 
against  the  charterer.  The  Phebe,  1  Ware, 
263.  And  where  the  master  is  the  char- 
terer he  is  not  the  master  of  the  owner  at 
the  time,  but  the  master  of  the  ves.sel, 
representing  his  own  interest  as  charterer, 
and,  being  owner  of  the  vessel  pi'o  hac  vice 
by  virtue  of  the  charter-pivrty,  he  is  exclu- 
sively responsible  for  the  supplies  bought 
by  him  for  the  vessel.  Mott  v.  Ruckman, 
3  Blatchf.  71;  Fraser  v.  Mar.sh,  13  East, 
238  ;  Mclver  v.  Humble,  16  East,  169  ; 
Reeve  v.  Davis,  1  A.  &  E.  312 ;  Webb  v. 
Pierce,  1  Curt.  C.  C.  104. 

In  The  City  of  New  York,  3  Blatchf. 
187,  it  was  held  that  though  the  charterers 
of  the  vessel  were  to  be  deemed  owners  of 
her  for  the  voyage,  that  the  purser  of  the 
vessel,  who  was  their  agent,  was  compe- 
tent to  bind  her  for  the  necessary  supply 
of  coal  bought  for  her  at  a  foreign  port, 
even  though  the  person  furnishing  it  knew 
of  the  charter,  and  knew  that,  according 
to  its  terms,  the  charterers  were  bound  to 
furnish  coal  for  the  voj-age.  Upon  any 
other  rule  the  ma.ster  or  agent  of  a  vessel 
in  distress  in  a  foreign  port  would  often- 
times find  himself  unable  to  procure  the 
necessaries  essential  for  his  relief.  The 
voyage  might  be  broken  up  for  want  of 
supplies,  or  the  vessel  might  go  to  decay 
in  port  for  want  of  repairs.  And  where 
the  charterers  were  not  owners  for  the 
voyage,  but  hirers  of  the  vessel  to  carry 
passengers  and  freight,  and  the  general 
owners  have  the  jiossession  and  naviga- 
tion of  her,  the  cliarter-piirty  resting  in 
covenant,  and  not  in  a  letting  of  the  ves- 
sel ;  and  a  steamer  out  of  coal  goes  into  a 
foreign  port  in  distress  for  sujiplies,  with- 
out which  slit  could  not  pnrlonii  her  voy- 
age, the  coal,  if  proeureil  by  the  ma.ster 
under  such  cirouinstanees,  is  a  charge  upon 
tlie  vessel,  aecording  to  the  settled  mari- 
time law.     Iliid. 

The  original  owners  of  a  vessel  are  not 
liable  to  pay  for  any  supjilies  furnished  for 
the  vessel  after  they  have  sold  all  their 
interest  in  the  vessel,  although  neither 
the  master  nor  the  merchant  furnishing 
the  supplies  has  any  knowledge  of  the 
sale.  Tiie  obligation  imposed  on  owners 
of  vessels  abroad  to  pay  for  the  necessary 
supplies  furnished  to  the  master  is  founded 
on  the  principle  that  the  master  is  for  this 


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"1  M 


292 


COMMENTARIES  ON  SALES. 


[cook  II. 


purpose  their  ngent,  and  is  authorized  to 
biuii  them  in  this  case,  because  the  sup- 
plies t"e  for  their  use  and  bunetit,  and 
without  such  supplies  their  vessel  cannot 
jiroceed  on  her  destined  voyage.  IJiit  when 
tiie  owners  have  alienated  all  their  interest 
in  the  vessel  the  master  ceases  to  be  their 
agent,  and  the  su|)plies  are  not  furnished 
for  their  use.  When,  therefore,  necessary 
80 implies  are  to  be  furnished  for  a  vessel  on 
hef  voyage,  and  from  home,  the  merchant 
may  furnish  them  on  the  credit  of  the  ves- 
sel by  taking  a  hypothecation,  or  on  the 
credit  of  the  master  by  his  consent,  or  on 
the  credit  of  all  who  are  owners  at  the 
time  the  supplies  are  furnished,  because 
they  have  the  use  and  benefit  of  them. 
But  the  original  owners  are  exempted  from 
all  obligations  to  pay  for  such  supplies 
furnished  after  the  sale,  because  they  are 
no  longer  owners,  nor  interested  in  the 
vessel  or  voyage.  Hussoy  v.  Allen,  C 
Mass.  163  ;  WesterdeU  v.  Dale,  7  T.  R. 
312. 

In  Church  i>.  The  Marine  Ins.  Co.,  1 
Mason,  344,  Story,  J.,  expresses  a  strong 
doubt  whether  the  master,  even  at  a  ju<li- 
cial  sale,  can  purcliase  on  his  own  account ; 
but  he  is  very  clear  that  he  cannot  pur- 
chase for  his  own  benetit  at  a  sale  wliich 
he  has  had  any  agency  in  ilirecting.  This 
doctrine  was  sustained  in  Chamberlain  v. 
Harrod,  5  Greenl.  420,  where  it  was  held 
that  the  purchase  of  a  ship  in  a  foreign 
port  by  the  master  is  generally  to  be  con- 
sidered as  made  for  the  benelit  of  the  own- 
ers, if  they  elect  so  to  regard  it. 

In  Brightman  v.  Kddy,  97  Mass.  478, 
where  a  vessel  was  transferred  by  the 
master  from  American  to  British  owner- 
ship, in  anticipation  of  a  plot  for  her  cap- 
ture ;  in  an  action  by  one  of  the  owners 
against  the  master  for  conversion,  the 
judge,  on  the  trial,  instructed  the  jury 
that  if  the  master  made  the  transfer 
under  a  controlling  and  extreme  neces- 
sity, for  the  purpose  of  preserving  the 
vessel  for  the  interest  of  all  concerned, 
he  had  authority  to  make  it,  and  the  ac- 
tion could  not  be  maintained  ;  but  tiie 
Supreme  Court  of  Massachusetts  held  that 
while  the  instruction,  as  a  proposition  of 
law,  was  correct,  as  the  evidence  went  to 
show  that  there  was  no  actual  danger  of 
capture  or  seizure,  there  was,  therefore,  no 
necessity  to  justify  the  transfer ;  and  a 
new  trial  was  granted. 

In  Habcock  v.  Terry,  97  Mass.  482,  it 
was  held  that  the  master  of  a  whaling  ship 
has  no  right  to  sell  the  oil,  nor  to  ship  it 
to  another  market,  in  the  absence  of  in- 
structions from  the  owners,  express  or 
implied,  unless  under  a  power  derived 
from  a  controlling  necessity.  The  master 
of  a  ship  has  no  such  general  authority  by 
virtue  of  his  employment ;  nor  has  a  part- 


owner,  where  he  is  not  intrusted  with  the 
direction  of  the  voyage.  Underwuod  i', 
Kobertson,  4  Camp.  138 ;  The  rackit,  3 
Mason,  255  ;  Peters  v.  Ballistier,  3  Pick. 
4!>5.  The  steward  of  a  steamer  was  in  tlic 
habit  of  purchasing  daily  sui)plies  for  litr 
use.  During  the  continuance  of  his  cm- 
ploynie-  t  he  made  a  contract  with  the 
owners  by  which  he  bound  himself  to 
keep,  for  his  own  account,  on  bduid  of 
the  boat,  a  restaurant  for  the  convenience 
of  passengers,  and  at  the  same  time  to  feed 
the  ollicers  and  crew,  about  twenty  in 
number  ;  to  provide  servants  for  tlie  lioat, 
and  to  have  all  the  washing  of  tlic  limi] 
of  the  boat  propcsrly  done,  'i'lii.s  coiitrart 
was  never  made  jiublic  ;  and  the  iilaintilF, 
who  had  been  furnishing  meat  to  the 
steamer,  continued  to  do  so  without  being 
aware  of  its  existence.  The  court  hM, 
that  as  he  had  not  given  credit  to  tliu 
steward,  and  as  he  was  justilicd,  by  tiie 
course  of  conduct  of  the  owners,  in  be- 
lieving that  he  w..s  dealing  with  tiie  iioiit, 
the  owners  and  steamer^ were  liiiblc.  GrisL'l 
V.  Steamer  Olivia,  6  La.  Atin.  4fil. 

Th(!  master  of  a  ship  has  by  law  no 
authority  to  sell  the  cargo,  unless  in  c;ism 
of  absolute  necessity.  In  case  of  ship 
wreck,  without  the  power  of  transsliip- 
ment ;  of  capture,  or  other  casualty  inter- 
rupting the  voyage  ;  or  where  it  becomes 
necessary  to  sell  part  of  the  cargo  to  en- 
able the  vessel  to  prosecute  the  voyap', 
and  in  like  eases,  the  master  beconics,  of 
necessity,  the  authorized  agent  of  the 
owners,  freighters,  and  all  coiioiTiieii. 
And  he  has  power  to  sell  the  f,'""'!' 
which  are  damaged,  or  of  a  perislmble  na- 
ture ;  or  if  any  other  necessity  exist  for 
the  sale ;  but  not  othi^rwise.  J5iit  the 
mere  possession  of  the  goods,  without  any 
such  authority,  express  or  iinplici!,  pves 
the  master  no  power,  and  his  sulc  [msse^ 
no  title.  Stillman  v.  llurd,  10  Tix.  lOS"; 
Freeman  v.  The  Kast  India  Co.,  :>  B.  & 
Aid.  617.  It  is  an  estahlisheil  principle 
at  common  law  that  a  possessor  of  pi'r- 
S(mal  chattels  cannot  transfer  to  fuiotlnr 
a  greater  right  than  he  has  himself.  If 
he  have  neither  projjcrty  nor  aiitiiority, 
his  sale  will  be  invaliil.  Lickbanwv  i: 
Mason,  1  H.  Blk.  360  ;  B;utop  i\  Iloare, 
1  Wils.  8;  Wilkinson  v.  King,  2  Camp. 
335. 

It  is  the  duty  of  the  master,  when  his 
vessel  is  disabled  in  the  course  of  tlie  vny- 
age,  to  procure  another  if  he  can,  and  tike 
on  the  cargo.  Em?rig.,  tom.  1,  4'27;  ^\il- 
son  V.  The  Royal  Kx.  Ins.  Co.,  li  Camp. 
623;  SchefTelin  v.  The  New  York  his.  Co., 
9  Johns.  21.  This  duty  arises  from  the 
character  of  agent  for  the  owner  of  the 
cargo,  which  is  cast  upon  him  Iroin  tlie  ne- 
cessity of  the  case,  and  in  that  cbarncter 
he  is  bound  to  act  for  the  best  interest  of 


PART  IV.]  SHIPMASTERS  AS   AGENTS  OP  NECESSITY. 


293 


!'   kU 


all  coiici'rned.  His  acts,  in  the  execution 
of  such  a  trust,  and  in  relation  to  the  prop- 
irtv  iiiiiler  his  care,  are  valid  and  binding 
Hjioii  the  property,  except  in  cases  where 
his  power  is  limited  by  positive  rules. 
Kmcrigoii  lays  down  this  doctrine,  and 
Jecliuv.s  th:it  if  the  shii)  bo  forced  by  ne- 
cessity into  a  foreign  port,  tlie  master  be- 
loiiu's  tlio  agent  of  the  owners  of  the  cargo 
as  well  as  of  the  sliip,  and  he  is  bound  to 
sue  to  the  jireservation  of  the  cargo,  and 
lo  ilu  whatever  the  circumstances  of  the 
case  shall  dictate  to  be  for  the  best,  and 
wliat  it  is  to  he  presumed  the  owners 
woiilil  do  if  they  were  present.  His  char- 
acter of  master  invests  him  with  the  care 
and  responsibility  of  a  general  agent  of 
the  ship  and  cargo ;  and  he  would  be 
very  blaniable  if  lie  left  the  cargo  at  a 
foreign  port  while  he  liad  it  in  his  power 
to  carry  it  by  another  vessel  to  the  port  of 
destination.  Knierig.,  tom.  1,  429,  433. 
And  the  master  lias  no  right  to  sell  the 
cargo  at  the  i)ort  of  necessity,  and  then 
put  an  end  to  the  adventure,  if  he  can 
hire  another  vessel  to  carry  the  cargo  to 
its  destined  port.  See  Miller  v.  Fletcher, 
Doug.  231 ;  IMantamour  v.  Staples,  1  T.  R. 
511,  n. ;  Tlie  Gratitudine,  3  C.  Rob.  240  ; 
Van  Orncron  v.  Derrick,  2  Camp.  42 ;  Wil- 
son V.  Millar,  2  Stark.  1. 

And  whore  a  ship  puts  into  an  inter- 
mediati'  port  in  distress,  and  is  condemned 
as  unseaworthy,  and  it  becomes  necessary, 
for  the  transportation  of  the  cargo  saved 
to  its  destined  j)ort,  to  hire  another  ship  ; 
tlie  caigo,  on  its  arrival  at  the  port  of 
destination,  is  chargeable  with  the  in- 
crease of  freight,  if  any,  arising  from  the 
clwrti-r  of  the  new  ship;  that  is,  the  extra 
freight  beyond  what  the  freight  would 
have  been  under  the  original  charter- 
paity  if  the  necessity  of  hiring  another 
ship  had  not  intervened.  SearTe  v.  Seo- 
vcU,  4  Johns,  Ch.  218  ;  Mumford  v.  The 


Commercial  Ins.  Co.,  5  Johns.  262.  Where 
goods  were  shipped  at  one  jiort,  consigned 
to  particular  individuals  at  another,  and 
the  vessel  put  into  an  intermediate  port 
in  distress,  and  the  mastin-  transferred  the 
goods  to  another  vessel,  but  instead  of 
taking  a  bill  of  lading  for  their  delivery 
to  the  original  consignees,  took  a  bill  for 
delivery  to  his  own  order,  and  by  his  di- 
rections the  goods  were  delivered  to  a  mer- 
cantile house  dillerent  from  tlie  original 
consignees,  who  sold  the  same  ;  the  pur- 
chaser, notwithstanding  that  he  paid  a 
bond  fide  ])rice  for  the  goods,  is  liable  for 
their  value  to  the  owner,  the  master  with 
whom  the  goods  were  originally  shipped 
having  no  authority  to  ilispose  of  tlie 
gooils,  either  by  himself  or  hi,-'  agents. 
Ev<!iett  I".  Saltus,  15  Wend.  474  ;  Everett 
V.  Collin,  6  Wend.  603;  Freeman  v.  East 
India  Co.,  5  B.  &  Aid.  617;  Williams  r. 
Merle,  11  Wend.  80.  See  an  elaborate 
judgment  on  the  same  question  in  Saltus 
V.  Everett,  20  Wend.  267,  and  the  Eng- 
lish and  American  cases  there  cited. 

See  Douglas  v.  Moody,  9  Mass.  548, 
where  the  master,  as  agent  of  necessity, 
was  held  to  have  power,  in  case  of  the 
wrongful  capture  of  his  vessel,  to  act  for 
the  owners,  freighters,  insurers,  and  all 
concerned,  at  the  common  charge  of  all 
tlie  interests  involved.  See  Phillips  v. 
McCall,  4  Wash.  C.  C.  141,  as  to  the  duty 
of  the  master  and  crew  in  case  of  capture, 
and  as  to  the  eflect  of  such  capture  upon 
the  relations  existing  between  them  am'i 
the  owners.  And  see  The  Yuba,  4  Blatchf. 
352,  as  to  what  are  necessaries  for  a  vessel 
in  distress  for  which  a  bottomry  bond  will 
be  sustained  ;  and  Wehl  v.  JIaxwell,  4 
Blatchf.  136,  as  to  necessary  purchases 
for  a  ship  at  a  foreign  port,  as  part  of  her 
equipments  and  appurtenances,  so  as  to  be 
exempt  from  duty. 


m 


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:!i!'i. 


294 


COMMENTAKIES  ON  SALES. 


[book  II. 


BOOK    II. 

PART  V. 
CORPORATION   SALES  AND   PURCHASES. 

1.  Directors'  op  Companies  Sales,  Etc. 

It  is  among  the  rudiments  of  the  law  that  tlie  same  person  can- 
not act  for  himself,  and,  at  the  same  time,  with  respect  to  the 
same  matter,  act  as  the  agent  of  another  whose  interests  arc  con- 
flicting. Thus  a  person  cannot  be  a  purchaser  of  property  and  at 
the  same  time  the  agent  of  the  vendor.  The  two  positions  im- 
pose different  obligations,  and  their  union  would  at  once  raise  a 
conflict  between  interest  and  duty  ;  and,  "  constituted  as  liiiman- 
ity  is,  in  the  majority  of  cases  duty  would  be  overborne  in  tiic 
struggle."  ^ 

The  law,  therefore^  will  always  condemn  the  transactions  of  a 
party  on  his  own  behalf  when,  in  respect  to  the  matter  concerned, 
he  is  the  agent  of  others,  and  will  relieve  against  them  whenever 
their  enforcement  is  seasonably  resisted. 

Directors  of  corporations,  and  all  persons  who  stand  in  a  fidu- 
ciary relation  to  other  parties,  and  are  clothed  with  power  to  act 
for  them,  are  subject  to  this  rule.  They  are  not  permitted  to  oc- 
cupy a  position  which  will  conflict  with  the  interest  of  i)artios 
they  represent  and  are  bound  to  protect.  They  cannot,  as  agents 
or  trustees,  enter  into  or  authorize  contracts  on  behalf  of  those 
for  v/hom  they  are  appointed  to  act,  and  then  personally  partici- 
pate in  the  benefits  of  such  contracts  made  with  themselves  as 
such  agents  or  trustees.  Hence  all  arrangements  by  directors  of 
a  railroad  company  to  secure  an  undue  advantage  to  themselves 
at  its  expense,  by  the  formation  of  a  new  company  as  an  auxilmiy 
to  the  original  one,  with  an  understanding  that  they,  or  some  of 
them,  shall  take  stock  in  it,  and  then  that  valuable  contracts  sliall 
be  given  to  it,  in  the  profits  of  which  they,  as  stockholdei's  in  tiie 
new  company,  are  to  share,  are  so  many  unlawful  devices  to  en- 
rich themselves  to  the  detriment  of  the  stockholders  and  creditors 

1  Marsh  v.  Whitmore,  21  Wall.  178,  183. 


PAHT  v.] 


CORPORATIONS. 


295 


of  the  original  company,  and  will  bo  condemned  whenever  prop- 
eily  brought  before  the  courts  for  consideration.^ 

tlie  defendants  contracted  with  the  plaintiffs  for  the  purchase 
of  10,000  tons  of  iron  rails,  for  delivery  during  the  following  nine 
months.  Tiic  defendants  became  insolvciit  wlien  drafts  on  them  for 
?o4,000  were  protested  for  non-payment.  Their  financial  agents 
airreed  to  pay  these  drafts,  if  the  plaintiffs  would  sign  a  release  for 
the  balance  of  the  contract.  This  was  done  by  the  treasurer  of 
the  plaintiffs'  company,  by  the  authority  of  the  president.  In  an 
action  on  the  contract  for  the  sale  and  purchase  of  the  iron,  the 
dcfoiulants  relied  on  the  release.  The  plaintiffs  relied  upon  the 
release  having  been  executed  without  authority.  It  appeared  that 
the  original  contract  for  the  sale  of  the  iron  was  executed  by  the 
president,  without  the  seal  of  the  company,  and  there  was  no  evi- 
dence of  any  resolution  of  the  board  of  directors  authorizing  or 
approving  the  contract.  The  president  was  also  superintendent 
of  the  company,  and  as  such  had  power  to  make  contracts  ;  to 
buy  and  sell,  etc.  At  a  meeting  of  the  directors,  after  the  release 
had  been  given,  tlie  matter  was  discussed,  but  no  definite  action 
was  taken  in  the  matter  until  six  months  after,  when  this  suit 
was  brought.  The  court  held  that  the  release  was  a  valid  release. 
(1)  As  the  president  had  the  authority,  without  any  express 
resolution  or  ratification  of  the  board  of  directors,  to  make  the  con- 
tract on  which  the  suit  was  brought,  it  would  seem  that,  not  being 
under  seal,  a  simple  contract  concerning  the  ordinary  business  of 
the  company  cDuld  be  released  by  him ;  the  same  power  which 
enabled  him  to  make  it  being  sufficient  to  enable  him  to  release 
it,  unless  the  power  had  been  withdrawn.  (2)  The  rule  of  law 
upon  the  subject  of  the  disaffirmance  or  ratification  of  the  acts  of 
an  agent  required  that  if  the  company  had  the  right  to  disaffirm  it 
they  should  do  it  promptly,  and,  if  after  a  reasonable  time  they  did 
not  so  disaffirm  it,  a  ratification  would  be  presumed.^  The  board, 
when  notified  by  their  agents,  not  disaffirming  the  action  at  the 
time,  but  waiting,  in  fact,  about  two  years  after  notice  of  the 
transaction,  before  passing  an  act  or  resolution  of  disaffirmance 
were  guilty  of  laches  ;  while,  if  the  suit  brought  in  the  case  could 
be  considered  a  disaffirmance,  it  came  too  late,  as  it  was  com- 
menced some  six  months  after  they  had  knowledge  of  the  release.-" 

'  Wiinlell  V.  Railroad  Company,  113 
r.  S,  fi'il  ;  Great  liUxenibourg  Railway 
<\  i:  MiiKiiiiy,  25  Beav.  586  ;  Benson  v. 
Huatlidiii,  1  Y.  &  C.  C.  C.  326  ;  Flint. 
&o.  Hiiilway  Co.  r.  Dewey,  14  Mich.  477  ; 
Kiinipi'iin  &  N.  A.  Ry.  Co.  v.  Toor,  59 
Me.  L'77  ;  Drury  v.  Cros^   7  Wall.  299. 

^  liii.lttfr  V.  BacK'er,  .  Wall.  87  ;  Ilar- 
wood  V.  Itailroad  Co.  17  Wall.  78  ;  Marsh 


fwm 


V.  Whitmore,  21  Wall.  178  ;  Vij^ers  v. 
Pike,  8  CI.  &  Fin.  650  ;  Wcntwortli  v. 
Lloyd,  32  iicav.  467  ;  Follanshce  v.  Kil- 
bi'th,  17  111.  522  ;  Twin  Lick  Oil  Co.  v. 
Marbnry,  91  U.  S.  592;  OoM  Mining  Co. 
V.  National  Iknk,  96  U.  S.  640  ;  LaW  v. 
Cross,  1  Black,  533. 

8  Indianapolis     Rolling    Mill    v,    St. 
Louis,  &c.  Railroad,  120  U.  S.  256. 


W^ 


I 


g! 


1;;. 


: 


kJ 


296 


COMMENTABIES  ON  SALES. 


[book  II. 


The  directors  of  a  company  having  assigned  to  one  of  their  nuui- 
ber  the  property  of  the  company,  the  company  being  in  embar- 
rassed circumstances,  and  the  transaction  being  subscfiuoutly 
ratified  by  the  stocliholders,  the  court  held,  on  a  bill  filed  to 
charge  the  defendant  as  a  trustee,  and  to  compel  him  to  accuuiit 
for  the  property  he  liad  received  and  the  profits  he  had  made, 
that  the  fact  that  the  assignment  was  made  to  one  wlio,  at  tlio 
time,  was  a  director  of  the  corporation,  was  not  in  itself  sullicient 
ground  to  set  aside  the  contract,  it  being  made  to  protect  the  in- 
terests of  the  comi)any  and  without  any  fraudulent  design  on  his 
part,  and  having  been  repeatedly  ratified.  In  afiirming  the  decree, 
the  United  States  Supreme  Court  declared  that  a  court  of  cijuity 
does  not  listen  with  much  satisfaction  to  the  complaints  of  a  com- 
pany that  transactions  were  illegal,  which  had  its  approval,  which 
were  essential  to  its  protection,  and  the  benefits  of  which  it  had 
fully  received.  Complaints  that  its  own  directors  exceeded  their 
authority  come  with  ill  grace  when  the  acts  complained  of  alone 
preserved  its  existence.^ 


^i- 


1  Piiemnatic  Gas  Co.  v.  Berrv,  113 
U.  S.  322. 

In  cases  wliere  the  powers  of  the 
directors  of  a  corporation  are  without 
limitation,  and  free  from  restraint,  they 
are  at  liberty  to  exercise  a  very  liberal 
disTretion  as  to  what  disposition  shall  be 
made  of  the  gains  of  the  business  of  the 
corporation.  Their  power  over  them  is 
absolute  so  long  as  tliey  act  in  the  exer- 
cise of  an  honest  judgment.  Tliey  may 
reserve  of  them  whatever  their  judgment 
approves  as  necessary  or  judicious  for 
repairs  and  improvements,  and  to  meet 
contingencies,  both  present  and  prospect- 
ive. And  their  determination  in  respect 
to  these  matters,  if  made  in  good  faith 
and  for  honest  ends,  though  the  result 
may  show  that  it  was  injudicious,  is  final, 
and  not  subject  to  judicial  revision.  They 
are  competent  to  make  any  contract  which 
•may  be  necessary,  or  tit  and  proper,  to 
enable  the  corporation  to  accomplish  the 
purposes  of  its  creation.  The  question  of 
the  expediency  of  making  a  contract 
which  is  within  the  capacity  of  the  coriK)- 
ration,  is  committed  absolutely  to  the 
judgment  of  its  managers,  by  whom  alone 
it  can  act ;  and  so  long  as  they  keep  within 
the  power  conferred  upon  the  corporation, 
and  act  in  good  faith,  with  honest  motives 
and  for  honest  ends,  their  contracts  are 
valid,  and  conclude  the  proprietors  of  the 
corporation.  Park  v.  Grant  Locomotive 
Works,  40  N.  J.  Eq.  114;  Elkins  v. 
Camden  &  Atl.  R.  R.  Co.,  36  N.  J.  En. 
241. 

Directors  of  a  corporation  will  not  be 


allowed,  under  an  arrangement  with  each 
other,  to  issue  the  bonds  of  the  corporation, 
and  then  purcdiase  them  at  less  than  tlu'ir 
value  ;  or,  if  the  value  of  the  bonds  is  in 
fact  paid  at  the  time,  and  tlie  diruetoi' 
then  proceeds  under  such  an  arratij,'(ineiit 
to  sell  the  bonds  on  his  own  jirivati'  ac- 
count, so  as  to  realize  a  i)rotit,  he  will  bt 
held  to  account  for  that  profit  to  the 
creditor  or  stockholder  of  the  corpuiiition, 
It  is,  in  fact,  the  money  of  the  coipura- 
tion,  and  not  that  of  the  director.  It  lias 
been  held  that  a  stockholder  may  buy  up 
claims  against  his  corporation  at  a  ilis- 
count,  and  prove  them  up  as  a  creilitor  at 
their  par  value  ;  but  directors,  who  oecuiiy 
the  position  of  trustees  for  the  ori'diiois 
and  stockholders,  will  not  be  allowinl  to 
deal  with  each  other  in  such  a  niaiiiier. 
Such  transactions  will  not  be  sustainwl, 
although  the  parties  may  have  acted  in 
the  best  of  faith.  Tlie  rights  of  both 
creditors  and  stockholders  will  be  pro- 
tected against  such  bargains,  and  the  trus- 
tee dealing  with  the  trust  funds,  or  con- 
tracting for  those  he  represents,  will  not 
be  allowed  to  advance  his  own  iiitercst  by 
antagonizing  the  interests  of  those  ho 
represents.  Wildrig  v.  Newport  Strict 
Ry.  Co.,  82  Ky.  511.  See  Long(!st's  Ailni. 
V.  Tyler's  Ex'or,  1  Duv.  (Ky.)  ll>t  ;  Cov- 
ington &  L.  R.  Co.  V.  Bowler's  Hciis,  9 
Bush  (Ky. ),  468.  But  tiiere  is  no  lule  of 
law  which  prohibits  a  slmreludder  from 
dealing  with  the  company  or  fr')!!i  suiiis 
or  being  stied  by  it.  And  it  has  been  luM 
that  the  president  of  a  company  bus  the 
right,  with  his  own  funds,  to "  purchase 


PAIST  V.J 


CORPORATIONS. 


297 


A  stockholder  must  make  a  proper  showing  of  wrongs  which 
he  has  sufl'cred,  and  also  of  efforts  to  obtain  relief  against  thcni, 


the  coiiipauy's  notes  ami  drafts,  and,  when 
hi-  Joes  .so,  to  succeed  to  all  tho  rij^hts  of 
tlio  iufviou.s  liolder.s.  IJeach  v.  Miller, 
2  111.  \l<\<-  151.  Ill  Harts  v.  Brown,  77 
111.  ■J-il,  it  is  said  :  "  We  Iiave  never  known 
it  lau'stidiiLiI,  that  a  director  or  stock- 
liuMiT  may  trade  witli,  borrow  from,  or 
loan  iiiuiicy  to  the  comiuny  of  which  he  is 
a  incnilii  I',  on  tho  same  terms  and  iu  like 
luiiiuicr  as  otiior  persons."  Tho  same 
(luctriiu'  is  licld  in  Twin  Lick  Oil  Co.  c. 
Marbiiiy,  HI  V.  S.  587  ;  I'.uell  v.  Biickiii},'- 
k\U],  10  liiwa,  235  ;  Whitewell  f.  Warner, 
20  Vt.  42 j  ;  Sarjjent  v.  Webster,  13  Met. 
497;  ILivwood  r.  Pii(,'rim  Soc,  21  Pick. 
270 ;  Kills  V.  Boston,  H.  &  E.  Ky.  Co., 
107  Mass.  1. 

DiriTtors  are  jirohibited,  when  a  corpo- 
ration is  insolvent  and  about  to  go  into 
lii[uiilati()n,  I'rom  preferrinj;  debts  due  to 
theiusflvcs  from  tiie  corporation,  or  from 
pivfiMiiiig  debts  in  the  payment  of  which 
tiu'v  liave  a  personal  interest.  A  corpora- 
tion, tiioiii,'h  insolvent,  has  the  jwwer  to 
jiR'tcr  creditors,  but  tho  relation  which 
(liiectois  bear  to  the  corporation  as  trustees 
ot  its  assets  is  sudi  as  they  cannot  lawfully 
I'Xti'cise  such  power  for  their  personal  ad- 
vanti^i'.  Ivoeliler  v.  IJlack  Kiver  Falls 
Co.,  2  Black,  720  ;  Drurv  i-.  Cro.ss,  7  Wall. 
21111  ;  Biadlcy  u.  Farwell,  1  Holmes  (Cir. 
Ct.),  i-i:i  ;  Corbctt  v.  AVoodward,5  Sawy. 
(Cir.  Ct. )  417,  419  ;  Richards  r.  Insurance 
Co.,  iS  N.  H.  2t)3 ;  Lippincott  v.  Carriage 
Co.,  2.')  I'cd.  Iicp.  58C  ;  Duncomb  v.  Rail- 
road Co.,  88  N.  Y.  1  ;  Hopkins'  Appeal, 
90  Ta.  7t)  ;  Robins  v.  Embry,  1  Sm.  &  M. 
207 ;  Ciirran  v.  Arkansas,  15  How.  304. 
In  Adams  V.  Kehlor  Milling  Co.,  35  P'ed. 
Kep.  43:!,  it  was  held,  tliat  if  the  directors 
of  an  insidvent  corporation,  in  the  distri- 
Imtiou  of  its  assets,  pay  a  creditor  iu  full, 
to  the  exclusion  of  others,  the  choice  ought 
not  to  lie  iiilluenced  solely  by  relationship 
existing  between  the  directors  and  the 
cieditor  so  jircfci'ied,  or  by  other  considera- 
tions of  a  purely  selfish  nature.  And  a 
prcl'iTcncc  given  by  directors  (the  majority 
of  whom  being  brothers  of  the  deceased)  to 
the  estate  of  a  deceased  director  and  presi- 
dent of  the  company  was  declared  illegal. 
In  liundy  i-.  .lackso'n,  24  Fed.  Kep.  628, 
it  was  held  that  although  the  president 
and  cashier  of  a  bank  could  not  make  a 
sale  of  the  stock  of  the  bank  to  themselves 
that  would  bind  the  bank,  but  that  the 
directors  might  have  sold  tliem  the  stock  ; 
and  when  the  bank  elects  to  ratify  the  sale 
they  made  to  themselves,  the  president  and 
cashier  will  not  be  heard  to  set  up  their 
own  illegal  or  unauthorized  act  to  avoid 
their  contract ;  nor  will  they  be  permit- 


ted to  allege  that  the  sale  and  purchase 
were  merely  colorable,  or  to  avoiil  a  for- 
feiture of  tlie  bank's  charter,  or  for  any 
other  deceptive  or  illegal  purpose.  For 
other  cases  of  sales  between  cor[ioration8 
and  directors  see  note  to  35  Feil.  Ken. 
436. 

A  stockholder  purchased  stock  with 
the  knowledge  that  it  was  illegally  issued, 
and  witli  this  knowledgi!  voted  for  direc- 
tors, and  subseipiently  applied  lor  a  writ 
of  quo  irnrninto  to  the  ilirectors  to  show 
why  thev  exercised  the  jiowersof  the  com- 
pany, 'lie  court  refused  the  apidicatiou 
on  the  ground  that  he  who  has  concurred 
in  inducing  a  party  to  e.\ercise  an  ollice 
cannot  be  lieaid  on  an  application  to  turn 
him  out  of  ollice.  Cole  v.  Dyer,  21)  Go. 
434.  For  cases  of  .sales  of  stock  where  it 
was  claimed  that  tlu;  sales  were  illegal  as 
between  the  purchasers  and  the  comjiany, 
see  the  Souther  Life  Ins.  Co.  v.  Lanier, 
5  Florida,  110  ;  Vermont  Central  R.  U. 
Co.  V.  Clayes,  21  Vt.  31 ;  Selma,  &<•.  IL  R. 
Co.  V,  llountree,  7  Ala.  670  ;  Henry  v. 
Vamilia,  &c.  K.  R.  Co.  17  Ohio,  190; 
Chester  Glass  Co.  v.  Dewy,  16  Mass.  94  ; 
Minor  v.  Mechanic  Bank,  1  IVt.  46 ; 
Zabriski  v.  The  Cleaveland,  &c.  R.R.  Co. 
23  How.  381. 

A  minority  of  the  stockholders  of  a 
corporation  may  maintain  a  bill  in  erjuity, 
oil  behalf  of  themselves  and  the  other 
stockholders,  for  conspiracy  and  fraud, 
whereby  their  interests  have  been  sacri- 
liced,  against  the  corporation  and  its 
officers  and  others  who  jjarticipatcd  in  the 
fraud  ;  but  they  will  forfeit  their  right  to 
e(|uitable  relief  by  unreasonable  delay. 
I'eabody  v.  Flint,  88  Mass.  52.  See  Veazie 
V.  Williams,  3  Story,  610  ;  Nash  v. 
Adam-s,  10  Cush.  252  ;  Fuller  v.  Melrose, 
1  Allen,  166.  In  Smith  v.  Poor,  40  Me. 
415,  the  plaintiff,  being  a  member  of  a 
corporation,  ami  having  made  a  contract 
with  it,  brought  an  action  against  some  of 
the  directors,  claiming  compensation  from 
them,  for  certain  alleged  fraudulent  acts 
and  votes,  by  reason  of  which  he  had  been 
damnified  ii»  his  various  relations  with 
the  corporation.  The  court  held  lliat  the 
directors  of  a  corporation,  being  chosen  by 
the  votes  of  the  corporators,  are  the  agents 
of  the  corporation,  and  are  responsible  to 
it  for  official  miscoiidiict  and  I  rand  in  the 
discharge  of  their  duty,  and  are  not  liable 
to  such  action  at  the  suit  of  stockholders. 
See  Franklin  Fire  Ins.  Co.  v.  Jenkins,  3 
Wend.  130  ;  Smith  v.  Hurd,  12  Met.  371 ; 
Robinson  v.  Smith,  3  Paige,  222  ;  Horsey 
V.  Veazie,  24  Me.  9  ;  Allen  v.  Curtis,  26 
Ct.  456  ;  Stetson  v.  Faxon,  19  Pick.  155  ; 


m^ 


iHv 


I" , 


n 


:u 


;; 


298 


COMMENTARIES   ON  SALES. 


[book  II. 


I%1\ 


"in 


before  a  court  of  equity  will  interfere  and  set  aside  the  transac- 
tions of  a  railway  company  or  of  its  directors.    It  is  not  enough 

Piitrkk  V.  Oaa  Co.,  17  Mo.  App.  4tl2 ; 
Halts  V.  Wood,  37  N.  Y.  318  ;  Buniutt  i', 
St.  Louis  Car  Hooting  Co.,  IS)  Mu.  Ahp, 
349. 

Ill  V'erpliink  v.  Mercantile  Ins.  Co,,  1 
Edw.  Cli.  84,  it  was  iu'M  tiuit  tlie  rdution 
of  cesluis  quii  trust  and  trustees  does  not 
exist  between  stoeklioldeis  of  an  incur- 
jwratod  coniiiany  and  the  eorpuiation  it. 
self;  nor  are  they  in  the  relative  .situation 
of  partners;  nor  are  the  stoeliiiolilcis  eicil- 
itors  of  the  eonipany.  The  e(ini[i:iny  [a 
merely  a  creature  of  tiie  law,  —  a  politic 
and  not  a  natural  body.  It  is  made  ii|iliy 
the  compact  entered  into  by  the  stock- 
holiU'rs,  each  of  whom  becomes  a  cor- 
porator identilied  with  and  foiniiiij;  a 
eonstitU(!nt  part  of  the  eorpoiate  lioily. 
Wlien  a  corporation  a,:^i;regate  is  ri)iiiii'4, 
and  the  management  an<l  eiintml  ul'  its 
olHcers  are  in  the  hands  of  direeidis,  the 
hitter  become  the  agcuits  and  tiiistecs  of 
the  corporators,  and  a  relation  is  erciitcd 
between  the  stockholders  and  those  direc- 
tors, who,  as  trustees,  Ih'coiuc  iiei'dUiitabli' 
for  dereliction  of  duty  and  violation  of 
trust.  In  tieott  y.  Depeyster,  1  Ivlw.  C'li. 
513,  it  was  held  that  persons  who  become 
directors  or  managers  of  a  eorpniiitiou 
place  themselves  in  the  situation  of  trus- 
tees, and  the  relation  of  trustees  ami  ca- 
tuts  que  trust  is  thereby  created  between 
them  and  the  stockholders.  The  diifctors 
are  obliged  to  take  the  same  eare  anil  use 
the  same  diligence  as  factors  and  agents. 
They  are  answerable  not  only  for  their 
own  fraud  and  gross  negligence,  but  also 
for  all  faults  which  are  contrary  to  the 
care  required  of  them.  But  in  appointing 
subordinates,  they  do  not  becoint;  sureties 
for  their  fidelity  or  good  behavior.  If  they 
select  persons  to  (ill  such  situations  who 
are  known  to  tliom  to  bo  unworthy  of 
trust,  or  notoriously  of  bad  eliaracter,  ami 
a  loss  by  fraud  or  embezzlement  ensues, 
in  such  a  case  a  personal  lialiility  rests 
upon  them,  but  not  othersvise.  Tliey  arc 
not  to  be  held  persomdly  liable,  as  Iw- 
tween  themselves  and  a  stockholder,  un. 
less  there  has  lieen  negligence  or  frnml. 
See  Marman  v.  Tappenden,  1  East,  •".'^''i 
The  Attorney-General  v.  The  Corporaticii 
of  Exeter,  2  Russ.  4:<  ;  Crooslianks  >:. 
Turner,  7  Bro.  P.  C.  2r>r> ;  (liav  v.  Chap- 
lin,  2  lluss.  126;  The  Maidiattaii  Hank  c 
Lydig,  4  Johns.  347.  It  is  a  well-settled 
principle  of  equity  Jurisprudence  tliat  a 
party  holding  a  fiduciary  relation  to  trust 
property  cannot  become  the  jiurcliaser  of 
such  property,  cither  directly  or  iii'j'" 
reetly;  and  if  he  does,  the  sale  is  void- 
able, and  will  be  set  aside  at  the  mere 


Cunningham  v.  Pell,  5  Paige,  607  ;  Hod- 
son  V.  Copeland,  16  Me.  314. 

Wiiero  a  company  used  the  invention 
of  one  of  their  directors  without  an  express 
contract  to  pay  for  its  use,  it  was  held 
that  an  implied  assumpsit  for  the  value  of 
the  invention  would  lie.  Deane  v,  Hodge, 
35  Minn.  146.  And  a  corporation  has  been 
held  liable,  upon  an  implied  assumpsit,  to 
l)ay  the  reasonable  value  of  services  ren- 
dered for  the  corporation  by  a  director 
outside  of  his  duties  as  director.  Rogers 
V.  Hastings  &  Dakota  Ry.  Co.,  22  Minn. 
25.  But  he  could  not,  as  director,  aid  by 
his  vote  in  fixing  the  amount  of  such  com- 
pensation, lor  in  that  case  there  would  bo 
II  conflict  of  interests  inconsistent  with  his 
otHcial  duty.  Jones  v.  Morrison,  31  Miini. 
140,  148.  See  Rider  v.  Union  India 
Rubber  Co.,  5  IJosw.  85,  97  ;  Gardner  v. 
Butler,  30  N.  J.  Ivj.  702;  Marston  r. 
Swett,  66  N.  Y.  2u6,  212;  Marsh  v. 
Dodge,  4  Hun,  281.  Purchases  nuidu  by 
a  corporation  cannot  afterwards  be  im- 
jieached  by  those  who  at  the  time  of  the 
purchase  constituted  a  majority  of  the 
directors,  whore  there  is  no  impress  of 
unfairness  or  characteristic  of  fraud  about 
the  transaction.  Hill  v.  Nisbet,  100  Ind. 
341  ;  Kit.hen  v.  St.  Louis,  &c.  U.  W.  Co., 
69  Mo.  225  ;  Merrick  v.  Peru  Coal  Co.,  61 
HI.  472  ;  Bristol  Milling  Co.  v.  Probaseo, 
64  Ind.  406  ;  Ward  v.  Polk,  70  hid.  309. 
A  company  was  held  liable  to  a  director 
for  a  loan  to  the  corporation,  although  ho 
was  one  of  four  directors  present  when  the 
order  was  made  for  the  issue  of  a  note  for 
the  amount,  the  other  three  directors  vot- 
ing for  the  order,  and  there  being  no  issue 
or  charge  of  fraud,  or  want  of  good  faith 
on  the  part  of  the  director  holding  the 
note,  with  reference  to  his  vote  at  the 
meeting  of  the  'irectors,  nor  charge  of 
fraud  against  the  other  directors,  Leavitt 
V.  Oxford  &  (}.  S.  M.  Co.,  3  Utah,  265. 
See  Buell  v.  Buckingham,  16  Iowa,  284  ; 
Hayward  v.  Pilgrim  Soc,  21  i'ick.  270  j 
Smith  w.  Skeary,  47  Conn.  47  ;  The  Unitecl 
States  R.  S.  Co.  v.  The  Atlantic  & 
G.  W.  R.  R.  Co.,  34  Ohio,  450 ;  Twin  Lick 
Oil  Co.  V.  Marbury,  91  U.  S.  587.  But  a 
contract  with  a  director,  where  there  were 
but  three  directors,  and  he  and  one  other, 
only,  voted  in  favor  of  the  contract,  the 
contract  was  held  invalid,  Bennett  v.  St. 
Louis  Car  Roofing  Co.,  19  Mo.  App.  349  ; 
for  the  ilirector  must  establish  his  contract 
by  proof  that  he  dealt  with  other  agents  of 
the  corporation  who  had  power  to  act  in 
the  premises.  If  his  own  vote  was  essen- 
tial to  give  life  to  the  contract,  then  it 
cannot  be  upheld  against  the  corporation. 


I'ART  v.] 


CORPORATIONS. 


299 


tliat  there  may  bo  a  doubt  as  to  the  authority  of  the  directors,  or 
as  to  the  wisdom  of  their  proceedings.     Griovauces,  real  and  Bub- 


tileasnri'  nf  the  bent'fiuiarics,  although  such 
HiiiaiiiiT  may  have  {mid  u  full  prico  and 
cruiiicil  ni>  iidviiiitiige.  See  Newcomb  v. 
?iroiiks,  l(i  VV.  Va.  59,  and  oostes  there 
I'itfd.  Tliis  rule  is  not  contined  to  tru.s- 
ti't's  aiul  lidiiciaries  in  the  technical  sense 
uf  tlii'sc  terms,  but  it  extends  to  every 
litTSdii  cemiii^  witiiin  the  reason  of  the 
mil'.  It  embraces  trustees,  guardians, 
t'Xfcutors,  ndininistrators,  agents,  cash- 
iers of  blinks,  factors,  auctioneers,  .slier- 
itfs,  coMiiiiissioners  in  bankruptcy  and 
tlifir  siilicitors,  assignees  of  bankrupts, 
iittDiiii'Vs-.it-law,  directors  of  corporations, 
mill  otlicr  parties  lietween  whom  liduciary 
ri'latidiis  exist.  Fo.\  v,  Macbeth,  2  Bro. 
(.'.  C".  4110  ;  Br.ithers  v.  Brothers,  7  Ired. 
Kip  l.'iO  ;  Pa  ton  v.  Thompson,  2  Jones 
Kip  (N.C.)  28.5;  Scott  v.  Freeland,  7  Sm. 
&  M.  417;  Davone  v.  Fanning,  2  .Johns, 
eh.  2,VJ;  Xewcomb  v.  Brooks,  16  W.  Vn. 
H3.  Ill  .\bbott  V.  America..  Hard  Rubber 
Co.,  3:i  Harb.  [>7S,  a  sale  of  the  corporate 
[iiopcity  was  set  aside  because  directors  of 
the  coiiipaiiy  were  interested  in  the  pur- 
chase. Tile  same  rule  as  to  purchasers  of 
corporate  property  by  directors  has  been 
applied  ill  many  cases,  Cumberland  Coal 
Co.  r.  Sherman,  30  Barb.  553;  Banks  v. 
Juilali.S  Conn.  145;  Hoffman  Steam  Coal 
Co.  V.  Cumberland  Coal  &  Iron  Co.,  16 
Mtl.  iiiC)-,  Abeideen  l!y.  Co.  v.  Blaikie,  1 
McQueen,  461  ;  llobinson  v.  Smith,  3 
Paige,  222;  Percy  v.  Milladon,  3  La.  568; 
Hoilges  I'.  New  England  Screw  Co.,  1 
R.  1.  321  ;  Benson  v.  Hawthorne,  6  Y. 
k  C.  ,S26 ;  The  York  &  N.  M.  Ry.  Co. 
V.  Hudson,  16  Beav.  485;  Sweeny  r.  Sugar 
ReliiiiiigCo.,  30  W.  Va.  443. 

The  .same  rule  does  not  generally  apply 
to  the  stockholders  of  a  corporation  wlach 
is  iiirtMa;;(Ml  by  a  Vioard  of  directors. 
Whetlier  it  does  or  not  niu.st  depend  upon 
the  special  facts  of  the  particular  case,  — 
the  general  rule  b<'ing  that  a  stockholder 
of  such  corporation  may  purchase.  But 
in  cases  where  the  stockholders  assumed 
and  iieii'ormed  the  duties  which  ordinarily 
heloiig  to  a  board  of  directors,  it  has  been 
held  tliat  the  usual  disabilities  of  the  di- 
rectors attached  to  them.  Reilly  v.  Ogle- 
l«y,  2.'.  \y.  Va.  36,  43.  And  see"  Banks  v. 
.bulali,  S  Conn.  145;  Moore  v.  Schoppert, 
22  \V.  Va.  282.  But  where  the  matter  is 
entirely  void  of  fraud,  the  purchase  by 
a  director  (^an  be  ratified  by  the  stock- 
holders. Cumberland  Coal  Co.  v.  Sher- 
man, 30  Barb.  553,  573.  It  is  said  in 
tliis  case  tliat  the  confirmation  by  the 
■stoekholilers  cannot  be  by  a  majority,  but 
that,  "  to  bo  complete,  it  must  be  the 
joint  act  of  the  whole  body."     But  the 


authorities  cited  for  this  proposition  — 
A>  parte  Hughes,  6  Ves.  622  ;  Ke  parte 
Lacey,  6  Ves.  628;  A'.c  purle  James,  8  Ves. 
337  ;  Davouc  v.  Fanning,  2  .lohns.  Ch. 
264 — do  not  sustain  it.  While  the  re- 
lation iH'tween  directors  and  stockholders 
is  in  some  res])ects  that  of  trustees  and 
cestuis  qui'  trust,  it  is  submitted  that  in 
one  e.s.sential  particular  in  this  connec- 
tion it  is  radically  ditrerent.  Thus,  or- 
dinarily, the  act  (d"  one  cestui  que  trust, 
like  that  of  one  of  the  co-owners  of  per- 
sonal property,  will  not  bind  the  other 
cvstuis  que  trust,  or  the  other  co-owner.s, 
yet,  as  a  general  rule,  in  the  absence  of 
fraud  and  bad  faith,  the  votes  of  a  ma- 
jority of  stockholders,  duly  taken,  bind 
their  co-stockholders.  See  the  Northwest 
Transportation  Co.  v.  Beatty,  12  App.  Cos. 
689,  593  (stated  infra,  ji.  306  ct  svq. ),  where 
the  law  is  clearly  laid  down;  and  ca.ses  there 
citeil.  The  mistake  niaile  in  Cumberland 
Coal  Co.  V.  Sherman,  30  Barb.  553,  573, 
is  cau.sed,  we  think,  in  conloiinding  stock- 
holders with  ordinary  ccsluis  que  trust, 
wherea-s,  as  we  have  jwinted  out,  there  is 
a  very  marked  distinction  between  the 
two.  In  Fliteroft's  Case,  21  Ch.  Div. 
634,  the  distinction  we  take  is  sustained. 
There,  proj)erly,  directors  are  designated 
*' quasi  trustees  for  the  company."  The 
same  distinction  is  siistaincil  in  In  re 
Darham,  25  Ch.  Div.  752,  761,  763. 
The  proper  distinction  is  taken  in  Greg- 
ory V.  Pat(diett,  33  Beav.  606,  applicable 
to  all  cases  where  there  is  an  absence  of 
bad  faith,  that  the  power  of  the  majority 
applies  to  all  matters  of  their  business, 
but  not  to  matters  beyond  the  ])owers  of 
the  company,  nor  to  measures  inconsistent 
with  the  object  for  which  the  company 
was  constituted. 

The  case  of  the  New  Orleans,  &c.  U.  R. 
Co.  V.  Harris,  27  Miss.  517,  537,  accords 
with  the  holding  in  the  Knglisii  ca.se3. 
The  court  there  say  :  "  Incorporated  com- 
panies are  subject  to  the  same  jirinciple 
which  prevails  in  the  community  at  large, 
that  the  acts  of  the  major  it  i/  in  cases  within 
their  charter  pou-crs  are  Migatury  on  the 
viinorilij."  The  general  rule  on  the  sub- 
ject is  well  expressed  by  Tilgliman,  C.  J. 
He  says  :  "The  fundamental  principle  of 
every  association  for  .self-goviuMinieiit  is 
that  no  one  shall  be  bound  e.vcept  with 
his  own  consent,  exi)ressed  by  himself  or 
by  his  representatives  ;  but  actual  a.ssent 
is  immaterial,  the  assent  of  the  majority 
being  the  assent  of  all;  and  this  is  not  only 
constructively  but  actnolly  true  ;  for  that 
the  will  of  the  majority  shall  in  all  cases 
be  taken  as  the  will  of  the  whole  is  an 


1; 


m^ 


H':l 


800 


COMMENTARIES  ON  SALES. 


[UOOK  II. 


■^■3 


stantial,  must  exist,  and  before  an  individual  stockholder  can  be 
heard,  he  must  show  that  he  has  exhausted  all  the  means  within 
his  reach  to  obtain,  within  the  corporation  itself,  the  redress  ol 
his  }j;rievance8  or  action  in  conformity  to  his  wishes.' 

A  corporation,  organized  and  existing  under  the  laws  of  Ohio, 
where  it  liad  its  principal  place  of  l)usiness,  entered  into  a  con- 
tract in  Colorado,  with  the  defendants,  who  were  citizens  ui  Oolu- 


itnplied,  but  an  cssoiitinl,  ati|iulati()ii  in 
all  associations  of  tliis  sort.  St.  Mary's 
Chmrli,  t»  S.  &  If.  517.  When  tho  char- 
ter has  niaili!  no  provision  on  the  subject, 
</t(,v  in  uiK/iicstioiKth/i/  the  rule  in  riyiinl  to 
all  (tcitt  (tiilltorizrd  liij  l/icfunikiinnital  law, 
pcr/onnal  in  vxccution  of  the  objects  of  the 
ineor/iofdlioii."  An  agreenient  was  entered 
into  by  three  persons  owning  the  ninjority 
of  the  stock  to  ele(^t  the  directors  an(l  con- 
trol tlie  alliiirs  of  the  company.  Tlie  agre(!- 
rnent  was  sustained.  Faulds  v.  Yates,  57 
111.  41(5.  Tlie  court  said  :  "There  was  no 
fraud  in  tlie  agreemelit,  which  has  been  so 
bitterly  assailed  in  the  argument.  There 
was  nothing  unlawful  in  it ;  there  was 
nothing  which  necessarily  affected  tho 
rights  and  interests  of  the  minority. 
Three  ]>ersons  owning  a  majority  of  the 
stock  had  the  nnifuestioned  right  to  com- 
bine, and  thus  secure  the  board  of  direct- 
ors and  the  management  of  the  property. 
Corporations  are  governed  by  the  republi- 
can ])rinciple,  that  the  wlwle  are  hound  by 
tlie  acts  of  the  major  it  i/  ivhen  the  acts  con- 
form to  the  law  of  their  creation.  The  co- 
operation, then,  of  these  parties  in  tho 
election  of  the  olficers  of  the  company, 
and  their  agreement  not  to  buy  or  sell 
stock  ex(H'pt  for  their  joint  benefit,  cannot 
properly  be  characterized  as  dishonest  and 
violative  of  the  rights  of  others,  and  in 
contravention  of  pul)lic  policy.  If  one 
man  owned  a  majority  of  the  stock  ho 
surely  had  the  right  to  select  the  agents 
for  its  honest  management."  The  same 
mistake  that  was  made  in  Cumberland 
Coal  Co.  V.  Sherman,  30  Barb.  553,  573, 
in  treating  directors  as  trustees  instead  of 
quasi  trustees,  is  made  by  Ritchie,  C.  J.,  in 
Beatty  v.  North  West  Tr.  Co.,  12  Sup.  Ct. 
of  Can.  R.  605  ct  seq.  (stated  post,  p.  306 
ct  seq.),  the  whole  of  whose  judgment  pro- 
ceeds on  the  ground  that  directors  and 
stockholders  •  ccupy  the  strictly  relative 
position  of  trustees  and  ccstuis  que  trust, 
which,  as  we  have  pointed  out,  is  not  ac- 
curate, directors  being  at  the  utmost  but 
quasi  trustees,  and  in  their  relation  as 
mere  stockholders  to  the  other  stockhold- 
ers (the  point  wdiich  was  involved  in 
Beatty  v.  North  West  Tr.  Co.,  12  Sup.  Ct. 
of  Can.  K.  598)  they  are  not  even  that. 

On  the  other  hand,  as  we  have   pre- 
viously shown,  it  is  an  undisputed  princi- 


ple of  law  that  directors  and  ollicers  of 
corporations  occupy  a  position  ul'  tiiist, 
ancl  must  act  with  the  utmost  ^'(jdij  I'iiltli. 
They  will  not  bo  allowed  to  deal  with  thi' 
corporate  funds  and  property  for  tiicir  ini- 
vato  gain.  They  have  no  right  t>  \rn\ 
with  themselves  and  for  the  corpDnitiou 
at  the  same  time,  and  they  must  accuiint 
for  tho  profits  made  by  the  use  of  the  com- 
pany's assets,  and  for  moneys  in.ele  liy  i\ 
breach  of  their  duty.  To  that  e.\tir.t  tlitii 
position  is  very  much  the  same  as  that  of 
trustees.  Wanl  v,  Davidson,  89  .Mo,  44j; 
Wondell  V.  Railroad,  103  U.  S.  OS!  ;  Keo- 
kuk  Packet  Co.  v.  Davidson,  95  Mo.  4«"; 
Attaway  v.  The  Bank  of  St.  Louis,  W  .Mo. 
485;  Bliss  v.  Matterson,  45  N.  V,  22; 
Tobey  v.  Robinson,  99  111.  233  ;  Ci.pelaiid 
V,  Johnson  ALuuif.  Co.,  47  Huii,  235; 
Butts  V.  Wood,  37  N,  Y.  317  ;  (oleiiian 
V.  iiailroad,  38  N.  Y.  201  ;  Jletropolitan 
]{.  R.  Co.  V.  Manhattan  R.  U.  Co.,  11 
Daly  (N.  Y.),  367,  492  ;  ManNawghtoii  v. 
Osgood,  41  Hun,  109  ;  Hovle  i'.  I'latts- 
burgh  R.  R.  Co.,  54  N.  Y.  314;  Blake ». 
Buffalo  Creek  It.  K.  Cj.,  56  N.  Y.  486. 
But  in  Branch  v.  Roberts,  50  Biuli.  435, 
it  was  held  that  neither  stockholders  nor 
creditors  could  sue  directors  for  diunages 
on  the  ground  that  stock  or  tiie  oMiga. 
tions  of  the  company  became  vaUieh'ss  liy 
the  ndscomluct  of  the  directors.  And  see 
MacNaughton  v.  Osgood,  41  llun,  10ft; 
Brown  v.  Vandyke,  8  N.  J.  Kq.  795.  hi 
GiH'ord  V.  R.  R.  &  Tr.  Co.,  10  N.  .1.  Eq. 
171,  it  was  held  that  a  court  of  e(iuity 
will  interfere  on  behalf  of  a  single  stock- 
holder if  he  can  show  that  the  corpora- 
tion are  employing  their  statutory  jiowers, 
funds,  etc.,  for  the  aceomplishiiient  of  piii- 
jioses  not  within  the  scope  of  their  insti- 
tution, and  an  injunction  in  such  oases 
will  be  granted  ;  but  that  when  acting' 
within  the  scope  and  in  obedieiue  to  tin' 
provisions  of  the  constitution  of  the  coi])!)- 
ration,  the  will  of  the  majority,  duly  ex- 
pressed at  a  legally  constituted  assembly, 
must  govern.  See  Ward  v.  Soe.  of  At- 
torneys, 1  Coll.  370;  March  v.  Extern 
Railroad  Co.,  40  N.  H.  548,  as  to  the 
riglits  of  minorities  of  the  stockholders  of 
a  corporation. 

1  Dimpfell  V.  Ohio  &  Mississijijii  Ry. 
Co.  110  IT.  S.  209  ;  Hawes  v.  Oakland, 
104  U.  S.  450. 


'ART  v.] 


CORPORATIONS. 


80t 


rado,  by  wliicli  it  was  agreed  that  the  plaintiffs  should  sell  to  tho 
(Icfondaiits,  and  deliver  to  them  on  the  ears  in  Ohio,  a  steain-en- 
friiic  and  other  macliinery,  in  consideration  whereof  tho  defend- 
ants were  to  pay  tho  plaintiffs  the  priee  stipulated  in  tli(!  contract 
for  such  machinery.  By  Art.  15,  see.  10,  of  the  constitution  of 
('oli)rudo,  it  is  provided  that  "  no  foreign  corporation  shall  do  any 
liiisinoss  in  this  State  without  having  one  or  more  known  places 
of  business,  and  an  authorized  agent  or  agents  in  the  same  upon 
wlioin  process  may  bo  served."  IJy  sees,  23  and  2(J  of  an  Act  "  to 
jirnvidc  for  the  formation  of  corporations,"  passed  in  187(5,  the  leg- 
islature of  Colorado  enacted  provisions  to  carry  such  clause  of  tho 
constitution  into  effect.  In  an  action  brought  to  recover  from 
the  defondants  damages  for  breach  of  the  contract,  they  relied  for 
their  defence  on  tho  fact  that  this  clause  of  the  constitution  and 
act  of  tho  legislature  had  not  been  com|)lied  with.  On  demurrer, 
tlic  jud;ios  of  the  Circuit  Court  divided  in  opinion,  and  ccn'tified 
tiifir  division  of  opinion  to  the  United  States  Supreme  Court.  Tho 
right  of  the  people  of  a  State  to  ?»i  .cribe  generally  by  its  consti- 
tution and  laws  the  terms  upon  wiiich  a  foreign  corporation  shall 
lie  allowed  to  carry  on  it  business  in  the  State,  has  been  settled.^ 
And  it  was  conceded  that  if  the  contract  on  which  the  suit  was 
brought,  was  made  in  violation  of  a  law  of  the  State,  it  could  not 
1)0  enforced  in  any  court  sitting  in  the  State  charged  with  the  in- 
terpretation and  enforcement  of  its  laws.^  But  the  court  held  that 
the  constitution  and  statute  related  to  the  regular  and  customary 
liusincss  operations  of  the  corporation,  and  did  not  apply  to  a  sin- 
f,'le  transaction  like  the  one  in  question.*'^ 

Bonds  were  given  by  a  railway  company  to  a  construction  com- 
pany for  work  for  the  railway  company,  the  payment  of  which 
bonds  was  resisted  by  the  stockholders  of  tho  railway  company, 
who  cliiirged  that  the  bonds  were  fraudulently  issued,  two  of  the 
directors  of  the  railway  company  being  members  of  tho  construc- 
tion company,  and  the  construction  company  having  agreed  to  re- 
lease from  their  subscriptions  for  their  stock,  certain  of  the 
stockliiddcrs  of  the  railway  company,  including  all  the  directors, 
such  subscriptions  amounting  to  ir>10,.500  of  the  whole  •'5!41,000 


'  Hank  of  Augusta  v.  Earle,  13  Pet. 
M9  ;  Piiiil  V.  Virginia,  8  Wall.  168  ; 
Ducat  V.  Chicago,  10  Wiill.  410. 

-  Hunk  of  the  United  States  v.  Owens, 
2  Pet.  U-17  ;  Groves  v.  Slaughter,  15  Pet. 
443!  Harris  v.  Runnels,  12  How.  79; 
Brown  v.  Towkington,  .3  Wall.  377  ;  David- 
son r.  LnnWr,  4  Wall.  447  ;  Hananer  v. 
Doiine,  12  Wall.  342  ;  Wheeler  v.  Russell, 
17  Mass.  258  ;  Law  v,  Hodson,  11  East, 
300 ;   Little  v.   Poole,   9  B.   &  C.  192 ; 


Tliorne  v.  Travellers' Insurance  Co.,  80  Pa. 
St.  16  ;  Allen  v.  Hawks,  13  Pick.  79,  82 ; 
Roche  V.  Ladd,  1  Allen,  436,  441  ;  /t  re 
Comstock,  2  Saw.  218. 

*  Cooper  Alanufacturing  Co.  v.  Fergu- 
son, 113  U.  S.  727.  And  see  Utley  v. 
The  Clark-Gardner  Mining  Co.,  4  Col. 
3t)9  ;  Potter  v.  The  Bank  of  Ithaca,  5 
Hill,  490  ;  Suydam  v.  The  Morris  Canal 
and  Banking  Co.,  6  Hill,  217  ;  Graham  v. 
Hendrick,  22  U.  Ann.  523. 


I    ' 


■iPi 


m 


h  ;  1 


u 


i:^ 


H 


302 


COMMENTARIES  ON  SALES. 


[book  II. 


stock  subscribed ;  which  stock  was  worthless,  and  for  which  the 
individual  stockholders  were  liivble.  The  court  held,  that  as  the 
contract  was  fraudulent,  it  was  voidable  at  the  election  of  tlie  par- 
ties affected  by  the  fraud,  and,  on  the  stockholders  repudiating 
the  contract,  the  bonds  were  held  void  in  the  hands  of  parties  who 
were  not  bond  fide  holders  for  value ;  ^  but  that,  although  the  origi- 
nal  contract  was  fraudulent  and  "void,"  the  construction  company 
could  recover  against  the  railway  company  for  the  worlv,  labor, 
and  materials  actually  furnished  to  the  latter,  not  as  estimated  by 
the  prices  named  in  the  contract,  but  on  a  quantum  meruit,  for 
their  real  value  to  the  railway  company .^ 

A  single  stockholder  in  a  corporation  has,  undoubtedly,  the 
same  right  to  institute  legal  proceedings  against  the  coiporation 
for  the  protection  of  his  individual  rights,  that  a  third  party,  not 
a  stockholder,  possesses ;  but  when  he  resorts  to  such  proceedings 
to  protect,  not  simply  such  interests,  but  the  property  and  rights 
of  the  corporation,  against  the  action  or  threatened  action  of  third 
parties,  thus  assuming  duties  properly  devolving  upon  its  direct- 
ors, he  must  show  a  clear  breach  of  duty  on  their  part  in  neglect- 
ing or  refusing  to  act  in  the  matter,  amounting  to  sucli  grossly 
culpable  conduct  as  would  lead  to  irremediable  loss  to  him  if  he 
were  not  permitted  to  bring  the  matter  before  the  courts.  And 
such  neglect  and  refusal  must  not  be  simulated,  but  real  and  per- 
sisted in,  after  earnest  efforts  to  overcome  it.^ 


-  Thomas  v.  Brown ville,  &c.  R.  R.  Co., 
109  U.  S.  522.  See  Twin  Lick  Oil  Co.  v. 
Marburv,  91  IJ.  S.  587  ;  VVsinlell  v.  The 
Unioft  Pacific  U.  R.  Co.,  4  Dill.  339  ;  103 
U.  S.  651. 

^  See  also  Gardner  v.  Butler,  3  Stew. 
Eq.  702. 

3  Detroit  v.  Dean,  106  U.  S.  537  ; 
HawHs  V.  Oakland,  104  U.  S.  450. 

The  maua<fing  coinniittee  of  a  corpora- 
tion, whicl'  was  orgauizHd  pursuatit  to  a 
statute,  but  which  had  not  filed  the  articles 
of  association  with  the  county  clerk,  as 
the  statute  d(;clared  it  was  necessaiy  to  do 
before  the  corporation  should  commence 
business,  entered  into  a  contract  for  ma- 
chinery with  the  plaintiff,  which  was  fur- 
iiislicd  to  the  corporation  and  accepted  by 
it.  In  a  suit  against  the  committee  it  was 
held,  that,  having  disclosed  their  princi- 
pals, they  were  not  personally  liable,  but 
that  th3  corporation.having  ratified  the  con- 
tract by  recognizing  and  treating  it  as  valid, 
made  the  contract  in  all  respects  as  it 
would  have  been  if  the  requisite  power  had 
existed  when  it  was  entered  into  ;  the  cor- 
poration having  ivssumed,  by  entering  into 
the  contract  with  the  plaintiff,  to  have 
the  reijuisite    power,   both  parties    were 


estopped  from  denying  it.  The  restriction 
imposed  by  the  statute  was  a  si;!i|ile  in- 
hibition. It  did  -not  declare  that  what 
was  done  should  be  void,  nor  was  any  pen- 
alty prescribed.  No  one  but  the  Stati'  could 
object.  The  contract  was  valid  as  to  the 
plaintiir,  and  he  had  no  right  to  raise  the 
question  of  its  invalidity.  Whitiiev  v. 
Wyman,  101  U.  S.  392  ;  National  Bank 
V.    Matthews,  98  U.  S.  621. 

The  question  in  National  Hank  v. 
Matthews,  98  U.  S.  621,  arose  uinler  the 
banking  act  (Rev.  Stat.  19!>9,  §§  5130, 
5137),  prescribing  the  business  ot  banks, 
and  prohibiting  the  dealing  by  them  in 
real  estate  except  in  exceptional  cases. 
The  act  authorizes  loans  to  be  made  "on 
personal  security."  Money  was  loaned  on 
a  promissory  note,  secured  by  a  deed  of 
trust  to  a  third  party  on  real  estate,  wide  h 
was,  in  effect,  a  mortgage  on  real  estate, 
with  a  power  of  sale.  The  United  States 
Supreme  Court  followed  the  doctrine  laid 
down  in  the  First  Nat.  Bk.,  kc.  v.  Itaire, 
36  Iowa,  443,  where  it  is  said  :  "  Kvery 
loan  or  discount  by  a  bank  is  made  in  ",m\ 
faith,  in  reliance,  by  way  of  seoiirity, 
upon  the  real  or  personal  jiroperty  of  the 
obligors  ;  and  uulesa  the  title  by  mort- 


[book  II. 


PART  v.] 


CORPORATIONS. 


303 


which  tlie 
tiat  as  the 
of  the  par- 
cpudiating 
)artios  who 
li  the  origi- 
in  company 
('ork,  bxbor, 
jtimated  by 
meruit,  for 

ibtcdly,  the 
corporation 
i  party,  not 
proceedings 
'  and  rights 
tlon  of  third 
1  its  dircct- 
[  in  ncglect- 
5uch  grossly 
to  him  if  he 
ourts.    And 
•eal  and  per- 


The  rpstriction 

■  as  a  si:!iiile  in- 

clarc,  that  what 

lor  was  any  pen- 

t  the  Stiiti' could 

valid  as  to  the 
ight  to  raise  the 

"    Whitney  V. 

National  Bank 

11. 

tonal  Bank  i'- 
arose  umler  the 
1999,  §§  5136, 
siness  ot  hunks, 
injr  by  them  i'l 
oe^itiiinal  cases. 
;o  be  inatle  "  on 
■y  was  loaiU'il  on 
il  by  a  (led  "f 
•al  •-■state,  which 

oti  real  estate, 
.0.  United  States 
he  doctrine  laid 

•    &c.  V.  Haire, 
said  :  "  Kverv 

is  niado  in  f;ood 

ay  of   security, 

provi'i'ly  "f  '^" 
titiu  by  mort- 


The  president  of  a  company  purchased  with  his  own  funds,  and 
with  the  icnowledge  and  approval  of  the  directors,  the  outstanding 
bond  of  the  company.  In  an  action  by  the  assignee  of  the  bond 
for  the  amount  thei'cof  against  the  company,  the  United  States 
fiupreme  Court  held,  that  the  relation  between  the  president  and 
the  company  at  the  time  of  the  transaction  did  not  furnish  any 
defence,  either  at  law  or  in  equity.  The  relation  undoubtedly  was 
one  of  a  confidential  and  fiduciary  character,  but  there  was  no 
ground  to  challenge  the  good  faith  with  which  the  business  was 
conducted.  The  bond  of  the  company  was  purchased  with  the 
president's  own  means,  and  not  those  of  the  company ;  the  value 
paid  was  full ;  and  every  step,  when  taken,  was  made  known  and 
assented  to  by  .the  directors  of  the  corporation.  The  transaction 
was  legitimate  in  itself  and  beneficial  to  the  company,  and  the 
dealing  was  not  by  the  president  with  himself,  but  with  the  cor- 
poration, in  fact,  represented  and  acting  by  other  directors,  with 
full  knowledge  of  all  the  facts.^ 

In  Hotel  Company  v.  Wade,^  where  a  bill  was  filed  to  foreclose 
a  mortgage  given  to  the  plaintiffs  to  secure  bonds  issued  by  the 
defendants,  a  corporate  b.dy,  it  was  claimed  by  the  defendants  that 
the  bonds  and  mortgage  were  invalid,  by  reason  of  the  trust  re- 
lation which  the  lenders  of  the  money,  who  were  a  majority  of  the 
board  of  directors  of  the  company,  sustained  to  the  stockholders.^ 
The  court  below  found  that  the  bonds  and  mortgage  were  not  void 
upon  the  ground  that  the  lenders  of  the  money  were  also  the  di- 
rectors of  the  company ;  the  terms  of  the  contract  having  been 
sanctioned  by  the  stockholders ;  the  money  loaned  having  been 
necessary  to  complete  the  company's  building,  and  having  been  aj)- 
plied  to  effect  the  purpose  for  which  it  was  borrowed.     The  United 


gage  or  conveyance  is  taken  to  the  bank 
directly,  for  its  nse,  the  case  is  not  within 
the  jiroliibition  of  ihe  statute.  Tiie  fact 
that  the  title  or  security  may  inure  indi- 
rectly to  the  security  and  beneht  of  the 
bank  will  not  vitiate  the  transaction. "  The 
utmost  that  c:an  he.  said  in  favor  of  this 
view  is  that  th(!  strict  letter  of  the  statute 
is  not  contravened.  There  is,  however, 
quite  a  nuinber  of  ca.ses  in  which  a  similar 
lirinciplc  has  been  held  in  connection  with 
analosious  statutes.  See  Silver  Lake  Bank 
».  North,  4  .Johns.  Ch.  370  ;  Harris  v. 
Kunnels,  12  How.  79  ;  The  Planters' 
Hank  v.  Shari>,  12  Miss.  75;  The  Grand 
tiull'Bank  I'.  .Archer,  1«  Miss.  151  ;  Hock 
Kiver  Hank  v.  Sherwood,  10  Wis.  230  ; 
Mott  c.  The  United  States  Trust  Co.,  19 
Bi.rh.  5()8  ;  Baird  v.  The  Bank  of  Wash- 
ington, U  S.  &  H.  411  ;  Potter  v.  Me- 
1>owp11,  43  Mo.  93  j  Watson  v.  Hawkins, 
80  Mo.  550 ;  Greeu  v.  Hart,  1  Johns.  690; 


Chappel  V.  Allen,  38  Mo.  213;  Shoe- 
maker I'.  National  Bank,  2  Abb.  (U.  S.) 
416  ;  Pittsburg  Car  Works  v.  Bank, 
Thonip.  Nat.  Bk.  ('as.  353  ;  Smith  v. 
Sheelv,  12  Wall.  3<i0  ;  Gold  Mining  Co. 
V.  National  Hk.,  9(5  U.  S.  «  40  ;  Steam 
Naviffition  Co.  v.  Wood,  17  Barb.  380. 

1  llannfacturing  Company  v.  Bradley, 
105  U.  S.  175. 

■^  !<<■  U.  S.  13. 

8  ,See  Mii'hod  v.  Girod,  4  How.  503  ; 
Kochler  v.  Black  River  Falls  Iron  Co.,  2 
Black.  715  ;  Drury  v.  Cro.ss,  7  Wall.  299  ; 
Jack.son  v.  Andeliuj;,  21  Wall.  616  ; 
Stephen  v.  Beall,  22  Wall.  329  ;  Twin 
Lick  Oil  Co.  V.  Marbury,  91  U.  S.  587  ; 
l..uxemburg  R.  R.  Co.  v.  Macquay,  25 
Beav.  686  ;  CumberlamI  Coal  Co.  v.  Sher- 
man, 30  Barb.  553  ;  Railroad  Company  v. 
Poor,  59  Me.  277  ;  San  Diego  i*.  liailroad 
Company,  44  Cal.  106  ;  Goodwin  v.  Rail- 
road &  Canal  Co.,  18  Ohio  St.  182. 


k 


304 


COMMENTARIES  ON   SALES. 


[book  II. 


I  ,'1  '> 


Ht 


u 


States  Supreme  Court  affirmed  the  decree  founded  on  this  decision, 
saying :  "  Transactions  of  the  kind  have  often  occurred,  and  it 
has  never  been  held  that  the  arranijement  ivas  invalid,  where  it  ap- 
peared that  the  stockholders  tvere  properly  consulted^  and  sanctioned 
what  was  done,  either  by  their  votes  or  silence."  * 

The  plaintiff,  having  borrowed  money  from  the  defendants,  gave 
them  stock  as  security  for  the  loan,  subsequently  authorizing  the 
bank  to  sell  the  stock  at  their  discretion.  The  stock  was  then 
much  depressed,  ranging  from  $15  to  $70  per  share.  Three  of  the 
directors,  to  protect  the  firm  from  loss,  purchased  the  stock  at  887 
per  share,  and  received  an  assignment  of  it,  purchasing  it  only  on  the 
condition  that  the  plaintiff  should  be  apprised  of  the  transaction. 
The  stock,  at  $87  per  share,  just  paid  off  the  indebtedness  of  the 
plaintiff  to  the  bank.  The  directors,  after  the  purchase  of  the 
stock,  paid  all  the  assessments  made  on  it,  and  received  such  div- 
idends as  were  declared  on  it.  Some  four  years  after  the  trans- 
action (the  company,  in  the  mean  time,  having  consolidated  its 
stock  with  that  of  another  company,  and  the  stock  having  become 
profitable)  the  plaintiff  filed  a  bill  to  set  aside  the  transaction.  It 
was  found  that  the  plaintiff  had  been  duly  apprised  of  the  pur- 
chase of  the  stock,  by  the  directors,  and,  that  if  he  did  not  ex- 
pressly assent  to  what  had  been  done,  the  most  favorable  construc- 
tion for  him  which  could  be  put  upon  the  evidence  was,  that 
he  was  at  least  silent  when  notified  of  the  proposition,  and  made 
no  objection  to  its  acceptance.  The  court  held,  that  the  facts  pre- 
sented insuperable  obstacles  to  any  decree  in  favor  of  the  i)laintiff. 
If  the  sale  made  by  the  bank  was  originally  impeachable  by  him, 
the  right  to  question  its  validity  was  lost  by  his  acquiosceiico,  as  he 
was  then  in  a  condition,  immediately  after  the  sale,  to  enforce 
such  rights  as  the  law  gave  him,  being,  as  he  was,  fully  apprised  of 
their  nature,  and  of  all  the  material  facts  of  the  case,  ilc  was 
held,  also,  to  have  lost  by  his  laches  any  remedy  which  he  might 
have  had.  So  the  case  failed,  both  on  the  ground  of  ac(puesoence 
and  of  lapse  of  time.^ 

The  director  of  a  company  which  was  in  embarrassed  circum- 
stances, lent  money  to  the  company,  taking  a  note  therefor;  to  se- 
cure which  a  deed  of  trust  of  the  property  and  franchise^,  of  the 


1  Sne  Stark  v.  Colfiii,  105  Mass.  328  ; 
Imperial  Merc.  Cicdit  Assoc  v.  Coleman, 
L.  R.  6  Ch.  558  ;  Troup's  Case,  29  Beav. 
.353  ;  Hoare's  Case,  30  Beav.  225  ;  Smith 
V.  Ijansing,  22  N.  Y.  520  ;  Busby  w.  Finn, 
1  Ohio  St.  409.  See  a  rather  remarkable 
case.  The  North-West  Transportation  Co. 
i;.  Beatty,  L.  R.  12  Ap.  Cas.  589,  stated 
infra,  p.  806  et  seq. 

*  Hayward  v.  National  Bank,  96  U. 


S.  611.  See  Smith  v.  Cliiv,  Anib.  fi45; 
Twin  Lick  Oil  Co.  v.  Marlmrv,  '.a  l'.  .^. 
587  ;  Bu.lg.'r  v.  Badger,  2  WmU.  87 ; 
Marsh  v.  Wliitmore,  21  Wall.  178  ;  Har- 


wood  V.   Railroad  Co.,  47  Widl. 


In 


this  last-named  ease  it  is  said  :  "A  party 
cannot  be  allowed  to  remain  passive,  \iw- 
pared  to  RiHrm  the  transaction  if  the  con- 
cern should  prosper,  or  repudiate  it  if  that 
should  prove  to  his  advantage." 


PART  v.] 


CORPORATIONS. 


805 


company  was  made  to  a  third  party,  with  the  usual  power  of  sale. 
The  property  was  sold  under  the  power  of  sale ;  was  bought  in  by 
tlie  director's  agent  for  the  director,  and  was  conveyed  to  him  soon 
after.  Four  years  after,  the  company  filed  a  bill  to  invalidate  the 
sale.  There  were  charges  of  fraud,  but  the  court  expressed  itself 
satisfied  that  the  defendant  had  loaned  the  money  to  the  corpora- 
tion in  good  faith,  and  honestly,  to  assist  it  in  its  business  in  an 
hour  of  extreme  embarrassment,  and  took  just  such  security  as 
any  other  man  would  have  taken  ;  that,  when  his  money  became 
due,  and  there  was  no  apparent  probability  of  the  company  paying 
it  at  any  time,  the  property  was  sold  by  the  trustee,  and  bought 
in  by  defendant  at  a  fair  and  open  sale,  and  at  a  reasonable  price ; 
that,  in  short,  there  was  neltlier  actual  fraud  nor  oppression ;  no 
advantage  was  taken  of  defendant's  position  as  director,  or  of 
any  matter  known  to  him  at  the  time  of  sale,  affecting  the  value 
of  the  property,  which  was  not  as  well  known  to  others  interested 
as  it  was  to  himself,  and  that  the  only  mode  left  the  defendant  to 
make  his  money  was  by  the  sale  and  purchase.  The  court  ac- 
cordingly hcld,^  that  while  it  is  a  doctrine  founded  on  the  strictest 
morality  ^  that  a  director  of  a  joint-stock  corporation  occupies  one 
of  those  fiduciary  relations  where  his  dealings  with  the  subject- 
matter  of  his  trust  or  agency,  and  with  the  beneficiary  or  party 
whose  interest  is  confided  to  his  care,  are  viewed  with  jealousy 
by  the  courts,  and  may  be  set  aside  on  slight  grounds  ;  and  that, 
while  it  was  true  that  the  defendant,  as  a  director  of  the  corpora- 
tion, was  bound  by  all  those  rules  of  conscientious  fairness  which 
courts  of  equity  have  imposed  as  the  guides  for  dealing  in  such 
cases ;  it  could  not  be  maintained  that  any  rule  forbids  one  direc- 
tor among  several  from  loaning  money  to  the  corporation,  when 
the  money  is  needed,  and  the  transaction  is  open,  and  otherwise 
free  from  blame. 

A  doctrine  to  the  contrary  of  this,  while  it  would  afford  little 
protection  to  the  corporation  against  actual  fraud  or  oppression, 
would  deprive  it  of  the  aid  of  those  most  interested  in  giving  aid 
judiciously,  and  best  qualified  to  judge  of  the  necessity  of  that 
aid,  and  of  the  extent  to  which  it  might  safely  be  given.  Tlie 
decree  of  the  Supreme  Court  of  the  District  of  Columbia,  sustain- 
ing the  transaction,  was  affirmed  by  the  Supreme  Court  of  the 
United  States.  The  court  also  held  that  proceedings  to  set  aside 
such  a  sale  and  purchase  should  be  promptly  taken.  Those  who 
seek  to  set  it  aside  cannot  delay,  in  order  to  speculate  upon 

'  Twin  Lick  Oil  Company  v.  Mar-  Wall.  299  ;  Luxemburg  R.  R.  Co.  v.  Ma- 
onry,  91  U.  s.  r,S7.  quay,  25  Beav.  586  ;  The  Cuniberlnnd  Co. 

'^  Koeliler  V.   Black  River  Falls  Iron     v.  Sherman,  30  Barb.  553 ;  Hoffman  Co.  v. 
Co.  2  Hlack,  715  ;   Drury  v.   Cross,   7     Cumberland  Co.,  16  Md.  466. 
VOL.  I.  20 


II 


K 


m 


1 


.1 


■  I'; 


306 


COMMLNTARIES  QN  SALES. 


[book  II. 


the  chances  which  the  future  may  give  them  of  deciding  profit- 
ably to  themselves  whether  they  will  abide  by  the  bargain  or 
rescind  it.  In  order  to  exercise  the  right  of  rescinding  or  avoid- 
ing a  contract  or  transaction,  the  necessary  steps  must  be  taken 
as  soon  as  it  can  be  reasonably  done,  after  the  party  witli 
whom  that  right  is  optional  is  aware  of  the  facts  which  give  him 
that  option .1 

The  North- West  Transportation  Co.  v.  Beatty,^  is  an  extremclv 
simple  case.  The  singular  feature  about  it  is  the  almost  ridicu- 
lous antagonism  of  the  Canadian  courts,  in  their  various  decisions 
in  the  case,  over  the  simple  question  which  it  involves.  The  case 
starts  with  the  admission  all  around  that  it  is  one  entirely  free  of 
imputation  of  fraud  or  collusion,  and  that  all  suspicion  of  unfair 
dealing  must  be  discarded.  So  the  simple  question  resolves  itself 
into  this  :  Where  a  voidable  contract,  fair  in  its  terms,  and  within 
the  powers  of  the  company,  had  been  entered  into  by  its  directors 
with  one  of  their  rumber  as  sole  vendor,  has  such  vendor  the 
right  to  exercise  his  voting  power  as  a  shareholder  in  a  general 
meeting  of  shareholders  to  ratify  such  contract ;  and  can  his 
doing  so  be  deemed  oppressive  by  reason  solely  of  his  individually 
possessing  a  large  number  of  votes,  acquired  in  a  manner  author- 
ized by  the  constitution  of  the  company,  and  which,  with  the  votes 


1  Badger  v.  Badger,  2  Wall.  87  ;  Har- 
wood  V.  Railroad  Co.,  17  Wall.  78 ;  Marsh 
».  Whitman,  21  Wall.  178  ;  Vigers  v.  Pike, 
8  CI.  &  F.  650 ;  Wentworth  v.  Boyd,  32 
Beav.  467  ;  FoUansbee  v.  Kilbreth,  17  111. 
522  ;  Bliss  i;.  Ednionsou,  8  De  G.  M.  &  G. 
787 ;  Prendergast  v.  Turton,  1  You.  & 
Coll.  Ch.  98.  In  Twin  Lick  Oil  Co.  v.  Mar- 
bury,  91  U.S.  587,  593,  the  court  say: "  The 
officers,  and  probably  all  the  stockholders, 
who  were  not  numerous,  knew  of  the  sale 
AS  soon  as  made.  As  there  was  no  actual 
fraud,  they  knew  all  the  facta  on  which 
their  right  to  avoid  the  contract  depended. 
They  not  only  refused  to  join  the  defendant 
in  the  purchase  when  that  jjrivilege  was 
tendered  them,  but  they  generally  refused 
to  pay  assessments  on  their  shares  already 
made,  which  might  have  paid  the  debt. 
The  defendant  then  had  a  survey  made  of 
the  ground  leased  to  the  corporation,  the 
lease  being  the  main  thing  he  had  acquired 
by  the  sale.  When  the  lines  were  ex- 
tended, the  lease  was  found  to  embrace  a 
well,  then  profitably  worked  by  another 
company.  Of  this  piece  of  good  luck  he 
availed  Iiimself,  and  by  suit  and  compro- 
mise he  obtained  possession  of  that  well. 
He  put  more  of  his  money  into  it,  and 
changed  what  had  been  a  disastrous  specu- 
lation by  the  company  into  a  profitable 
business.    With  full  knowledge  of  all  these 


facts  no  action  was  taken  until  nenrly  four 
years  after  the  sale  ;  and  not,  until  all  the 
Iinzard  was  over,  and  the  defeiulant's  skill, 
energy,  and  money  had  made  his  |mrchase 
profitable,  was  any  claim  or  assi'ition  of 
right  in  the  property  made  by  the  ooriwra- 
tion,  or  by  the  stockholders."  On  this 
ground,  also,  the  decree  of  the  court  below 
was  affirmed. 

A.,  who  had  covenanted  with  the  super- 
visors of  a  county  to  construct  a  nuol, 
subject  to  the  approval  of  a  superin- 
tendent, who  was  autho.'izod  to  stop  the 
work  if  it  and  the  materials  fuiiiisiuMldid 
not  coniorm  to  certain  plans  and  specifica- 
tions, entered  into  a  contract  witli  B.  to 
manufacture  and  erect  in  its  propfr  |iositinn 
all  the  wrought-iron  work  for  tlie  gaol, 
according  to  such  plans  and  sjx'iitii'ations, 
but  made  no  provision  as  to  the  approval 
of  the  superintendent.  The  court  luldthat 
B.  was  entitled  to  recover  on  his  contract 
the  value  of  the  work  done  and  materials 
furnished  by  him,  if  he  substantially  com- 
plied with  the  plans  and  specifications,  or 
if  a  strict  compliance  therewith  hail  been 
waived  by  A.,  although  the  supervisoi's, 
in  the  exercise  of  their  power  umlor  their 
contract  with  A.,  condemned  li.'s  work, 
and  required  A.  to  replace  a  portion  of  it- 
WoodruflT  V.  Hough,  91  U.  8.  596. 

3  12  Ap.  Gas.  689. 


PART  v.] 


CORPORATIONS. 


807 


of  those  voting  with  him,  constituted  a  majority  of  the  votes  of 
tlie  shareholders?  The  Ontario  Chancery  Division*  held  (a.  d. 
1884),  that  without  any  regard  "  to  the  fairnesss  or  unfairness  of 
the  transaction,"  the  shareholder,  because  he  was  a  vendor,  had  no 
rifrht  to  vote  on  the  question  at  the  meeting  of  the  shareholders. 
The  Ontario  Court  of  Appeal  (a.  d.  1885)  unanimously  reversed 
this  holding,  on  the  ground,  in  effect,  that  the  case  being  entirely 
free  from  imputation  of  fraud  or  collusion,  there  was  no  principle 
of  equity  to  prevent  the  vendor  exercising  his  rights  as  a  share- 
holder and  voting  as  a  shareholder  in  favor  of   the  purchase, 
although  he  had  a  personal  interest  in  such  purchase.    The  Su- 
premo Court  of  Canada,  on  appeal  (a.  d.  188G),  with  singular  and 
unaccustomed  unanimity,  but  on  the  most  varied  and  inconsistent 
grounds,  —  scarcely  any  two  of  the  judges  holding  the  same  view 
in  the  matter, —  unanimously  reversed  the  decision  of  the  Ontario 
Court  of  Appeal,  and  affirmed  the  decree  of  the  Chancery  Divi- 
sion.   On  appeal  to  the  Privy  Council  (a.  d.  1887),  the  decision 
of  the  Supreme  Court  of  Canada  was  reversed  and  the  decision  of 
the  Ontario  Court  of  Appeal  was  sustained.     Sir  Richard  Bag- 
gallay,  in  delivering  the  judgment  of  the  Judicial  Committee,  thus 
referred  to  the  well-known  principles  governing  the  case :  "  The 
general  principles  applicable  to  cases  of  this  kind  are  well  estab- 
lished.   Unless  some  provision  to  the  contrary  is  to  be  found  in 
the  charter  or  other  instrument  by  which  the  company  is  incor- 
porated, the  resolution  of   a  majority  of  the  shareholders,  duly 
convened,  upon  any  question  with  which  the  company  is  legally 
competent  to  deal,  is  binding  upon  the  minority,  and  consequently 
upon  the  company,  and  every  shareholder  has  a  perfect  right  to 
vote  upon  any  such  question,  although  he  may  have  a  personal  in- 
terest in  the  subject-matter  opposed  to,  or  different  from,  the  gen- 
eral or  particular  interests  of  the  company.     On  the  other  hand, 
a  director  of  a  company  is  precluded  from  dealing,  on  behalf  of 
the  company,  with  him?"'^-  and  from  entering  into  engagements 
in  which  lie  has  a  personal  interest  conflicting,  or  which  possibly 
mtiy  conflict,  with  the  interests  of  those  whom  he  is  bound  by 
fiduciary  duty  to  protect;   and  this  rule  is  as  applicable  to  the 
case  of  one  of  several  directors  as  to  a  managing  or.  sole  director. 
Any  such  dealing  Or  engagement  may,  however,  be  affirmed  or 
adopted  by  the  company,  provided  such  affirmance  or  adoption  is 
not  brought  about  by  unfair  or  improper  means,  and  is  not  illegal 
or  fraudulent  or  oppressive  towards  those  shareholders  who  op- 
pose  it.  .  .  .  It  is  clear  upon  the  authorities  that  the  contract 
entered  into  by  the  directors  could  not  have  been  enforced  against 

1  6  Ontario  R.  300. 


Bts 


f  J  v 


i" » 


■    iv  f- 


308 


COMMENTARIES  ON  SALES. 


[book  II. 


I 

f 
I 


¥  i1 


the  company  at  the  instance  of  the  vendor,  but  it  is  equally  clear 
that  it  was  within  the  competency  of  the  shareholders  at  their 
meeting  to  adopt  or  reject  it."  ^ 

If  an  agent  employed  by  a  principal  to  purchase  property  for 
him  sells  to  the  principal  property  of  his  own,  which  he  acquired 
before  the  agency  existed,  concealing  from  the  principal  the  fact 
that  it  is  his  own  property,  the  principal  has  a  right,  on  discover- 
ing the  real  facts,  to  rescind  the  contract.  But  if  he  declines  to 
rescind,  or,  with  a  knowledge  of  the  facts,  so  acts  with  the  prop- 
erty as  to  render  rescission  impossible,  the  principal  is  not  enti- 
tled to  call  on  the  agent  to  account  for  the  profit  which  he  has 
made  by  the  sale,  i.  e.,  either  the  difference  between  the  price 
which  he  himself  gave  for  the  property  and  the  price  whicli  he 


1  North  West  Transportation  Co.  v. 
Beatty,  L.  R.  12  Ap.  L'as.  at  p.  593  et 
seq. 

See  Hotel  Co.  v.  Wade,  97  U.  S,  13 ; 
Twin  Lick  Oil  Company,  v.  Marbury, 
91  U.  S.  587,  and  other  cases,  supra,  in 
this  Part.  And  see  Mason  v.  Harris,  11 
Ch.  Div.  97 ;  Smith  v.  Anderson,  11  Ch. 
Div.  274  ;  Davidson  v.  Tulloch,  3  Macq. 
783  ;  Hiiyle  v.  Plattsburg  &  Montreal 
R.  11.  Co.,  54  N.  Y.  314  ;  South  Baptist 
Soc.  of  Albany  v.  Clapp,  18  Barb.  35  ; 
The  Board  of  Commissioners,  &c.  v.  Rey- 
nolds, 44  Ind.  409  ;  Foster  v.  Tlie  Oxford, 
&c.  R.  Co.,  13  C.  B,  200  ;  Cobb  v.  Good- 
hue, 11  Paige,  113.  In  Chesterfield,  &c. 
Colliery  Co.  v.  Black,  37  Ij.  T.  N.  s.  740, 
Bacon,  V.  C,  said :  "  That  the  directors 
of  this  company  were  in  a  fiduciary  rela- 
tion is  plain  beyond  doubt.  If,  therefore, 
the  sale,  being  made  by  two  directors  of 
the  company  to  the  company,  were  open  to 
any  suspicions  of  any  of  the  misconduct 
which  lias  happened  in  many  such  like 
ca.ses,  of  course  it  could  not  stand.  On 
the  other  hand,  if  that  transaction  was  in 
itself  fair  ;  if  there  was  no  conduct  on  the 
part  of  the  trustees  which  could  mislead 
the  cestui  que  trust;  if  every  disclosure 
whicli  the  nature  of  the  case  required  was 
made,  then  I  know  of  no  reniton  tvhif  the 
bargain  is  not  as  valid  as  if  it  had  taken 
place  between  strangers."  See  further  Me- 
Dougall  V.  Gardiner,  1  Ch.  Div.  21  ; 
Gregory  v.  Patchett,  33  Beav.  605  ;  Ex 
parte  Moss,  14  Ch.  Div.  394  ;  Pender  v. 
Lushin<;ton,  6  Ch.  Div.  70  ;  East  Pant 
du  United  Lead  Co.  v.  Mert-yweather,  2 
H.  &  M.  254  ;  lie  Haven  GoldMg.  Co., 20 
Ch  Div.  151  ;  Mozley  v.  Alston,  1  Ph. 
790  ;  Foss  r.  Harbottle,  2  Hare,  461  ; 
Gray  v.  Lewis,  L.  U.  8  Ch.  1035,  1051  ; 
M;'nier  u.  Hooper's  Telegi-aph  Works,  L. 
R.  9  Ch.  350  ;  Lord  v.  Governor  &  Co.  of 
Copper  Miners,  2  Ph.  740  ;  Stupert  v. 
Airowsmith,  3  Sm.  &  G.  176 ;  Kent  v. 


Jackson,  2  De  G.  M.  &  G.  49  ;  The  Lon- 
don Merc.  Discount  Co.,  L.  R.  1  K(i.  ill ; 
lie  Hanen  Gold  Mining  Co.,  20  Ch.  Div. 
151.  But  it  has  been  repeatedly  laid 
down  that  thorough  good  faith  is  ie([uirfil 
on  the.  part  of  directors  in  their  tnuiMic- 
tions  r>'ith  their  companies,  and  it  is  thdr 
duty  to  use  their  best  e.xertions  for  the 
benefit  of  those  whose  interests  aie  com- 
mitted to  their  charge,  and  they  are  bouml 
to  disregard  their  own  private  iiiteiesU 
whenever  a  regard  to  them  conlliets  with 
the  proper  discharge  of  such  (hity.  Im- 
perial Merc.  Credit  Ass.  v.  Coli'iiiaii,  L  R. 
6  Ch.  563,  n.,  per  Malins,  V.  C. ;  AVy-flite 
James,  8  Ves.  345  ;  F'awcettw.  Whitchouse, 
1  Rus.  &  M.  132;  Hichens  «;.  ConRivve,  1 
Rus.  &  M.  150,  n.;  Benson  r.  Ilciitliorii,  1 
Y.  &  C.  Ch.  326  ;  Beck  v.  Kantcrwicz,  3 
K.  &  J.  230  ;  Aberdeen  By.  Co.  v.  Blaikie, 
1  Macq.  461  ;  Bank  of  London  v.  Tvinll, 
27  Beav.  273  ;  10  H.  L.Cas.  26  ;  Cliaiiliii 
V.  Young,  33  Beav.  414. 

Directors  are  under  an  obligation  to 
the  shareholders  at  large  to  use  1  heir  Iwst 
exertions  in  all  matters  which  relnte  to 
the  affairs  of  the  company,  for  tlio  welfare 
of  the  concern  thus  entrusted  to  tluir 
charge.  And,  without  any  speeiiil  pro- 
vision for  tlie  purpose,  it  is  I'y  law  an 
implied  and  inherent  term  in  tin'  eiitfiiri'- 
ment,  that  they  should  not  make  any 
other  profit  to  themselves  of  thattiusto' 
employment  than  tiieir  remuiieiailim  m 
directors,  and  that  they  shall  not  aei|uire 
to  themselves,  while  they  remain  diieetcirs, 
an  interest  adverse  to  their  duty,  lienson 
V.  Heathorn,  1  Y.  &  C.  Ch.  326,  311.  i^ce 
Gregory  v.  Patchett,  33  Beav.  .')9.i ;  lie- 
man  V.  Ruflford,  1  Sim.  N.  a.  550 :  llenrv 
V.  The  Great  Northern  Rv.  Co..  4  K.  &•'• 
1 ;  Foss  V.  Harbottle,  2  Hare,  4(!1 ;  M»zley 
V.  Aistv^n,  1  Ph.  790  ;  Norway  v.  l!"'"';. 
19  Ves.  144  ;  Prendergnst  v.  Tmtnii,  1  ^. 
&  C.  Ch.  98  ;  Hoare's  Case,  30  Beav.  225. 


PAUT  v.] 


CORPORATIONS. 


809 


obtained  from  the  principal,  or  the  difference  between  the  latter 
price  and  the  market  value  of  the  property  at  the  time  of  the  sale 
to  the  principal.^  The  facts  in  this  case  were,  that,  in  1871,  cer- 
tain coal  areas  were  purchased  for  £5,500  by  six  persons,  of  whom 
F.  was  one,  and  were  vested  in  G,  as  a  trustee  for  them  without 
disclosing  the  trust.  In  1873  a  company  was  formed  for  the  pur- 
pose of  purchasing  these  areas  and  other  property.  F.  was  one 
of  tlic  directors,  and  as  such  he  concurred  in  effecting  a  pur- 
chase by  the  company  from  G.,  for  £12,000  cash,  and  £30,000  in 
fully  paid-up  sliaes,  without  disclosing  the  fact  that  F.  was  a  part- 
owner.  In  1875  the  company  was  ordered  to  be  wound  up.  In 
1878  a  meeting  of  contributorics  was  called,  at  which  two  rival 
schemes  were  brought  forward,  one  —  a  knowledge  of  the  facts 
having,  in  the  mean  time,  been  obtained  —  for  repudiating  the 
purchase  of  the  coal  areas ;  the  other  for  adopting  the  purchase 
and  selling  the  property.  The  latter  scheme  was  adopted,  and 
was  confirmed  by  the  court.  The  liquidator  accordingly  sold  the 
property,  but  at  a  heavy  loss.  A  contributory  then  took  out  a 
summons,  under  the  English  Companies  Act,  to  make  F.  liable 
for  misfeasance  as  a  director  in  allowing  the  company's  seal  to 
be  affixed  to  the  agreement  for  purchase  by  the  company.  Pear- 
son, J.,  dismissed  the  summons.  On  appeal,  the  decision  was 
sustained,^  by  Cotton  and  Fry,  L.  JJ.,  Bowen,  L.  J.  dissenting.  It 
was  conceded  that  the  right  to  apply  under  the  Companies  Act 
created  no  new  rights,  but  only  gave  a  summary  mode  of  enfor- 
cing rights  which  existed  independently  of  that  act.^ 


1  In  re  Cape  Breton  Gp.,  26  Ch.  D. 
221. 

2  n>i(l,  2<>  Ch.  D.  795. 

'  Tlic  (lissentiii<5  judgnient  of  Bowen, 
L.  ,1.,  is  vi'iy  alily  roasoneil ;  but,  on  the 
facts  of  the  ease  to  which  th<*  law  is  applica* 
Me,  it  is,  we  tliiiik,  conclusively  answered 
by  Fry.  L.  J.  As  the  |ioint  is  nn  iinpor- 
tint  one,  ami  covers  (|uestions  in  principle 
in  ('(luiicction  with  the  law  of  sales  liable 
at  any  time  to  arise,  ami  as  the  ca.se  is 
in  some  respects  one  of  first  instance,  we 
quote  at  some  lenjjth  from  the  rea.soning 
of  Fry,  ii.  J.  He  says  :  "This  case  is  not 
the  case  of  an  af;ent  who,  after  he  has 
acct'ptcil  tlie  aj^eiicy,  has  acquired  ))rop- 
iTty,  tlie  purcha.se  of  which  was  within 
tlit>  sco]i('  of  his  agency,  and  then  has  re- 
sold that  property  to  his  princii>al  at  a 
larger  smn.  in  which  case  it  is  obvious 
tlutt  the  principal  may  say  that  the  orig- 
iiiiil  purchase  by  the  agent  at  a  smaller 
price  was  a  )mrchase  on  behalf  of  the  prin. 
filial.  Nor  is  this  the  case  of  a  man  who 
accoptp  an  agency  to  buy  some  article  in 
tlie  market,  and  then  sells  to  his  principal 


his  own  goods,  in  which  case  it  may  be 
that  the  agent  is  liable  for  not  performing 
his  agency  by  ]>urchasiMg  in  tlie  market, 
8up]>osing  it  was  possible  for  him  so  to  do. 
This  case  is  distinguished  from  that  by 
there  being  a  direction  to  buy  a  specifin 
property.  Nor,  again,  is  this  the  case  of 
an  agent  who,  by  any  subse<iuent  acts  of 
his  own,  has  rendered  the  rescission  of 
tlie  contract  by  his  prini^ipal  im)>ossiblo. 
I  express  no  ujiinion  whether  or  no  in 
that  case  the  jirincipal  would  have  a  right 
against  the  agent,  notwithstanding  tho 
non -rescission  of  the  contract.  This  is  a 
case  in  which  the  agent,  belore  accepting 
the  agency,  had  an  intej-est  in  the  pro|i- 
erty,  and  during  the  agency  sold  that 
property  to  his  principal  without  di.scios- 
ing  his  interest.  Tiiat  in  such  a  case 
the  principal  would  have  a  right  to  re- 
scind there  can  be  no  doubt.  The  option 
which  the  principal  had  has  in  this  case 
been  exercised  by  confirming  the  contract 
with  Knowledge  of  the  facts ;  and  the 
question  is  whether,  after  that  affirmance, 
the  agent  is  liable  iu  any  sum  to  his  prin- 


^  w     '     ill 


V.sk 


H 


810 


COMMENTARIES  ON  SALES. 


[book  II. 


The  case  was  appealed  to  the  House  of  Lords,*  and  the  deci- 
sion of  the  courts  below  was  affirmed,  but  on  entirely  different 
grounds  from  those  taken  by  either  Pearson,  J.,"  or  by  the  Court 
of  Appeal.^  The  House  of  Lords  simply  held  that  the  appellant 
had  failed  to  make  out  his  case,  the  evidence  adduced  by  him  not 
showing  (the  burden  of  proof  resting  on  him),  either  that  the 
director  had  not  disclosed  his  interest  or  that  the  purchase  price 
was  above  the  value.  The  case  was  fully  dealt  with  in  all  its 
different  aspects.  As  the  respondent  was  interested  in  the  ])io|h 
erty  bought  by  the  company  of  which  he  was  a  director,  the  House 
looked  upon  the  matter  as  one  of  no  doubt,  that  he  was  bound  to 
disclose  that  interest  to  the  other  directors  of  the  company  who 
were  entering  into  a  contract  for  the  purchase  of  the  property, 
and  that  his  failure  to  make  that  disclosure  would  entitle  the 
company,  upon  discovering  hi?  interest,  to  rescind  the  sale.    And 


cipal.  There  is  no  authority  which  deter- 
mines this  point,  and  it  therefore  is  to  be 
determined  upon  principle.  Now,  not- 
withstanding tlie  very  powerful  criticisms 
of  Ijord  Justice  Bowen  on  the  judgment 
of  Mr.  Justice  Pearson,  I  think  thut.judg- 
niont  right.  I  think  that  the  case  is  one 
in  which  the  adoption  of  the  contract  by 
the  principal  puts  an  end,  and  ought  to 
put  an  end,  to  any  further  rights  against 
the  agent.  It  appears  to  nie  that  to 
allow  the  principal  to  affirm  the  con- 
tract, and  after  the  affirmance  to  claim 
not  only  to  retain  the  pro|)erty,  but  to  get 
the  dillerence  between  the  price  at  which 
it  was  bouglit  and  some  other  price,  is, 
however  you  may  state  it,  and  however 
you  may  turn  the  proposition  about,  to 
enable  the  principal,  against  the  will  of 
his  agent,  to  enter  into  a  new  contract 
with  the  agent, — a  thing  which  is  plainly 
impossible,  or  else  it  is  an  attempt  on  the 
part  of  the  principal  to  confiscate  the  prop- 
erty of  his  agent  on  some  ground  which  I 
confess  I  do  not  understand.  It  is  said 
that,  notwithstanding  the  ratification  of 
the  contract,  the  princii)al  may  claim 
some  profits  from  the  agent  because  those 
profits  were  made  surreptitiously  or  clan- 
destinely. It  appears  to  me  that  the 
answer  to  that  is  this,  that  whatever  the 
profits  are,  and  however  they  are  to  be 
measured,  those  profits  result,  not  from 
the  original  contract,  but  from  the  affirm- 
ance of  the  contract  by  the  principal,  and 
that,  therefore,  the  profits  which  are  made 
by  the  agent  are  neither  clandestine  nor 
surreptitious.  I  can  conceive  two  possible 
claims  being  made.  The  one  would  be  on 
the  view  that  the  profits  were  the  differ- 
ence between  the  jmrchasing  and  the  sell- 
ing price  in  the  hands  of  the  agent ;  but. 


as  has  already  been  observed  by  LorJ  Jus- 
tice Bowen,  that  cannot  possibly  be  the 
measure  of  the  claim  of  the  priuc'ipul,  be- 
cause at  the  date  when  the  agiut  pur- 
chased he  was  not  the  agent  of  the  prin- 
cipal, and  the  principal  therefoie  had  no 
right  to  go  back  to  tliat  date  and  lix  it  u 
the  time  at  which  he  acquired  a  right  to 
retain  the  property  at  the  price  paid  lor  it 
by  the  agent.  The  other  claim  would  be 
on  the  view  that  the  profits  were  tiie  dif- 
fer 'ice  between  the  real  value,  or  the 
ma  cet  value,  if  a  market  value  exist, 
and  the  actual  price  at  which  tiie  prop- 
erty was  sold  by  the  agent  to  the  jirin- 
cipal.  I  think  the  principal  cannot  claim 
that  difi'erencft;  because  it  appeals  to  me 
that  in  such  a  case  as  this,  wlu-re  the 
principal  had  no  right  to  claim  the  prop- 
erty as  having  been  purchased  on  his  be- 
half at  a  smaller  price,  the  voluntary 
ratification  of  the  purchase  by  the  prin- 
cipal is  equivalent  for  this  purpose  to  a 
new  sale  by  the  agent  to  tlie  primijial 
after  the  relation  between  tliem  Lad 
ceased,  and  that  it  is  only  in  coiise(]UPnee 
of  that  ratification  or  adoption  that  any 

1)roHts  remain  in  the  hands  of  the  agent, 
n  other  words,  therefore,  I  tliiiik  it  is 
not  a  case  of  profits  made  clandestinely  or 
surreptitiously,  because  those  protits  have 
not  arisen  from  the  original  tiausaction 
alone,  but  from  the  adoption  of  it  l>y  the 
principal.  I  think,  therefore,  that  the  de- 
cision of  Mr.  Justice  Pearson  was  right, 
and  that  this  appeal  must  be  dismissed. 
In  re  Cape  Breton  Co.,  26  Ch.  Div.  795, 
811. 

1  Cavendish  Bentiuck  o.  Fenn,  12  App- 
Cas.  652. 

i  26  Ch.  Div.  221. 
»  29  Ch.  Div.  795. 


PART  v.] 


CORPORATIONS. 


811 


although  rescission  had  become  impossible,  the  House  of  Lords 
were  clearly  of  the  opinion  that  if  it  had  been  shown  that  there 
waa  a  secret  profit,  improperly  made  by  the  respondent,  the  appel- 
lant would  have  had  a  remedy,  under  the  165th  section  of  tlie 
Companies  Act,  for  the  Iocs  which  had  been  sustained  by  the  al- 
leged misfeasance  of  the  respondent  in  failing  to  make  the  dis- 
closure of  the  facts  as  to  his  position  in  connection  with  the 
property  bought  by  the  company .^ 

I  do  not  think  it  is  necessary  to  come  to 
any  absolute  determination  upon  that 
I)oint,  bucause  it  is  of  tlie  very  essence  of 
8uch  a  case  as  this  to  show  tliat  the  price 
at  which  the  property  was  sold  to  the 
company  was  in  excess  of  what  has  been 
called  the  real  i)riee,  or  tlie  true  value. 
Now,  what  evidence  is  there  here  upon 
which  your  lordships  would  be  entitled  to 
act,  that  the  proiH-rty  in  question,  when 
purchased  by  the  company,  was  sold  to 
them  at  a  price  in  excess  of  the  real  value, 
or  the  market  value,  in  whichever  way 
you  put  it  ?  I  admit  that  there  may  be 
considerable  ground  for  susjiicion  that  the 
price  was  in  excess  of  it.  But  obviously 
for  such  a  case  as  the  appellant  seeks  to 
make  out  here  much  more  than  that  is 
necessary.  It  is  of  the  very  essence  of  the 
case,  which  rests  upon  his  jjroving  what 
he  claims,  namely,  a  secret  profit  improp- 
erly made,  that  he  should  prove  that  there 
has  been  that  excess  which  he  alleges." 
And  on  a  full  examination  of  the  facts  the 
conclusion  was  reached  that  there  was  not 
the  slightest  evidence  to  show  that  din- 
closure  was  jiot  made,  or  that  the  other 
directors  were  not  well  aware  of  the  re- 
spondent's position.  All  of  the  other 
lords  were  of  the  same  opinion,  both  as 
to  the  failure  of  the  evidence  and  aa  to 
the  sufficiency  of  the  remedy  against  the 
respondent,  had  the  facts  sustained  the 
claim  made,  and  had  the  claim  been  made 
by  one  entitled  to  tlie  remedy.  Cavendish 
Bentinck  v.  Fenn,  12  App.  (.'as.  652. 

liord  Blackburn,  in  Mcl'herson  v. 
Watt,  3  Ajip.  Cas.  254,  lays  down  the 
rule  applicable  to  these  cases  thus  :  "The 
mere  fact,  therefore,  that  he  does  not  dis- 
close that  he  is  a  purchaser,  or  that  he  is 
interested  in  the  purchase,  in  cases  where 
the  client  might  say,  '  It  was  your  duty 
to  give  me  such  advice,'  gives  the  client  a 
right,  upon  discovering  the  fact  that  the 
purchaser  was,  in  whole  or  in  part,  the 
attorney  whose  duty  it  was  to  give  him 
advice,  to  say,  '  I  have  an  option  either  to 
set  the  purchase  aside  if  I  please,  or  to 
let  it  stand  if  I  prefer  to  do  so.'  He  is 
entitled  to  say,  •  This  may  be  a  very  fair 
and  proper  bargain,  but  I  do  not  choose 
to  let  it  stand.' "     But  the  relief  which 


1  Lord  Herschell  thus  dealt  with  the 
appellant's  material  contentions  in  the 
matter:  "First,  it  is  said  to  be  a  case  of 
A  secret  profit  made  by  an  agent,  which 
profit  he  is  therefore  bound  to  hand  over 
to  Ills  principal.  Of  course  it  cannot  be 
doulited  that  the  respondent,  as  a  director 
of  the  company,  was  in  the  iwsition  of  an 
agent ;  and  undoubtedly  if  he  filled  any 
fiduciaiy  jmsition  towards  them  at  the 
time  when  he  purchased  this  property,  he 
would  be  bound  to  pay  to  the  comjiany 
the  diiroreiice  between  the  price  at  which 
he  purchased  it  and  the  price  at  which  it 
was  sold  to  the  company.  But  here  it  is 
beyond  (juestion  that  at  the  time  when 
the  purchase  was  made,  Mr.  Fenn  and  his 
coudventurers  were  none  of  them  in  any 
sort  of  fiduciary  relation  to  the  company, 
the  existence  of  which  at  that  time  was 
not  even  contemplated.  Again,  there 
]irobably  is  iittle  doubt  that  if  an  agent 
of  a  company  is  employed  by  that  com- 
pany to  make  a  purchase  for  them  in  the 
market  of  goods  of  any  description,  and  if 
instead  of  making  that  purchase  in  the 
market  at  the  mai-ket  price  he  sells  to  his 
com|iaiiy  goods  of  the  required  description 
which  he  happens  to  own,  at  a  price  in 
excess  of  the  market  price,  he  can  be  made 
to  ]iay  to  the  company  that  excess,  so  as 
to  leave  their  purchase,  as  it  ought  to  have 
been, at  the  market  price,  according  to  the 
obli  ••tioiis  which  he  is  under  to  them. 
E,ii,  ill  the  jiresent  case,  the  purchase  that 
was  made  was  a  purchase  of  a  specific 
propcity  ;  it  was  that  specific  property 
alone  which  the  agent,  the  director,  was 
authorized  to  purchase.  It  was  not  left 
to  him  to  jiurchase,  at  the  best  price  at 
whioli  they  could  be  obtained,  goods  or 
land  (if  a  particular  description  ;  but  his 
agency,  so  far  as  it  existed  at  all,  was  an 
agency  to  ]>urchase  this  specific  property 
in  which  it  is  proved  he  had  an  interest. 
Now,  1  am  by  no  means  prepared  to  say 
that  the  argument  of  the  appellant  is  well 
founded  that  such  a  case  as  this  is  a  par- 
allel case  to  the  class  of  cases  to  which  I 
have  alluded,  where  an  agent  employed  to 
go  into  the  market  and  buy  at  the  market 
price  sells  his  own  goods  to  the  company 
at  something  above  the  market  price.   But 


V 

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812 


COMMENTABIES  ON  SALES. 


[book  II. 


The  followin);  are  propositions  relating  to  directors  of  a  com- 
pany, as  laid  down  by  Lord  Romilly,  M.  II. :  (1)  Directors  of  a 
company  issuing  a  prospectus  are  bound  to  disclose  every  mate- 
rial fact ;  and,  if  they  do  not,  they  will  be  held  liable  to  indemnify 
any  person  who  takes  shares  from  the  company  on  the  fuitli  of 
the  prospectus,  against  any  loss  which  may  be  occasioned  to  him 
by  reason  of  such  concealment,  even  although  they  may  havi;  be- 
lieved that  the  conccalmont  will  be  bencticial  to  the  persons  in- 
duced to  take  the  shares.  (2)  A  fact  which,  if  disclosed,  wuuld 
have  so  discredited  the  company  as  to  prevent  its  formation,  is  a 
material  fact  within  the  meaning  of  tlie  foregoing  proposition. 
(3)  The  estate  of  a  deceased  director  is  liable  in  equity  in  respect 
of  such  indemnity,  to  the  same  extent  as  tlie  director  would  liuve 
been  if  living.  (4)  A  transferee  of  shares  has  no  greater  right 
to  be  indemnified  by  the  directors  in  respect  of  their  misconduct 
in  issuing  a  prospectus  than  the  original  allottee  would  have  liad; 


the  court  will  give  is  to  rescind  the  con- 
tract, if  the  parties  are  willing  to  rescind 
it ;  but  the  court  will  not,  because  the 
agent  who  sold  to  his  principtil,  without 
informing  him  that  he  was  roully  the 
seller,  was  in  error  in  so  doin^,  compel 
him  to  pay  back  to  his  principul  the  dif- 
ference between  the  price  at  which  he 
bought  the  [iroperty,  it  may  be  years  be- 
fore, and  the  price  which  he  obtained  for 
it  from  his  principal.  Nor  will  tiie  court 
ascertain  what  was  the  market  ]>rice  of 
the  property  at  the  time  of  the  sale  to  the 
principal,  and  say  that  the  principal  is 
entitled  to  recover  back  from  his  agent 
the  ditferenue  between  the  sum  which  he 
paid  him  and  that  which  the  court  ascer- 
tains to  have  been  the  market  price  at  the 
time.  la  re  Cape  Breton  C'O.,  •16  Cii.  Div. 
221,  259,  The  jirinciplf  would  be  that 
the  com[)any  were  at  lil)erty  to  treat  the 
sellers  as  trustees  of  the  property  for  the 
company,  and,  treating  them  as  trustees, 
to  allow  them  only  what  they  paid  for  the 
property^  and,  if  they  got  anything  else 
out  of  t.he  cotters  of  the  company,  to  make 
them  account  for  that.  But  in  In  re  Am- 
brose Lake  Tin  &  Copper  Manuf.  Co., 
14  Ch.  Div.  390,  it  was  held  that  neither 
on  principle  nor  on  authority  can  that  he 
maintained,  unless,  at  the  time  when  the 
so-called  vendor  ac(iuired  the  property,  he 
either  ac<iuired  it  for  the  company,  or  was 
in  such  a  position-  of  fiduciary  relation  to 
the  company  that  any  purchase  made  by 
him  of  property  available  for  the  company 
must  be  considered  as  a  purchase  made  by 
him  as  a  trustee  for  the  company.  In 
that  case,  what  the  court  does  is  to  go 
back  to  the  oiiginal  purchase  made  by 
the  person  who  afterwards  purports  to  sell 


to  the  company  at  an  advanced  price,  and 
to  say,  'This  was  already  the  conipiiny'sat 
the  price  which  you  originally  gave  lor  it 
when  you  were  a  trustee  for  the  com|wiiy. 
That  price  you  are  entitled  to  rcciivf  out 
of  the  cotters  of  tlie  company,  and  any- 
thing else  is  a  sum  paid  to  you  for  notliiiii;, 
whicli  you  are  not  entitled  to  rt'tiiiii.'  But 
neither  on  principle  nor  authority  can  the 
company,  not  seeking  to  set  asiilo  tiw 
transaction,  say :  "  VVe  will  hold  you  iw 
passing  this  to  the  company,  not  k-cuuse 
you  originally  acipiired  it  for  the  com- 
j)any,  but  because  you  entered  into  a  eon- 
tract  to  sell  to  the  company  which  is  not 
binding,  and  therefore  we  make  another 
contract  to  take  it  from  you  for  wlwt  it 
originally  cost  you,  making  you  uccount 
for  whatever  else  under  that  invalid  con- 
tract you  stipulated  should  be  ]i;!i'l  lor 
it.'  "  See  In  re  National  Funds  .^ssnc.  Co,, 
10  Ch.  Div.  118;  Kmma  Silver  Mining 
Co.  V.  Grant,  11  Ch.  Div.  918;  17  Ch. 
Div.  122;  In  re  Anglo-French  Co-opciiitive 
Soc,  21  Ch.  Div.  492  ;  Erian.irer  c  New 
Sombi-ero  Phosphate  Co.,  6  Cli.  Div.  7.'!;  3 
App.  Cas.  1218;  Murphy  v.  O'Shea,  2  J- 
&  Lat.  422  ;  McPherson  v.  Watt,  3  A])!'. 
Cas.  254;  Dunne  t).  English,  L.  1!.  18  Kq. 
624;  Hagnall  v.  Carleton,  6  Ch.  Div.  3,'l; 
Lewis  V.  Hillman,  3  H.  L.  Cas.  (iti7;  Tyr- 
rell V.  Bank  of  London,  10  H.  L.  Ca<.  26; 
Rothschild  v.  Brookman,  2  Dow.  &  C. 
188  ;  Gillett  v.  Pepi)ercorne,  3  15<nv.  78; 
Robinson  v.  Mollett,  L.  R.  7  H  I-  80-2:  Or- 
gill's  Case,  21  L.  T.  N.  s.  221 ;  Hav's  Case, 
L.  R.  10  Ch.  593;  Cover's  Case,  L.  H.  20 
Eq.  114;  ICh.  Div.  182;  Handswoilh  r. 
City  of  Cila,sgow  Bank,  5  A|>p.  Cis,  317; 
Clarke  v.  Dickson,  El.  B.  &  E.  148. 


¥.  M  V.J 


COBPOBATIONS. 


818 


and  if  the  allottco  would  have  been  debarred  of  his  remedy  against 
tlie  directors  by  laches,  coudoaution,  or  otliorwise,  the  transferee 
is  also  debarred  of  remedy.  And  (5)  Any  person  seekinj?  relief 
against  directors  of  a  company  in  respect  of  misconduct  in  issu- 
ing a  prospectus,  is  bound  to  come  promptly  for  relief. 

All  of  these  propositions  are  covered  by  the  important  case  of 
PcL'k  V.  (Jiirney,^  where  Lord  Romilly,  M.  R.,  delivers  a  most  elab- 
orate iiKl<rment.  Here,  in  July,  18G5,  the  directors  of  a  company, 
furnu'd  to  take  over  the  businehs  of  a  lirm  wliieh  they  knew  to  bo 
insolvent,  issued  a  prospectus  in  which  the  fact  of  such  insolvency 
was  withheld  from  the  public.  If  the  fact  had  been  disclosed,  the 
com|)any  would  not  have  been  formed.  The  directors  withheld 
the  fact,  honestly  believinj?  that  the  speculation  on  which  they 
were  about  to  embark  would  be  successful.  In  October  and  De- 
cember, 18G5,  the  plaintiff,  on  the  faith  of  thc^  prospectus,  bought 
in  the  market  shares  which  had  been  originally  allotted  to  a  part- 
ner in  the  insolvent  firm.  In  May,  ISGU,  the  company  stopped 
payment,  and  was  afterwards  wound  up,  and  the  plaintiff,  after 
considerable  litigation,  was  settled  on  the  list  of  contributories, 
and  was  compelled  to  pay  large  sums  in  respect  of  calls.  In 
March,  1808,  the  plaintiff  filed  the  bill  in  this  suit,  seeking  to  bo 
indenuiKicd  by  the  surviv/ng  directors  and  the  estate  of  a  deceased 
dircctur,  in  respect  of  his  losses.  It  was  held,  that  if  he  had  been 
an  original  allottee,  and  had  come  in  due  time,  he  would  have  been 
entitled  to  such  indemnity  ;  but,  that  he  was  debarred  of  his  rem- 
edy on  the  ground,  first,  that  he  was  in  no  better  position  than 
the  allottee  from  whom  he  bought;  and,  secondly,  that  he  had 
come  too  late  for  relief. 

The  case  came  by  appeal  to  the  House  of  Lords,^  and,  although 
the  decision  of  Lord  Romilly,  M.  R.,  was  affirmed,  and  the  appeal 
dismissed,  yet  it  was  on  grounds  radically  differing,  in  essential 
particulars,  from  those  adopted  by  Lord  Romilly.  On  the  ques- 
tion of  laches  in  connection  with  the  proceedings  instituted  by  the 
plaintiff.  Lord  Romilly  dealt  with  the  case  upon  the  principle 
established  by  many  decided  cases,  that  an  allottee  or  purchaser 
of  shares  in  a  company,  who  seeks  to  devest  himself  of  his  shares, 
upon  the  ground  of  his  having  been  induced  to  purchase  them  by 
misropioscntation,  cannot  be  relieved  if  he  has  continued  to  hold 
the  shares  without  objection,  after  knowledge,  or  with  the  full 
means  of  knowledge,  of  the  falsehood  by  which  he  has  been  drawn 
in  to  acquire  them.  These  cases  proceed  upon  the  ground  of  ac- 
quiescence, and  on  the  application  of  a  more  genera)  principle  that 
an  agreement  induced  by  fraud  is  not  absolutely  void,  but  that  it 

»  L.  R.  13  Eq.  79.  «  Peek  v.  Gurney,  L.  R.  6  H.  L.  377. 


I 


814 


COMMENTARIES  ON  SALES. 


[book  II, 


is  entirely  in  the  option  of  the  person  defrauded  whether  ho  will 
be  bound  by  it  or  nut.  But  the  suit  in  the  present  case  was  uot 
for  the  rescission  of  the  contract,  but  was  founded  upon  the  loss 
the  plaintiff  sustained,  and  might  sustain,  in  consequence  of  the 
contract  he  had  entered  into.  And  the  House  of  Lords  held  that 
the  doctrine  of  laches  did  not  apply  in  this  case  as  in  the  other; 
but  that  this  was  a  proceeding  similar  to  an  action  at  law  for  de- 
ceit ;  and  that  the  only  amount  of  delay  which  could  bo  a  bar  to 
relief  was  fixed  by  the  statute  of  limitations,  by  analogy  to  which 
equity  generally  proceeds  in  questions  of  laches.  And,  although 
the  order  of  Lord  Romilly  was  sustained  by  the  House  of  Lords, 
it  was  on  an  entirely  different  ground  from  the  grounds  relied  on 
by  the  court  below,  although  some  of  those  grounds  arc  rocoifuized 
by  the  House  of  Lords.  On  the  question  of  laches,  the  House  of 
Lords  held,  that  where  a  person  became  possessed  of  shares  in 
October,  18G5,  and  the  company  was  ordered  in  June,  18(3(5,  to  be 
wound  up,  and  he  contested  his  liability  to  be  made  a  contribu- 
tory, but  was,  in  July,  1867,  declared  liable  as  such,  and  in 
March,  1868,  filed  his  bill  against  the  directors  to  bo  iiulcmnified 
by  them,  the  delay  could  not  be  set  up  as  an  answer  to  the  suit. 
The  further  holdings  of  the  House  of  Lords  in  the  case  are :  — 

1.  That  a  prospectus  of  an  intended  company  ought  not  to  mis- 
represent actual  and  material  facts,  or  to  conceal  facts  material  to 
be  known,  the  misrepresentation  or  concealment  of  which  may 
improperly  influence  and  mislead  the  mind  of  the  reader,  for  if  lie 
is  thereby  deceived  into  becoming  an  allottee  of  shares,  aud,  in 
consequence,  suffers  loss,  he  is  entitled  to  proceed  against  those 
who  had  thus  misled  him.  But  the  responsibility  of  directors  who 
issue  a  prospectus  for  an  intended  company,  misrepresenting  act- 
ual and  material  facts,  or  concealing  facts  material  to  be  known, 
does  not,  as  of  course,  follow  the  shares  on  their  transfer  from  an 
allottee  to  his  vendee.  In  order  that  this  third  person,  the  ven- 
dee, should  be  enabled  to  maintain  any  proceeding  at  law,  or  in 
equity,  against  the  directors,  in  respect  of  losses  occasioned  by  his 
belief  in  the  prospectus  and  his  consequent  procurement  of  shares, 
he  must  show  some  direct  connection  between  them  and  himself 
in  the  communication  of  the  prospectus,  and  its  influence  upon  his 
conduct  in  becoming  an  allottee. 

2.  Where  one  of  the  projectors  of  a  company,  a  partner  of  the 
old  firm  which  sold  its  business  to  the  company,  set  up  as  a  de- 
fence that  he  had  not  taken  part  in  preparing  or  issuing  the  pro- 
spectus, but  he,  knowing,  however,  all  that  the  other  directors 
knew,  consented  to  become  a  director  of  the  company,  signed  the 
memorandum  and  articles  of  the  association,  and  shares  were  ap- 


PART  v.] 


CORPORATIONS. 


815 


proiuiutod  to  him ;  ho  could  not,  under  these  circumstances,  avail 
himsolf  of  such  a  defence. 

y.  Tiie  proceeding  in  such  a  case  is  liiie  an  action  at  law  for  de- 
ceit (the  same  principle  being  applicable  in  sucli  a  matter,  both  at 
law  and  in  equity),  and  is,  therefore,  of  a  personal  character,  and  the 
estate  of  a  deceased  director,  not  being  alleged  and  proved  to  have 
(lorived  benefit  from  the  deceit,  his  executors  cannot  bo  made  liable 
to  compensate  the  person  who  asserts  that  he  has  been  injured  by  it. 

4.  TIjc  proper  purpose  of  a  prospectus  of  an  intended  company 
is  to  invite  persons  to  become  allottees  of  the  shares,  or  original 
Kliarcholdcrs  in  the  company,  and  when  it  has  performed  this 
ollicc  it  is  exhausted. 

5.  Although  mere  non-disclosure  of  facts,  unless  such  non-dis- 
closure has  had  the  effect  of  making  the  disclosed  facts  abso- 
lutely false,  would  not  be  sutlicient  to  sustain  a  j)roceeding  which 
was  leally  in  the  nature  of  an  action  for  misrepresentation, 
yet  where  a  prospectus  for  an  intended  company  was  prepared 
by  the  projectors  (the  directors  of  the  company),  and  was  issued 
by  them  to  the  public,  which  contained  misrepresentations  of 
facts,  the  facts  being  known  to  th'  se  who  issued  the  prospectus ; 
anil  it  also  concealed  the  existence  of  a  deed  which  was  material 
to  be  known,  and  which,  if  known,  would  in  all  probability 
have  i)revented  the  formation  of  the  company ;  and,  being  ad- 
dressed to  the  whole  public,  my  one  might  take  up  the  prospec- 
tus and  appropriate  to  himself  its  representations,  by  applying  for 
un  allotment  of  shares  ;  yet,  as  when  the  allotment  was  completed 
the  otlicc  of  the  prospectus  was  exhausted,  a  person  who  had  not 
become  an  allottee,  but  was  only  a  subsetpient  purchaser  of  shares 
in  the  market,  was  not  so  connected  with  the  prospectus  as  to 
render  those  who  had  issued  it  liable  to  indemnify  him  against 
the  losses  which  he  had  suffered  in  consequence  of  the  purchase.^ 


II' 

Bi 


'  The  duties  of  persons  who  issnn  a 
irospi'itus  are  thus  hiid  down  in  New 
Sruiiswick  &  (Canada  Railway  Co.  v.  Miig- 
geiielj,',.,  1  Dr.  &  Sin.  363,  381  :  "Those 
who  issue  a  prospectus,  hokliiig  out  to 
the  piihlie  tlie  great  advantages  wliich 
will  iifiTue  to  persons  who  will  take  shares 
in  ft  [noposed  undertaking,  and  inviting 
them  to  take  shares  on  the  faith  of  the  rep- 
rcseiitatious  therein  contained,  are  bound 
to  stiiti'  everything  with  strict  and  scrupu- 
loiis  accuracy,  and  not  only  to  abstain  from 
statiiifT  as  fact  that  which  is  not  so,  but 
to  omit  no  one  fact  within  their  knowledge 
the  existence  of  which  might  iu  any  de- 
gree atl'ert  the  nature  or  extent  or  qual- 
ity of  the  privileges  and  advantages  which 
tile  prospectus  holds  out  as  inducements 
to  take  shares."    This  has  been  cited  ap- 


provingly in  Central  Rv.  Co.  of  Vene- 
zuela r.  Kisch,  L.  U.  2' II.  I;.  99,  113; 
and  in  Henderson  v.  Lacon,  L.  R.  5  K(|. 
249,  2^'3.  See  Oakes  v.  Turquand,  L.  R. 
2  H.  L.  325.  Lord  Kldon  said,  in  Evans 
V.  Bii'kiiell,  6  Ves.  174, 182,  "  It  is  a  very 
old  head  of  equity  that  if  a  representation 
is  made  to  another  ]>erson  going  to  deal 
in  a  matter  of  interest  upon  the  faith  of 
that  representation,  the  former  shall  make 
that  representation  good  if  ho  knows  it  to 
be  false."  The  i)rinciple  of  these  eases  was 
acted  on  in  Burrowes  v.  Lock,  10  Ves.  470; 
Slim  r.  Croucher,  1  De  G.  F.  &  J.  518; 
Colt  V.  WooUnston,  2  P.  Wnis.  154;  Green 
V.  Barrett,  I  Sim.  45  ;  Cridland  v.  Lord 
De  Mauley,  1  Do  G.  &  Sm.  459  ;  Ram- 
shire  V.  Bolton,  L.  R.  3  Kq.  294  ;  Hill  v. 
Lane,  L.  R.  11  Eq.  215;  Barry  v.  Croskey, 


I  ; 


[it 


316 


COMMENTARIES  ON   SALES. 


[book  II. 


In  The  Overend  Gurney  Co.  v.  Gibb,^  it  was  held  by  the  House  of 
Lords,  in  sustaining  a  demurrer  to  a  bill  filed  by  the  company 
against  the  directors :  — 

1.  That  facts  which  may  show  imprudence  in  the  exercise  of 
powers  undoubtedly  conferred  upon  directors,  will  not  subject 
them  to  personal  responsibility ;  the  imprudence  must  be  so  <^rcat 
and  manifest  as  to  amount  to  crassa  ne(/ligentia,  or  malfeasuuce, 
which,  to  make  the  directors  liable,  must  be  distinctly  charged. 

2.  In  a  company  formed  for  the  purchase  of  a  business,  where 
the  power  to  make  the  purchase  was  distinctly  conferred  on  tlie 
directors,  thougli  the  character  of  the  business  turned  out  to  be 
ruinous,  unless  that  cliaracter  was  obviously  aj)parcnt  when  the 
purchase  was  made,  the  directors  will  not  be  personally  responsi- 
ble for  making  it. 

3.  Where  directors  of  a  company  act  as  in  this  case,  rather  as 
agents  or  mandatories,  than  trustees,  and  are  authorized  to  do  au 


2  J.  &  H.  1,  30,  in  equity,  although  iu 
these  eases  it  was  claimed  tliat  there  was 
ail  aJec[uate  remedy  at  law  lor  the  plaiu- 
titlk 

111  Burnes  v.  Peunell,  2  H.  L.  Cas.  497, 
it  is  laid  down  that  it  is  the  suppressio 
veri  or  the  sM/ijeslio  falsi  which  is  the 
foundation  of  the  right  to  relief  in  enuity, 
and  this  exists  whether  it  was  fraudu- 
lently or  mistakenly  done.  The  super- 
added guilty  intention  gives  the  criminal 
jurisdiction,  but  this  does  not  take  away 
the  eijuitdble  jurisdiction.  A  man  may 
not  have  intended  to  deceive,  and  may 
have  believed  tliat  he  did  not,  when  he  was 
really  suppressing  the  truth  or  suggesting 
what  was  false.  If  so  he  is  not  liable  to 
an  indictment  >n  a  criminal  court,  but  he 
is  equally  responsil)le  iu  equity  as  if  he 
had  while  committing  these  acts  done  so 
with  a  view  to  injure  others  or  to  benelit 
himself.  See  Bargate  t\  Shortridgc,  5  H. 
L.  Cas.  297;  New  liiunswick  Laml,  c&c.  Co. 
V.  Conybeare,  9  H.  L.  ('as.  711  ;  Central 
Railway  Co.  of  Venezuela  v.  Kisch,  L.  II. 
2  H.  L.  99,  110;  Cornfoot  v.  Kowke,  (5  M. 
&  W.  358  ;  Fidler  v.  Wilson,  3  Q.  K  .58  ; 
Evans  v.  Collins,  3  Q.  B.  78,  n.  ;  5  Q.  B. 
804  ;  Taylor  v.  Ashton,  11  .M.  &  W.  40}  ; 
Langridge  v.  Levy,  2  M.  &  W.  [>l[) ;  4  .M. 
&  W.  337;  Kvansy.  Hi.kuell,  0  Ves.  171; 
Pasley  v.  Fidemau,  3  T.  11  .'il ;  Stniubauk 
V.  Feruley,  9  Sini.  .O;")*);  Daniel  v.  Mitithell, 
1  Story,  172  ;  Napier  r.  Klam,  6  Yorg. 
108  ;  I'arkhani  v.  H.iu.lolph,  4  How.  43.5 ; 
McAllister  y.  Barry,  2  Hayw.  290;  Livings- 
ton V.  Peru  Iron  Co..  2  I'aige,  390;  United 
States  Bank  v.  Lee,  13  Peters,  107;  Bur- 
rowes  I'.  Lock,  10  Ves.  470.  In  Barry  v. 
Croskey,  2  J.  &  H.  1,  22,  the  piinciples 
applicable  to  such  cases  are  stated  as  fol- 


lows :  First,  every  man  must  be  held  re- 
sponsible for  the  consequences  of  a  false 
ivjiresentatioii  mcde  by  him  to  ancither, 
upon  v.hich  that  other  acts,  and  so  ucting 
is  injured  or  danniified.  Sccond/ii,  every 
man  must  be  held  resjionsible  for  the  uoii- 
sequences  of  a  false  lepresentatiuii  niiule 
by  him  to  another,  upon  which  a  third 
person  acts,  and  so  acting  is  injured  or 
daninilied,  provi<led  it  apj)ear  that  such 
false  representation  was  made  with  tlie  in- 
tent that  it  should  be  acted  upon  by  such 
third  person  in  the  manner  that  oeciisions 
the  injury  or  loss.  But,  third!//,  to  bring 
it  within  the  principle,  the  injury  iiinst  be 
the  inuiu'diate  and  not  the  remote  conse- 
quence of  the  representation  thus  made, 
To  render  a  man  responsible  for  tln^  con- 
sequences of  a  false  representation  iiiiule 
by  him  to  another,  upon  which  a  third 
jierson  acts,  and  so  acting  is  injiued  or 
damnified,  it  must  appear  that  such  khe 
representation  was  made  with  the  direct 
intent  that  it  should  be  acted  uimii  hy 
such  third  person  in  the  mannertli.it  occa- 
sions the  injury  or  loss.  See,  further, 
Keates  v.  Karl  'Cadogan,  10  C.  li.  aid  I 
Scott  V.  Di.xoii,  29  L.  J.  K.\.  (!2,  n.  :  (icr- 
hard  v.  Bates,  2  K.  &  B.  47() ;  Culleu  v. 
Thompson,  4  Mac(|.  Se.  Ap.  424  ;  Tlie  Na- 
tional Exchange  Co.  of  (Jlasgow  v.  Prew, 

2  Mac.|.  103  ;  Ayre's  Case,  25  Bcav.  513 ; 
Haiiijer  v.  The  (Jreat  Western  h'y.  Co.,  5 
H.  L.  Cas.  8t) ;  Conybeare  v.  tlie  New 
Brunswick,  &c.  Co.,  1  De  G.  F.  &  I.  iwS; 
Langridge  v.  Levy,  2  M.  &  W.  511';  Kvins 
i;.  Bicknell,  6  Ves.  182  ;  Bedford  c.  Hag- 
.shaw,  4  H.  &  N.  538  ;  Pi>sley  v.  riveiiian, 

3  T.  U.  51  ;  The  Royal  British  Lank  V. 
Nicol,  5  .Mir.  n.  s.  207. 

1  L.  II.  5  H.  L.  480. 


ill  >!' 


PART  v.] 


CORPORATIONS. 


817 


act  in  itself  imprudent,  and  one  which  the  principal  ought  not,  as 
a  matter  of  prudence,  to  ha'e  authorized,  the  directors  arc  not  to 
be  lu'Ul  responsible  for  the  consequences  resulting  from  doing  the 
act  which  their  principals  authorized  them  to  do.' 

Directors  of  a  company  were  held  liable  for  cheques  signed  or 
sanctione  jy  them,  used  for  the  purchase  of  shares  in  the  ;om- 
pany,  where  the  articles  of  association  empowered  them  "  to  buy, 
sell,  or  loan,  on  all  descriptions  of  shares,  including  shares  issued 
by  tlio  company,  —  not  being  speculative  transactions  for  the  rise 
and  fall  of  shares;"  where  the  transaction  was  of  a  speculative 
character."^ 

2.  Incorporated  Companies  and  Municipal  CoRPORAr.f  ns. 


As  to  Necessity  of  Company^ s  Seal  to   Contract  i. 

The  old  doctrine  that  a  corporation  could  not  contract  except 
uiidcr  seal  has  been,  in  modern  times,  largely  broken  into. 

It  liiis  been  held  in  England,  that  whenever  a  corporation  is 
created  for  particular  purposes,  which  involve  the  necessity  for 
fieqiiently  entering  into  contracts  for  goods  or  works  essentially 
necessary  for  carrying  on  the  purjioses  for  which  the  corporation 
is  created,  into  execution,  a  demand  in  rospcct  to  goods  or  works 
wliich  have  actually  been  supplied  to  and  accepted  by  the  corpora- 
tion, and  of  which  they  had  the  full  benefit,  may  be  enforced  by 
action  of  assumpsit,  and  the  corporation  will  be  liable,  though  the 
contract  was  by  parol  only  and  not  by  deed.^ 


'  Sop  Tuninand  v.  Marshall,  I/.  R.  4 
Ch.  376  ;  Oakes  v.  Tiiniiian<i,  !v.  K.  2  H. 
L.  3'J(i ;  Vi<,'(Ts  V.  Pike,  8  CI.  &  F.  h<S-l ; 
Bovoy  r.  Tiaci'v,  2  Va\.  Gas.  Ab.  103  ; 
•  orpDnitiim  of  Ludlow  v.  (iireiiliouse,  1 
Bli.  N.  s.  17;  Charitable  Curjioratiou  v. 
Suttnii,  2  Atk.  400  ;  Attorncv-Ci'iierul  r. 
Wils..M,  Cr.  &  P.  1,  28  :  Yc^rk  &  North 
Mi.llaml   J{y.   Co.   V.   Hudson,   16   Buav. 

-  I.aiiil  Credit  Company  of  Ireland  v. 
hovil  K.iiiioy,  L.  U.  8  \L^\.  7.  Tlic  court 
said:  "  Xeitlier  the  mcnioraiiduiti  nor  the 
artiilcs  mention  the  piin-hnse  of  shares  of 
tile  (diniiany  ;  and  even  if  that  could  be 
iiiiplieil  in  this  ease  it  must  be  with  the 
ri'stiii'tidiiN  mentioned  that  the  ]iurehi'.ie 
is  lint  made  for  speculation.  The  pay- 
ment was  not  justified  by  the  rules  niid 
IiriiH'i]il('s  on  whieh  the  com|iany  was 
tniiiidid.  Tills  Innng  so,  nil  the  directors 
whii  made  or  sanctioned  the  payment  are 
liable  to  refund  it,  or  so  much  of  it  ns 
tliey  individually  sanctioned.  Directors 
are,  so  far  as  re}>ards  the  employment  of 
the  funds  of  the  company,  trusteijs  for  the 


shareholders,  and  are  answerable  to  their 
ce^!tuis  que  trust  for  the  due  employment 
of  the  lunds  entrusted  to  thcin.  ...  A 
pica  of  ignoraticc  by  a  director,  or  that 
anytliinf;  was  dune  by  him  for  the  sake  of 
conformity,  is  merely  a  jilea  of  guilty,  and 
it  is  an  admission  of  lialiility  to  account 
for  the  SUMS  misapplied." 

8  Clarke  v.  Cucktield  Union.  21  L.  J. 
Q.  15.  ;i4!i;  Haigh  r.  N(Uth  Hrierlcv  Union, 
K.  IS.  &  K.  878  ;  28  L.  J.  Q.  B.  (52;  Sand- 
ers V.  St.  Neot's  Union,  8  Q.  H.  810 ; 
Paine  v.  The  Strand  Union,  T/>.  326 ; 
Church  V.  The  Imperial  (!as  Li^ht  & 
Coke  Co.,  6  A.  k  K.  84(5  ;  De  Grave  v. 
The  Mayor,  &c.  of  Monmouth,  4  C.  &  P. 
Ill;  Beverley  I'.  The  Lincoln  Cas  Light 
&  Coal  Co.,  ♦)  A.  &  K.  829  ;  The  Coj.per 
Miners  Co.  v.  Fox,  20  L.  J.  Q.  B.  174; 
Bac.  Ab,  tit.  Corporations,  K ;  Com.  Dig. 
tit.  Frir7tr/ii.ics,  F,  12.  13  ;  The  London 
Gas  Light  &  Coal  Co.  v.  Nicholls,  2  V.  & 
P.  36.5  ;  The  Maypr,  &c.  of  Stafford  v.  Till, 
4  Ming.  75  ;  The  Fast  London  Waterworka 
Co.  V.  Bailey,  4  Bing.  283. 


M  ' 


M  1 


! 


!  1  * 
■■.< 


P  ^   ., 


AH  ■'■! 


H « 


m 


r 


■^r-ywW 


.......AM' 


.1 1  ■  f 


318 


COMMENTARIES  ON  SALES. 


[book  ii. 


The  case  of  Clarke  v.  Cuckfield  Union,^  was  followed  and  ap- 
proved in  Nicholson  v.  Bradford  Uniou,'^  where  the  plaintiffs  sup- 
plied coal  from  time  to  time  to  the  defendants,  the  guardians  of  a 
poor-law  Union,  for  the  use  of  their  workiiouse,  under  articles  of 
agreement  between  the  plaintiff  and  the  defendants  executed  by 
the  plaintiff,  but  not  under  the  seal  of  tlie  defendants.  The  de- 
fendants received  and  used  some  of  the  coals.  In  an  action  for 
goods  sold  and  delivered  it  was  held  that,  as  the  goods  had  been 
supplied  and  accepted  by  the  defendants,  and  were  such  as  must 
necessarily  be  from  time  to  time  supplied  for  the  very  purposes 
for  which  the  defendants  were  incorporated,  the  defendants  were 
liable  to  pay  for  the  coals  although  the  contract  was  not  under 
seal.  Lord  Blackburn,  in  delivering  the  judgment  of  the  court, 
refers  to  the  important  distinction  between  an  action  against  a 
corporation  where  the  contract  is  not  under  seal,  where  the  con- 
tract is  executory,  where  the  corporation  has  not  derived  any  licn- 
efit  under  the  contract,  and  a  case  such  as  Nicholson  v.  Bradford 
Union  where  the  contract  has  been  executed  and  the  corporation 
has  received  the  full  benefit  of  it.^ 

A  company  entering  into  a  contract  for  the  purchase  of  goods, 
and  having  power  to  do  so,  is  bound  by  such  contract,  althoujxli  the 
goods  may  not  be  intended  to  be  used  for  the  purposes  of  the  com- 
pany, and  although  this  fact  may  be  known  to  the  person  with  whom 


»  21  L.  J.  Q.  a  349. 

2  L.  R.  1  Q.  H.  620. 

8  The  following  are  the  remarks  of  Lord 
Blackburn  on  the  j)oint  involved  :  "  It  is 
not  necessary  to  express  any  opinion  as  to 
what  might  have  been  the  case  if  the  plain- 
tiff had  been  suing  on  this  contract  for  a 
refusal  to  accept  the  coals,  or  any  other 
breach  of  the  contract  whilst  still  execu- 
tory, or  how  far  the  principle  of  I^ondon 
Dock  Company  v.  Sinnott,  8  E.  &  B.  347, 
would  then  have  ajtplied  to  such  a  con- 
tract. The  goods  in  the  present  case  have 
actually  been  supplied  to  and  accepted 
by  the  corporation  ;  th^y  were  such  as 
must  necessarily  be  from  time  to  time 
supplied  for  the  very  purposes  for  which 
the  body  was  incorporated,  and  they  were 
supplied  under  a  contract,  in  fact,  made 
by  the  managing  body  of  the  corporation. 
If  the  defendants  had  been  an  unincorpo- 
rated body  nothing  would  have  remained 
but  the  duty  to  pay  for  them.  We  think 
that  the  body  corporate  cannot  under  such 
circumstances  escape  from  fulfilling  that 
duty  merely  liecause  the  contract  was  not 
under  seal.  The  case  of  Clarke  v.  Cuck- 
field Union,  21  L.  J.  Q.  B.  349,  is  in  its 
facts  undistinguishable  from  the  present 
caae.     We  are  aware  that  very  high  au- 


thorities have  questioned  the  soundnoss  of 
thi:t  decision,  and,  as  jwinted  out  in  the 
judgment  in  that  case,  there  are  prior  l.  ■i- 
sions  in  the  Court  of  Exche(iupr  win.  h  it 
is  difficult  to  reconcile  with  it.  Wc  tliink, 
however,  that,  as  far  as  it  extends  to  such 
a  case  as  the  present,  at  least,  the  wise  was 
rightly  decided.  T'tere  may  he  cnsi's  in 
which  the  circumsta  ices  are  'diUVivnt  from 
those  in  Clarke  v.  Cuckfield  Union  anil  the 
present  case,  aii.l  which  would  still  he  f;ov- 
erned  by  the  principles  laid  down  in  the 
decisions  in  the  Exchequer ;  tliose  we 
leave  to  be  decided  when  they  iirisi' ;  but 
so  far  as  those  prioi  aecisions  iiri'  incon- 
sistent with  the  decision  in  Clarke  i'. 
Cucklield  Union  we  prefer  to  follow  the 
authority  of  Clarke  v.  CucktieKl  I'nion, 
which  we  think  founded  on  justii'o  ami  con- 
venience." Nicholson  i>.  Hradfor  1  I'nion, 
L.  R.  1  Q.  B.  620.  See  The  Mavor,  &;. 
of  Ludlow  V,  Charlton,  6  M.  &  W.  815; 
Diggle  V.  The  lioudon,  &c.  Ky.  Co.,  r>  Kx. 
442;  Lamprell  v.  The  Billericav  I'nion, 
3  Ex.  283  ;  Smart  v.  West  Ham  I'ninn, 
10  Ex.  867;  11  Ex.  867;  The  London 
Dock  Co.  V.  Sinnott,  8  E.  &  B.  ;il7 ;  Ar- 
nold V.  Mayor  of  Poole,  4  M.  >V  (i.  StiO; 
Copper  Miners'  Co.  v.  Fox,  16  Q.  B.  229. 


PART  v.] 


CORPORATIONS. 


819 


the  contract  is  entered  into.  A  company,  C,  formed  for  the  pur- 
pose (amohgst  others),  of  constructing  railways,  by  a  letter  from 
the  secretary  gave  an  order  to  company  E.  for  500  tons  of  rails  at 
a  certain  price,  to  be  paid  for  by  three  months  acceptances  from 
the  date  of  delivery.  The  managing  director  of  Company  E.  was 
also  a  director  of  Company  C.  The  rails  were  intended  to  be  used 
in  the  construction  of  a  line  of  railway  which  the  managing  di- 
rector of  Company  C,  and  not  the  company  itself,  had  undertaken 
to  make.  The  rails  were  made,  but  were  not  delivered,  in  conse- 
quence of  Company  C.  being  ordered  to  be  wound  up.  Held,  that 
tlie  secretary's  order  was  binding  on  Company  C,  although  not 
under  seal,  and  although  the  managing  director  of  Ccnnpany  E. 
might  have  known  the  purpose  for  which  the  rails  were  to  be 
used ;  and  also,  that  Company  E.  was  entitled  to  prove  in  the 
winding  up  for  damages  occasioned  by  the  non-acceptance  of  the 
rails ;  and  that  the  court  would  not  sanction  the  giving  of  accept- 
ances by  the  olticial  liquidator  for  the  price  of  the  rails.* 


2  III  rr.  Contract  Corporation,  Claim  of 
Ebbw  Vale  Company,  L.  R.  8  Eq.  14. 

The  (|iicstiou  tliat  was  raised  in  this 
case,  but  not  pressed,  that  a  corpoiaiion 
cannot  contract  without  seal,  was  decided 
in,  ainon^  other  cases,  South  of  Ireland 
Collieiy  Co.  V.  Waddle,  L.  R.  3  C.  P.  463, 
where  Bnvill,  C.  J.,  says  :  "The  objection 
is  entiiely  a  technical  one  ;  but,  though 
techni'iil,  if  it  be  in  accortlance  with  law 
the  court  is  bound  to  give  effect  to  it. 
Originally  all  contracts  by  corporations 
were  reipiired  to  be  under  seal.  From 
time  to  time  certain  exceptions  were  in- 
troiluced,  but  these  for  a  long  time  had 
reference  only  to  matters  of  trifling  impor- 
tance and  fre(juent  occurrence,  such  as  the 
hiring  of  servants  and  the  like  ;  but  in 
jiroffress  of  time,  as  new  descriptions  of 
cnrporatioiis  came  into  existence,  the  c  mi'ts 
came  to  consider  whether  these  exceptions 
ought  not  to  be  extended  in  the  case  of 
cor[ioratious  created  for  trading  and  other 
pur|ios:'s.  At  tirst  there  was  considerable 
coniliet ;  and  it  is  impossible  to  reconcile 
all  the  decisions  on  the  subject.  Hut  it 
seems  to  ine  that  the  exceptions  created 
by  the  recent  cases  are  now  too  firmly 
established  to  be  questioned  by  the  earlier 
lieeisioiis,  which,  if  inconsistent  with  them, 
must,  I  think,  be  held  not  to  be  law. 
These  exceptions  apply  to  all  contracts  by 
trailing;  corporations  entered  into  for  the 
purposes  for  which  they  are  incorporated. 
A  company  can  only  carry  on  business  by 
agents,  managers,  and  others  ;  and  if  the 
eontrnets  made  by  these  persons  are  con- 
tracts  which  relate  to  objects  and  pur- 
poses of  the  compa.iy,  and  are  not  incon- 


sistent with  the  rules  and  regulations 
which  govern  their  acts,  they  are  valid 
and  binding  on  the  company,  though  not 
under  seal.  It  has  been  urged  that  the 
exceptions  to  the  general  rule  are  still  lim- 
ited to  matters  of  frequent  occurrence  and 
small  importance.  The  authorities,  how- 
ever, do  not  sustain  that  argument.  It 
can  never  be  that  one  rule  is  to  obtain  in 
the  case  of  a  contract  for  £50  or  £100, 
and  another  in  the  case  of  £."50,000  or 
£100,000."  In  Henderson  v.  Australian 
Koyal  Mail  Steam  Nav.  Co.,  5  E.  &  B. 
409,  the  existence  as  well  as  the  propriety 
of  the  modern  rule  was  affirmed.  In  this 
case  Erie,  J.,  said  :  "  I  cannot  think  that 
the  magnitude  or  the  insignificance  of  the 
contract  is  an  element  in  deci<ling  cases  of 
this  sort.  No  doubt  when  the  exception 
originated  it  was  applied  to  small  matters, 
such  as  the  appointment  of  servants,  being 
all  that  municipal  corporations  required. 
Hut  as  soon  as  it  became  extended  to  trad- 
ing corjiorations  it  was  applied  to  drawing 
and  accepting  bills  of  any  amount ;  and 
this  shows  that  insignificance  is  not  an 
element.  Neither,  I  think,  is  frequency. 
The  lirst  time  that  a  company  makes  a 
contract  of  any  kind,  that  contract  must 
have  b(!en  unprecedented.  The  (question 
is,  I  think,  whether  the  contract  in  its 
nature  is  directly  connected  with  the  pur- 
pose of  the  incorporation." 

In  Clarke  v.  Cuckfield  Union,  1  Bail. 
C.  C.  85,  it  was  laid  down  by  Wightnian, 
J.,  that  the  general  rule  that  a  cor|)oration 
aggregate  cannot  contract  except  by  deed 
admits  of  an  exception  in  cases  where  the 
making  of  a  certain  description  of  contract 


W 

iili 


320 


COMMBNTARTES  ON   SALES. 


[book  II. 


3.  English  Companies'  Acts. 

Many  questions  have  arisen  in  England  with  reference  to  sales 
of  shares  in  companies  unc'er  the  English  Companies'  Acts,  and, 


iiii 


is  necessary  ami  iiuiitlental  to  the  purposes 
for  wliicli  the  corporutioii  was  created. 
The  same  principle  was  acted  upon  in 
Beverley  v.  The  Lincoln  Gas  Light  &  Coke 
Co.,  6  A.  &  E.  829  ;  Samiers  u.  St.  Neot's 
Union,  8  Q.  B.  810  ;  Copper  Miners'  Co. 
V.  Fox,  16  Q.  13.  229  ;  Brou^liton  v.  The 
Manchester  Waterworks'  Co.,  3  B.  &  Aid. 
1  ;  Australian  lloyal  Mail  Steam  Nav.  Co. 
V.  Marzetti,  11  Ex.  228;  The  Fishmongers' 
Co.  V.  Uobertson,  5  M.  &  G.  131 ;  Reuter 
V.  Electric  Teh  Co.,  6  E.  &  K.  341  ;  and  in 
many  other  cases.  In  Australian  Koyal 
Mail  Steam  Nav.  Co.  v.  Mirzetti,  11  Ex. 
228,  Pollock,  C.  B.,  said  :  "It  is  now  i)er- 
fectly  established  by  a  series  of  authorities 
that  a  corporation  may  wkIi  respect  to 
these  matters  for  which  they  ere  expressly 
created  deal  without  seal.  This  principle 
is  founded  on  justice  and  public  conven- 
ience, and  is  in  accordance  with  common 
sense."  See  also  East  London  Water- 
works' Co.  I'.  Bailey,  4  Bing.  285  ;  Finlay 
V.  Bristol  &  Exeter  Ry.  Co.,  7  Ex.  40!< ; 
Lowe  0.  London  &  Northwestern  Ry.  Co., 
21  L.  J.  Q.  B.  361;  Laniprell  v.  Billericav 
Union,  3  Ex.  283  ;  The  Dean  and  Chapter 
of  Rochester  v.  Pierce,  1  Camp.  466  ;  The 
Mayor  of  Stafford  v.  Till,  4  Biug.  75  ;  The 
Mayor  and  Biirgosses  of  Carmarthen  v, 
Lewis,  6  C.  &  P.  608. 

Anciently  it  was  held  that  a  corpora- 
tion aggregate  could  not  do  anything  with- 
out deed.  13  H.  8,  12  ;  4  H.  7,  6  ;  7  H. 
7, 9.  A fterwards  ' '  for  conveniency's  sake  " 
it  was  allowed  to  act  in  ordinary  matters 
without  deed,  as  to  retain  a  servant,  cook, 
or  butler  :  Plow.  91,  b.  ;  2  Saund.  30.5,  or 
to  a|>point  a  bailiff  to  take  n  distress.  3  Lev. 
107.  But  in  case  of  anythitig  of  conse- 
quence, or  the  employing  any  one  to  act  on 
tneir  behalf  in  a  matter  which  was  not  an 
onlinary  service,  a  corporation  aggregate 
could  not  do  that  without  deed.  "This  was 
the  distinction  taken  in  Home  and  Ivy's 
Case,  rejMjrted  in  1  Vent.  47;  1  Mod.  18;  2 
Keb.  567.  See  Damper  v.  Synims,  1  Rol. 
Ab.  514  ;  Rex  o.  Biggs,  3  P.  Wms.  419.  At 
length  it  seems  to  have  been  established 
that  though  they  could  not  contract  di- 
rectly except  under  their  corporate  seal, 
yet  they  might  by  mere  vote  or  other 
corporate  act  not  under  their  corpomte 
seal  appoint  an  agent,  whose  acts  and  con- 
tracts within  the  scope  of  his  authority 
would  be  binding  on  the  corporation.  As 
soon  as  the  doctrine  was  estal)lished  that 
their  regularly  appointed  agent  could  con- 
tract in  their  own  name  without  seal  the 


whole  doctrine  that  a  corporation  aggre- 
gate could  not  contract  without  sciil  was 
overthrown,  for  clearly  anything  that  it  is 
competent  for  a  iiriucipal  to  do  by  bis 
agent  he  can  legally  do  himself.  Hence 
it  is  now,  and  has  been  for  a  lonj,'  time 
past,  well  established  both  in  EngliUid  and 
in  this  country,  that  wherever  a  ci)i|iora- 
tion  is  acting  within  the  scope  of  the 
legitimate  purposes  of  its  institution,  all 
parol  contracts  made  by  its  authorized 
agents  are  express  promises  of  the  oorpo. 
ration  ;  and  all  duties  imimsed  on  them 
by  law,  and  all  beuetits  conferred  at  their 
request,  raise  implied  promises,  for  the 
enforcement  of  wliich  an  action  will  lie. 
Bank  of  England  v.  Mottat,  3  Bd.  I'h. 
2()2 ;  Rex  v.  Bank  of  England,  Doug. 
524,  n.  ;  i$ank  of  Columbia  v.  Tatterson's 
Admstr.,  7  Cranch,  299,  305;  (!ray  r. 
Portland  Bank,  3  Ma.ss.  364  ;  Worci'ster 
Turnpike  t'orporation  v.  Willard,  5  Mass. 
80;  Gilmore  v.  Pofie,  lb.  491;  AuJover, 
&c.  Corporation  v.  Gould,  6  .Mass.  40, 
It  was  decided  in  Me  .Masters  v.  Heed's 
Executors,  1  Grant  (Pa.),  36,  4!»,  ujion 
principle  as  well  as  upon  authoiity,  that 
corporations  are  bound  by  all  contracts, 
whetlier  express  or  implied,  whi'tluT  by 
bond,  bill  of  exchange,  or  negotiable  note, 
entered  into  in  tiie  usual  and  iieccssary 
course  of  their  legitimate  business,  exi'ept 
where  there  is  a  statutory  proliiliition. 
See  The  People  v.  Tiie  Utiea  Ins.  Co.,  15 
Johns.  383  ;  New  York  FirenuMi's  Ins. 
Co.  V.  Sturges,  2  Cow.  675  ;  New  York 
Firemen's  lus.  Co.  v.  Ely,  Fb.  (iyi» ;  Dana 
V.  Tiie  Hank  of  The  United  States,  5  W. 
&  S.  243;  Mott  v.  Hicks,  1  Cow.  513; 
Kelley  V.  Mayor  of  Brooklyn,  4  Hill,  265; 
Moss  V.  Oakley,  2  Hill,  '2ti5  ;  BarkiT  v. 
Mech.  Ins.  Co.,  3  Wend.  97;  Gassi'tt  o. 
Andover,  21  Vt.  342  ;  San  Antonio  v. 
Lewis,  9  Tex.  69. 

In  general  a  corporation  is  restrii'ted  to 
the  mode  of  contracting  ])rescribi(l  i\v  the 
charter.  But  wh'-re  no  particular  nioile  is 
ju'escribed  i)y  the  act  of  incorpoi-atimi  it  is 
well  settled  in  this  country  that  tin-  acts 
of  a  corporation,  written  or  uiiwritton, 
evidenced  by  note,  are  as  conipli'tily  hm\- 
ing  on  it,  and  are  as  complete  antliority 
to  its  agents,  as  the  most  solemn  acts 
done  under  its  corporate  seal ;  that  it  may 
as  well  be  bound  by  express  promises 
through  its  authorized  agents  as  by  il''«l  i 
and  that  promises  may  as  well  be  implied 
from  its  acts  and  the  acts  of  its  njjints as 
if  it  had  been  an  individual.    Abby  ». 


PART  v.] 


CORPORATIONS. 


321 


while  applicable  in  analogous  cases  in  this  country,  as  they  have 
incidents  peculiar  to  themselves,  we  devote  a  separate  section  of 
this  Part  to  cases  connected  with  such  questions. 

A  limitod  company  was  incorporated  under  the  English  Joint 
Stock  Companies'  Acts,  with  the  objects,  as  stated  in  its  memo- 
raiKlum  of  association,  of  acquiring  and  carrying  on  a  manufac- 
turing business,  and  any  other  businesses  and  transactions  which 
the  company  might  consider  to  be  in  any  way  conducive  or  auxil- 
iary thereto  or  in  any  way  connected'thcrewith.  The  memorandum 
did  not  authorize  the  company  to  purchase  its  own  shares,  but  its 
articles  of  association  did  so.  The  company  having  gone  into 
liquidation,  a  former  shareholder  made  a  claim  against  the  com- 
pany for  the  balance  of  the  price  of  his  shares  sold  by  him  to  the 
company  before  the  liquidation  and  not  wholly  paid  for.  The 
House  of  Lords  held,^  reversing  the  decision  of  the  Court  of  Ap- 
peal, that  such  a  company  had  no  power  under  the  Companies'  Acts 
to  pi'vchase  its  own  shares  ;  that  the  purchase  was,  therefore, 
ultra  vires  ;  that  a  transaction  not  within  the  scope  of  the  memo- 
randum of  association  is  incapable  of  ratification,  and  that  the 
claim  must  fail.^ 

The  jjlaintiff  having  through  his  brokers  on  the  stock  exchange 


Billnps,  35  Miss.  618,  630.  In  Ring  v. 
.lohiiscm  County,  6  Iowa,  265,  the  well- 
establislu'd  doctrine  is  laid  down  that  cor- 
porations of  all  kinds  may  be  bound  by 
contracts  not  un<ler  their  seals.  They 
may  make  a  binding  contract  in  writing 
without  using  the  seal,  and  so  they  may 
be  hebl  liable  on  verbal  contracts.  And 
as  tliey  may  make  so  they  may  ratify  and 
adopt  as  their  own,  without  the  use  of 
their  seal,  that  which  has  been  done  by 
anotbi'r,  or  by  an  officer  out  of  the  usual 
line  of  his  duties.  Merrick  i>.  The  Bur- 
lington, &c.  Co.,  11  Iowa,  74.  In  Blanch- 
ard  !'.  Tlie  Maysville,  &c.  Co.,  1  Dana 
(Ky.),  87,  it  is  .said  :  "  Whatever  diversi- 
ties may  be  suppo.scd  to  exist  between  the 
aneient  and  modern  decisions  as  to  the 
capacity  of  a  eoiporation  to  bind  itself  by 
I'spress  contract  without  its  common  seal, 
and  liowcvcr  undefined  the  cases  may  be 
supposed  to  be,  in  which,  according  to 
many  autlioritie.s,  such  a  capacity  exists, 
there  can  be  no  doubt  that  a  statutory 
corporation  may  be  liable  to  an  action 
"pon  a  liability  imposed  by  its  charter,  or 
r"siiltiiig  by  iiniilication  of  law  from  its 
nets ;  and  records  and  judgments,  even 
erroneously  rendered,  on  parol  contracts, 
but  nmi> versed  and  not  void,  may  impose 
lesal  liabilitv  on  all  corporations'."  See. 
further,  Frankfort  Bii<lge  Co.  v.  Citv  of 
Frankfort,  18  B.  Monr.  41;  Waller  i>.  The 
VOL.  I,  21 


Bank  of  Kentucky,  3  .T.  J.  Marsh.  201 ; 
St.  Andrews  Bay  Land  Co.  v.  Mitchell, 
4  Fla.  192,  199  ;  Kverett  v.  The  United 
States,  6  Port.  (Ala.)  166,  181. 

•  Trevor  v.  Whitworth,  12  App.  Gas. 
409. 

2  A  company  cannot  employ  its  funds 
for  the  purpose  of  any  traui^actions  which 
do  not  come  within  the  objects  specified 
in  the  memorandum,  and  a  company  can- 
not by  its  articles  of  asiiociation  extend  its 
power  in  this  resjiect.  Ashbury  Hallway 
Carriage  and  Iron  (.'o.  »'.  Riclie,  L.  1{.  7 
H.  L.  6.53.  This  ease  also  decides  that  a 
transaction  not  within  tlr  scope  of  the 
memorandum  is  incapabl  ■  ot  ""tiliiation. 
See  also  Teasdale's  Case,  .  )  Cii.  .54  ; 

Ilojie  I'.  International  Financial  Soc,  4 
Ch.  Div.  3'_'7,  336 ;  Guiniies-  •.  Land 
Corp.  of  Ireland,  22  Ch.  Div.  .4?,  375; 
///  re  Dro.ilield  SilksloneCoal  Co.,  17  Ch. 
Div.  76;  I'hospbate  of  l,iiueCo.  r.  Cireen, 
L.  R.  7  C.  \\  43.  It  is  inconsistent  with 
tlie  essential  nature  of  a  company  that  it 
should  become  a  meniber  of  itself.  It 
cannot  lie  registereil  as  a  shareholder  to 
the  effect  of  becoming  debtor  to  itself 
for  calls,  or  of  being  placed  on  the  list  of 
contribntories  in  its  own  liouidation.  In 
re.  Dronfield  Silkstone  Coal  Co..  17  Ch. 
Div.  76,  83  ;  Trevor  v.  Whitworth,  12 
App.  Cas.  409,  424. 


M 


hi 


r  •■ 


\m 


r  II 


i 


f,  I     -ll 


322 


COMMENTARIES  ON  SALES. 


[book  II. 


sold  to  the  defendant,  a  jobber,  ten  shares  in  Overend,  Gurney  A- 
Co,,  Limited,  tlie  defendant  on  the  name-day  gave  to  the  plaintiffs 
brokers  the  name  of  Goss  as  the  ultimate  buyer.  No  objection 
was  made  to  the  name,  and  the  plaintiff  oxccutcd  a  transfer  to 
Goss  of  the  ton  shares.  It  was  afterwaiJs  discovered  that  the 
brokers  named  on  the  ticket  as  the  brokers  of  Goss  had  been  in- 
structed by  S.  to  buy,  and  had  in  fact  bought,  a  large  number  of 
shares  for  S.  as  undisclosed  principal.  The  ten  shares  in  ques- 
tion (the  dealings  not  being  for  specific  shares)  were  delivered  to 
them  as  part  of  the  shares  so  purchased,  but  the  name  of  Goss 
was  passed  in  pursuance  of  S.'s  instructions,  and  according  to  an 
arrangement  by  which  Goss,  who  was  a  person  of  no  means,  con- 
sented to  allow  his  name  to  be  passed  in  consideration  of  a  sum 
of  money  paid  to  him.  The  purchasing  brokers,  as  well  as  the 
defendant,  were  ignorant  of  this  arrangement.  Calls  having  been 
made  on  the  shares,  which  the  plaintiff  was  compelled  to  pay,  and 
which  he  was  unable  to  recover  from  Goss,  he  brought  this  action 
to  recover  them  from  the  defendant.  It  was  held  by  the  Court  of 
Exchequer  (Cleasby,  B.,  dissenting)  that  Goss  was  an  ultimate 
purchaser  within  the  meaning  of  that  term  as  applied  in  the  u&>,^j 
of  the  Stock  Exchange  ;  that  the  defendant  had  fulfilled  his  ohVm- 
tion  by  passing  a  name  to  which  no  objection  was  taken  accord- 
ing to  the  usage ;  and,  that,  in  the  absence  of  any  fraud,  either  in 
the  defendant  or  in  the  purchasing  brokers,  the  defendant  could 
not  be  treated  as  ultimate  buyer  himself  or  be  made  liable  for  calls.' 
On  appeal  to  the  Exchequer  Chamber  ^  this  judgment  was  atfirnied, 
Rush,  J.,  dissenting. 

The  case  of  Merry  v.  Niekalls '  was  taken,  on  appeal,  to  the 
House  of  Lords,*  when  the  decree  of  tiie  court  below  was  alBrnied. 
The  argument  on  the  part  of  the  appellant  was,  that,  as  there 
were  ten  days  during  which  the  vendor  could  object  to  the  name 
of  the  ultimate  purchaser,  unless  the  objection  were  made  within 
that  time  the  seller  was  concluded.  But  the  House  of  Lords  held 
that  this  only  applied  to  the  case  where  the  name  given  was  that 
of  one  capable  of  contracting,  and  did  not  apply  to  the  case  where 
a  name  is  handed  in  which  is,  in  fact,  no  name  at  all ;  as  a  licti- 


»  Maxted  v.  Paine,  L.  R.  4  Ex.  203. 
See,  also,  Muxted  v.  Paine  (first  ac- 
tion), L.  R.  4  Ex.  81,  where  a  somewhat 
similar  question  is  decided.  See,  also, 
Grissell  v.  Bristowe,  L.  R.  3  C.  V.  112; 
L.  R.  4  C.  P.  36;  Coles  v.  Jbristow,  L.  It. 
4Ch.  3  ;  Cruse  v.  Paine,  L.  11.  4  Ch.  441 ; 
Torrington  v.  Lowe,  L.  R.  4  C.  P.  26  ; 
Shephard  v.  Murphy,  Ir.  L.  R,  2  Kq.  544 ; 
Payne's  Case,  L.  R.  9  Eq.  223 ;  Bunk  of 
Hindustan  v,  Kintrea,  L.  R.  5  Ch.  95  ; 


Castellan  v.  Hobson,  L.  R.  10  h\.  4"; 
Whitehead  v.  Izod,  L.  R.  2  ('.  1'.  ii'.'S; 
Shaw  o.  Fisher,  5  Dc  O.  M.  &  C.  596. 
See  post,  Niekalls  v.  Merry,  L.  I!.  7  11.  L. 
530,  where  Maxtud  e.  Paine  (1st  action), 
L.  R.  4  Ex.  81,  is  approved. 

a  L.  R.  6  Ex.  132. 

«  L.  R.  7  Ch.  733.  stated  bv  tis  ante, 
p.  133. 

♦  Niekalls  i-.  Merry,  L.  R.  7  H.  L. 
530. 


PART  v.] 


CORPORATIONS. 


823 


tious  name,  or  a  name  given  without  authority,  or  the  name  of  a 
person  who  cannot  contract,  as  being  an  infant  or  married  woman. 
Lord  Ilathci'lcy  put  the  case  as  being  as  phviu  as  possible ;  as  one 
of  the  simplest  elements  of  the  law  of  contracts ;  that,  it  being 
once  admitted  that  a  jobber  had  made  a  contract  by  which  he  was 
bouml,  he  could  not  discharge  himself  by  saying,  —  "  I  have  intro- 
duced a  ])crson  who  is  utterly  incapable  of  being  bound  ;  you 
must  take  him  in  place  of  me,  for  the  rule  of  the  Stock  Exchange 


savs  so, 


"1 


1  Lonl  Iliithi-rlcy,  in  disposing  of  this, 
praeticiilly  the  contt'Ution  for  the  appel- 
lant, said  :  "  If  sudi  a  rule  existed,  it 
eoulil  not  be  alleged  that  there  was  any 
comimm  sense,  if  1  may  say  so,  on  the  face 
of  such  a  rule  ;  hut  if  ever  such  a  rule 
should  he  made,  it  will  he  time  enough 
for  the  courts  of  law  to  consider  how  far 
such  11  rule  should  be  admitted,  or  how  it 
can  lu!  reconciled  with  common  sense.  At 
present  it  appears  to  me  that  there  is  no 
such  rule,  and  that  the  jobber  is  bound  to 
liberate  hinisolf  from  liability  by  producing 
the  name  of  a  person  who  is  capable  of  con- 
tractinr;.  A  pi.rty  who  is  supposed  to  be 
inca|iablc  of  performing  the  contract  for 
want  of  means,  but  who  is  capable  of  en- 
terinj;  into  the  contract,  may  havo  given 
authority  to  give  his  name.  That  is  one 
tiling.  In  that  case  ten  day3  are  given, 
uiiilcr  the  rule  of  the  Stock  ?jxchange,  to 
say  whether  or  not  you  will  accept  the 
contracting  party  whose  name  is  given  to 
you  ;  for  he  is  really  a  rontracting  party. 
But  it  is  another  thing  if  ho  is  a  person 
who  cannot,  by  law,  contract.  That  a 
contracting  party  must  be  produced  I 
think  is  beyond  doubt.  .  .  When  the 
case  comes  to  be  silted,  it  is  almost  de- 
filled  by  a  simple  enunciation  of  the 
facts."  Tiie  other  Law  Lords  expressed 
similar  views. 

In  this  ease  the  holding  in  Rennie  w. 
Morris,  L.  R.  13  Eq.  203,  was  disaj)- 
proved.  There  it  was  held  that  by  the 
usai,'!'  iif  the  Stock  Exchange  the  jobber, 
or  dealer  in  shares,  is,  in  the  absence  of 
fraud,  discharged  from  liability  when  he 
ha.s  ;,'iven  the  name  of  the  transferee  and 
paid  for  tlie  shares.  Therefore,  where  a 
joiiber  contracted  on  the  Stock  Exchange 
to  purchase  the  plaintiff's  shares  in  a  com- 
pany, and  gave  in  to  the  plaintiff's  brokers 
a  til  kct  with  the  name  of  the  intended 
transferee,  which  had  been  passed  in  to 
liini ;  and,  after  the  execution  of  the  trans- 
fer, it  was  discovered  that  the  transferee 
was  an  infant,  of  which  neither  party  was 
j'reviously  aware  ;  and  the  plaintiff  became 
liable  foi-  calls ;  the  jobber  having  given 
the  jihiintiff  all  the  information  in  the 
matter  which  was  required  ;  in  a  suit  by 


the  plaintiff  against  the  jobber  seeking 
indemnity  for  the  shares,  the  court  held 
that,  nnder  tiie  (drcunistanees,  the  jobber 
was  discharged.  Rennie  r.  Morris,  L.R.  13 
Eq.  203.  The  two  cases  of  Maxted  v.  I'aine 
(1st  action),  L.  R.  4  Ex.  81  ;  (ind  action), 
L.  R.  4  Ex.  203;  L.  H.  6  Ex.  132,  exemplify 
the  distinction  established  by  the  authori- 
ties as  to  the  performance  or  nonqx'rform- 
anee  of  the  jol)ber's  contract.  In  the  first 
action,  the  defendant,  the  jobber,  pa.ssed 
the  name  of  a  person  as  purchaser  of  the 
shares  without  his  .sanction  or  authority. 
Tlie  seller,  therefo.e,  could  not  compel 
liim  to  accept  a  transfer  of  the  shares.  It 
was  accordingly  lield  that  the  jobber  was 
not  exonerated  from  liability  upon  his  con- 
tract. In  the  second  action,  the  jobber 
was  held  to  be  released  by  having  given 
the  name  of  a  nominee  of  the  real  buyer 
of  the  shares  ;  a  person,  it  is  true  of  no 
means,  but  capable  of  contracting,  who, 
in  con.sideration  of  a  small  sum  of  money, 
had  consented  to  allow  his  name  to  be 
used  as  tlie  proposed  transferee  of  the 
shares.  The  jobber's  contract,  therefore,  is 
of  this  description.  It  is  at  lirst  a  tem- 
porary and  conditional  contract ;  but  it 
becomes  absolute  upon  his  failure  to  fur- 
nish by  the  named  day  the  name  of  a  per- 
son capable  ami  willing  to  become  the 
transferee  of  the  shares,  so  that  the  seller 
by  executing  a  transfer  may  make  with 
him  a  new  contract  in  substitution  of  the 
original  one  with  the  jobber.  This  being 
the  .iature  of  a  jobber's  contract,  it  follow.s 
as  a  conseijuence  that  he  does  not  perform 
what  he  undertakes  by  giving  the  name  of 
a  person  umler  disability,  with  whom  no 
new  binding  ('ontract  could  be  made,  to 
be  substituted  for  his  own.  Nickalls  v. 
Merry,  L.  I!.  7  H.  L.  530,  544,  per  Lord 
Chelmsfonl.     See  Allen  r.  (Jraves,  L.  R. 

5  Q.  B.  478  ;  Bowring  v.  Shepherd,  L.  R. 

6  Q.  H.  .^09  ;  Paine  v.  Hutchinson,  L.  R. 
6  Kx.  132;  Shejihard  r.  Murphy,  L.  R.  3 
C.  r.  112  ;  Castellan  v.  Hob.son,  L.  R.  10 
Eq.  47  ;  Stikeman  t'.  Pawson,  1  Do  G.  & 
Sm.  90  ;  Nelson  v.  Stocker,  4  De  G.  &  J. 
458;  Shepherd  v.  Gillespie,  L.  R.  5  Eq. 
293  ;  Duncan  v.  Hill,  L.  R.  6  Ex.  255  ; 
Weston's  Case,  L.  R.  5  Ch.  614  ;  Dent  v. 


% 


y 


324 


COMMENTARIES  ON   SALES. 


[book  II. 


V'i 


'i  1 1 


Mil 


A.  read  a  prospectus  issued  by  certain  persons,  the  directors  of 
a  company,  which  proposed  to  carry  on  the  business  of  mining, 
and  getting  and  crushing  minerals  in  connection  therewith,  and, 
on  the  faith  of  the  representations  there  made,  among  others  of  a 
similar  nature,  that  a  valuable  mine  in  America  had  been  con- 
tracted for  (the  claims  in  which  were  described  as  very  profit- 
able), wrote  to  apply  for  shares.  It  turned  out  that  tho  mine 
contracted  for  was  valueless.  On  Dec.  30, 1805,  this  fact,  with- 
out the  particulars,  was  communicated  to  him  in  a  circular  sent 
out  by  the  directors.  On  Jan.  19,  a  second  circular  explained  the 
particulars,  and  announced  that  another  and  a  really  valuahlo 
mine  had  been  purchased  by  the  agents  sent  to  America  by  the 
directors.  On  Feb.  6, 1866,  A.  filed  his  bill  to  be  relieved  from 
his  shares ;  to  be  repaid  the  money  he  had  already  paid  on  their 
allotment,  and  to  restrain  the  directors  from  suing  him  on  calls. 
On  April  29,  an  injunction  to  restrain  was  grunted.^  On  the 
27th,  a  petition  was  presented  for  an  order  to  wind  up  the  com- 
pany. On  ^lay  28,  a  winding-up  order  was  granted,  A.'s  name 
being  placed  on  the  list  of  contributories.  On  July  19,  A.  took 
out  a  summons  to  have  his  name  removed  from  the  list ;  bnt  his 
application  was,  on  July  13,  refused  by  the  Master  of  the  Rolls.'-  On 
appeal,  the  Lords  Justices  ordered  A.'s  name  to  be  removed  from 
the  list.3  The  defendants  then  appealed  to  the  House  of  Lords,* 
when  the  decision  of  the  Lords  Justices  was  affirmed.  Tho  con- 
tract being  ab  initio  voidable,  tnc  House  of  Lords  held  that  the 
agreement  subsisted  until  rescinded ;  that  is  to  say,  until  re- 
scinded by  the  declaration  of  him  who  was  sought  to  bo  bound 
by  it,  that  he  no  longer  accepted  the  agreement,  but  entirely  re- 
jected and  repudiated  it.  Tlie  moment  the  company  wcic  told 
that  the  contract  was  rejected,  and  that  he  claimed  no  interest 
luider  their  fraudulent  act,  it  was  their  duty  (to  spare  all  further 
controversy)  to  have  removed  his  Jiame,  which  could  no  longer 
be  retained  there,  the  contract  having  been  avoided.  This  not 
having  been  done,  and  the  respondent  having  filed  his  bill,  i)ray- 
ing  to  have  his  name  removed  from  the  lists  of  the  company,  he 
was  entitled  to  have  his  name  i*emovcd,  even  though  between  tho 
date  of  his  filing  his  bill  and  the  decree  of  the  court  upon  it  an 
order  had  been  obtained  to  wind  up  the  company ;  the  "  rescis- 
sion" of  the  contract,  as  far  as  the  rescission  is  necessary  to 

Nickalls,   22  W.  R.    218  ;    Richardson's  i  Smith    r.    Thp   Roose    lUvcr  Silvii 

Case,    L.    R.    19   Eq.    588  ;   Hawkins  v.     Mining  Co.,  L.  U.  2  Eq.  2(il. 
Maltby,  L.  R.  6  Eq.  SO.")  ;  L.  R.  4  Cli.  200  ;  2  /^rf.  36  L.  R.  Ch.  385. 

Hofrkinson  v.  Kelly,  L.  R.  6  Eq.  496  ;  »  Ibid.  L.  R.  2  Ch.  Ap.  004. 

Maxted  v.  Morris,  21  L.  J.  N.  s.  535.  *  Reese    River  Silver  Mining  Co.  t\ 

Smith,  L.  B.  4  H.  L.  64. 


PART  v.] 


CORPORATIONS. 


825 


lie  the  act  of  a  court  of  competent  authority,  dating  from  the 
moment  when  proceedings  were  taken  invoking  the  aid  of  that 
competent  authority,  so  that  the  party  seeking  such  aid  is  not  to 
lie  iillectcd  by  the  subsequent  acts  of  the  company  or  its  credit- 
ors. Lord  Wcstbury,  on  the  ground  that  it  was  necessary  to  be 
extremely  cautious  in  tlie  case,  in  view  of  the  numerous  dicta  and 
dccisi(ms  bearing  on  it,  based  his  opinion  in  the  case  on  the  dis- 
tiniiiiishing  feature  in  it,  that  a  suit  was  instituted,  and  was  in 
lull  progress,  and  had  given  birth  to  a  judicial  order  at  the  in- 
stance of  the  respondent,  anterior  io  the  making  of  the  winding- 
up  order. ^ 

In  Henderson  v.  Lacon,^  where  there  was  misrepresentation 
in  the  jirospoetus,  issued  by  the  authority  of  the  directors,  In 
re  Reese  River  Company,  Smith's  Case,^  was  followed ;  and  the 
plaint  ilV,  who  had  bought  shares  in  the  conijiany,  on  the  faith  of 
the  prospectus,  and  had  paid  dej)osit  and  allotment  on  account 
of  the  purchase  of  shares,  had  a  decree  against  the  directors  and 
the  company  to  have  these  repaid  and  to  have  his  name  removed 
from  the  register  of  shareholders.* 


I  1 1 


i 


>  L.  R.  4  II.  L.,  nt  p.  76.  In  dealins 
with  tlio  iiuestion  of  fraud  in  this  ca.so, 
Lord  Caiiiis  s.iid  ;  "As  to  the  first  part  of 
till-  case,  namely,  that  whiuli  rests  ujion 
tliL'  rif,'hts  of  the  resiiondent,  apart  from 
the  ciivumstances  of  the  winding  up  of 
the  coiiijiany,  to  repudiate  his  shares  in 
the  eniii|iany,  I  never  have  entertained, 
and  1  certainly  do  not  now  entertain,  any 
doiilit ;  and  I  hardly  think  that  it  was 
gnively  ar<;iied  at  the  bar  that  in  this  case 
a  fraud  had  not  been  connnitted  against  the 
resiiondent.  When  I  say  'a  fraud,'  I  do 
not  enter  into  any  (luostion  with  regard  to 
the  ini]iutation  of  what  may  be  called 
fraud  in  the  more  invidious  sen.se  against 
tlie  directors.  I  think  it  may  be  quite 
liossilile  tliat  they  were  ignorant  of  the 
truth  of  the  statements  made  in  their 
Iirospectns.  But  I  appreheml  it  to  be  the 
ride  of  hiw,  that  if  persons  take  upon  them- 
.selves  to  make  assertions  as  to  which  they 
are  ifjnorimt  whether  they  are  true  or  un- 
true, they  must,  in  a  civil  point  of  view, 
Ik-  hehl  iis  responsible  as  if  they  had 
inserted  that  which  they  knew  to  be  un- 
true. I'pon  that  part  of  the  case  I  appre- 
hend that  there  is  no  doubt."  Reese 
Hiver  .Silver  Mining  Co.  v.  Smith,  L.  R.  4 
H.  L.  at  p.  79.  See  Central  Ry.  (.'o.  of 
Venezufda  v.  Kisnh,  L.  U.  2  H.  L.  99  ; 
Ayre's  Case,  2.^)  Beav.  513  ;  Rawlins  v. 
Wiekhani,  3  De  G.  &  J.  304  ;  Oakes  v. 
Tuniuand,  L.  R.  2  H.  L.  325. 
"  L.  R.  5  Eq.  249. 


8  L.  R.  2  Ch.  Ap.  604  ;  L.  R.  4  II.  L. 
64. 

*  Those  who  issue  a  prospectus  holding 
out  to  the  public  the  great  advantages 
which  will  accrue  to  persons  who  will  take 
shares  in  a  proposed  undertaking,  and  in- 
viting them  to  take  .shares  on  the  faith  of 
tlie  representations  therein  contained,  are 
bound  to  state  cve''ything  with  strict  and 
scrupulous  accuracy,  and  not  only  to 
abstain  from  stating  as  fact  that  which  is 
not  .so,  but  to  omit  no  one  fact  within 
their  knowledge,  the  existence  of  winch 
might  in  any  degree  atfect  the  nature,  or 
extent,  or  quality  of  the  ]>rivilegcs  and 
advantages  which  the  prosjM'ctus  holds 
out  as  inducements  to  take  shares  ;  and 
they  have  no  right  to  turn  round  upon 
those  who  refuse  to  fulfil  their  contracts 
to  take  .shares,  and  say  to  them,  "You 
ought  to  have  been  more  prudent,  more 
circumspect,  more  cautious,  more  vigilant ; 
you  ought,  Viy  aiiplying  your  reasoning 
powers,  to  have  concluded  that  otir  repre- 
sentations could  not  be  true  in  the  sense 
which  the  language  we  used  in  the  pro- 
spectus naturally  and  fairly  imports." 
New  Brunswick  &  Canada  Ry.,  &c.  Co.  v. 
Muggeridgo,  1  Dr.  k  Urn.  363,  382,  per 
Sir  Richard  Kindensley  ;  referred  to  with 
marked  approval  by  Sir  W.  Page  Wood, 
who  says  :  "  In  this  instance  it  ai>pears  to 
me  that  the  scienter  is  clearly  fixed  upon 
the  directors,  from  the  moment  yotj  find  a 
representation  concerning  their  own  acta 
which  is  incorrecc,  and  which  they  must 


i-''  I 


s 


■m 


\'i- 


*? , 


I  Ih 


\\ 


' !  . 


ill'!  i^:'r ' 


826 


COMMENTARIES  ON  SALES. 


[book  II. 


A  bill  was  filed  by  the  purchaser  of  shares  to  have  the  purchase 
declared  void  on  the  ground  of  fraud.  The  bill  having  been  dis- 
missed by  Stuart,  V.  C. ;  on  appeal  to  the  Lords  Justices,  the  orilir 
of  the  Vice-Chancellor  was  reversed.^  On  appeal  to  the  House  of 
Lords,  the  judgment  of  the  Lords  Justices  was  alhrmed.'^  In  the 
decision  of  the  case,  the  following  principles  were  cstablislKul : — 

First.  Where  a  person  believes  that  ho  has  been  misled  by  ropre- 
sentations  which  arc  false  or  deceptive,  into  taking  shares  iu  a 
proposed  company,  it  is  his  duty  to  raise  the  objection  at  an  early 
period,  and  to  be  guilty  of  no  needless  delay. 

Seooml.  The  same  rules  as  to  false  or  deceptive  representutioiis 
which  are  applicable  to  contracts  between  individuals,  are  alsoapidi- 
cable  to  contracts  between  an  individual  and  a  C(nnpany  ;  therolore, 
no  misstatement  or  concealment  of  any  material  facts  or  circum- 
stances ought  to  be  permitted  in  a  prospectus  issued  to  invite  ])«- 
sons  to  become  shareholders  in  a  projected  company. 

Third.  The  public  are,  in  such  a  case,  entitled  to  have  the  same 
opportunity  of  judging  of  everything  material  to  ii  knowlodixo  of 
the  true  character  of  the  undertaking  as  the  promoters  thcmsolves 
possess. 

Fourth.  Where  there  has  been  fraudulent  misrepresentation,  or 
wilful  concealment  of  facts  by  whicli  a  person  has  been  induced  to 
enter  into  a  contract,  it  is  no  answer  to  his  claim  to  be  relieved 
from  it  that  he  might  have  known  the  truth  by  proper  inquii y. 

Fifth.  The  phrase  "  available  capital  of  the  company  "  is  not  a 
true,  but  is  a  deceptive  description  of  capital,  which  may  be  raised 
under  the  borrowing  powers  conferred  upon  directors. 

Sixth.  Where  a  prospectus  described  a  contract  for  the  con- 
struction of  a  line  of  railway  as  entered  into  at  a  "  price  consid- 
erably within  the  available  capital  of  the  company,"  aud  the  facts 
were  that,  from  the  nominal  capital  of  £500,000  were  to  be  de- 
ducted X50,000  as  the  price  of  purchasing  the  concession  to  make 
the  railway,  and  the  contract  price  for  making  it  was  £420,000, 
the  representation  was  held  to  be  untrue  and  deceptive. 

be  tnkoii  to  have  known  to  be  incorrect, 
and  to  have  knowin<5ly  stated,  and  thereby 
to  have  misled  the  party  complaining  of 
the  misrepresentation.  I  must  say  1  think 
the  result  of  all  the  cases  which  have  oc- 
curred shows  the  great  value  of  that  goMen 
legacy,  if  I  may  so  term  it,  which  has 
been  left  to  us  by  Sir  Richard  Kindcrsley, 
who  has  condensed  in  a  few  words  the 
whole  doctrine  as  to  the  rule  of  conduct  be- 
tween shareholders  and  their  directors,  in 
the  case  of  the  New  Brunswick  &  Canada 
Ry.  Co.  V.  Muggeridge,  1  Dr.  &  Sm. 
363;  a  case  cited  with  approbation  in  the 
case  of  the  Central  Railway  Co.  of  Vene- 


zuela V.  Kisch,  L.  R.  2  H.  L.  11;?,  in  tlie 
House  of  Lords."  Henderson  v.  i.innii, 
L.  R.  5  Eq.  2I!>,  2()-2.  See  Ciinvslmy  c. 
Thornton,  7  Siiu.  391  ;  Atwood  v.  S.iwll. 
6  CI.  &  F.  232 ;  Hallows  v.  Yvnw,  L.  W- 
3  Ell.  520  ;  Warren  v.  Richardson,  1  Voii. 
Ex.  Eci.  1  ;  Clement  n.  Tasburf,'li.  1  .l:ii'-  'i 
W.  112  ;  Cadinan  v.  Horner,  IS  Vcs.  lid  ; 
Conyt)eare  v.  New  Brunswick  .i:  i  iiiiii'li 
Co.,  29  L.  J.  Ch.  435  ;  AK/rarniaii  Iron- 
woiks  V.  Wickens,  L.  R.  5  E(i.  iS,'),  iinJ 
cases  there  cited. 

1  Centrivl  Railway  Co.  of  Venezuela  v. 
Kisch,  3  De  G.  J.  &  S.  122. 

a  Ihid.  L.  R.  2  H.  L.  99. 


[book  II. 


PART  V.]" 


CORPORATIONS. 


827 


purchase 
been  (lis- 
the  order 
!  House  of 
1.2  la  the 
ilishtnl :  — 
I  by  ro  pre- 
pares in  a 
it  an  early 

iseutations 
jalsoaitpli- 
,  thcrofiji'c, 
or  circum- 
iuvitc  per- 

•c  the  same 
owloilge  of 
themselves 

cntatlon,  or 

I  induced  to 

be  relieved 

inquiry, 
y  "  is  not  a 

ly  be  raised 

11-  the  con- 
Irice  consid- 
[1(1  the  facts 
0  to  be  de- 
Ion  to  make 
je  420,000, 


IL.  li:?,  ill  Oie 

koll  V.  l.iu'iill, 
I'l'  Criiwsliay  r. 
|\vo.)il  V.  S.iwll. 
.  Fi'inii',  !'■  1^' 
lanlsoii,  1  V>Hi. 
l)Ui^!li.  1  •':"'• '^ 

]•,  18  Vcs.  lit'; 

|.,.i-iinniin  Iron- 
Ivi.  ii'>,  ii'w 

If  Venezuela  f. 


Seventh.  Where  a  prospectus  of  a  railway  company  stated  that 
"  the  cnjrinccr's  report,  maps,  plans,  etc.,  may  be  inspected,  and 
further  information  obtained  at  the  offices  of  the  company;"  an 
applicant  for  shares  signed  the  printed  form  of  application,  in 
which,  as  usual,  it  was  stated  that  he  agreed  to  be  bound  by  the 
conditions  and  regulations  contained  in  the  memorandum  and  ar- 
ticles of  association.  An  examination  of  all  of  these  papers  would 
have  afforded  him  the  information,  the  want  of  which  he  alleged 
as  a  ground  for  rescinding  the  contract ;  but,  trusting  to  the 
fraudulent  representations  made  to  him  with  reference  to  them, 
he  dill  not  examine  them  all :  Held,  that  his  neglect  to  do  so  was 
no  answer  to  his  demand  to  bo  relieved  from  the  contract.^ 

A  broker  employed  by  the  plaintiff  to  purchase  shares,  which 
the  plaintiff  paid  for,  procured  the  instrument  of  transfer  to  the 
plaintiff,  and  the  plaintiff's  signature  thereto,  and  received  from 
the  plaintiff  the  certificates  and  transfer  for  the  purpose  of  regis- 
tration. Soon  afterwards  he  fraudulently  procured  the  plaintiff 
to  cancel  his  signature  to  the  transfer,  and,  by  means  of  the  can 
colled  transfer  and  the  certificates,  induced  the  vendor  to  execute 
a  fresh  transfer  to  himself,  and  thereupon  procured  the  shares 
to  1)0  registered  in  his  own  name,  and  then  mortgaged  them  to  one 
of  the  defendants.  On  the  part  of  the  innocent  mortgagee,  it  was 
claimed  that  the  principle  of  the  court  of  equity  is,  that  where  the 
owner  of  pro})erty  puts  it  into  the  power  of  another  to  represent 
himself  as  the  owner,  and  to  obtain  credit  from  third  persons  in 
that  character,  the  loss  must  fall  on  the  true  owner,  rather  than 
on  those  who  have  advanced  their  money  f)on<t  fiJc  and  without 
notice ;  for  which  Dodds  v.  Hills,^  and  Perry  llerrick  v.  Attwood,'^ 


•  When  onco  it  is  established  that 
there  ha.s  lu'cii  any  fraudnlent  niisn'iire- 
feiitiition  or  wilfnl  concealment  l>y  whicli 
a  iit'isoii  h.is  been  induced  to  enter  into  a 
coiitniit,  it  is  no  answer  to  iiis  claim  to 
he  relieved  from  it  to  tell  him  that  he 
might  have  known  the  truth  by  proper 
ini|iiiry.  He  has  a  rif,'lit  to  retort  upon 
his  ohjeetor,  "  Vou,  at  least,  who  have 
stated  what  is  untrue,  or  have  concealed 
the  tnitii,  for  the  jiurpose  of  (h'awinj;  mo 
into  11  eoiitraei,  cannot  accuse  >nc  of  want 
of  caution  because  I  relied  implicitly  uj)on 
your  fiirness  and  honesty."  Per  Lord 
Chehnsford.  in  Central  Ky.  Co.  of  Vene- 
zuela V.  Kisch,  L.  U.  2  "ll.  L.  99,  121. 
hord  l.yndlmrst,  in  the  case  of  Small  v. 
Attvvood,  (5  CI.  &  F.  232,  395,  said: 
"Where  re]iresentation3  are  made  with 
respect  to  the  nature  and  character  of 
property  which  is  to  become  the  subject 
-'   Muvhiise   atfectinj;   the  value  of  that 


of 


pro[ierty,  and  those  representations  after- 


wards turn  out  to  be  incorrect  and  false, 
to  the  knowledj,'e  of  the  party  making 
them,  a  foundation  is  laid  for  maintain- 
in>;  an  action  in  a  court  of  common  law 
to  recover  d:imaj,'es  for  the  deceit  so  j)rac- 
tiseil ;  and  in  a  court  of  equity  a  founda- 
tion is  laid  for  setlinj?  aside  the  contract 
which  was  founded  upon  that  basis."  And 
in  the  case  of  Dobell  v.  Stevens,  3  B.  &  C. 
623,  to  which  he  refers  as  an  authority  in 
supi)ort  of  the  jjroposition,  whi(di  was  an 
action  for  deceit  in  falsely  representing 
the  amoimt  of  the  business  done  in  a 
publicdiouse,  the  iiurchaser  was  held  to 
be  entitled  to  recover  damages,  although 
the  books  were  in  the  house,  and  he  might 
have  had  access  to  them  if  he  thought 
proper.  See  Ship's  Case,  2  De  G.  ,1.  &  S. 
544  ;  Jennings  v.  Hroughton,  17  Heav. 
234;  Kawlins  r.  Wickham,  3  Ue  G.  &  J. 
304. 

2  2  H.  &  M.  424. 

»  2  De  G.  &  J.  21. 


ill 


!  ■ : ! 


lUtl 


h 


t\ 


828 


COMMENTARIES  OM   SALES. 


[book  II. 


IIh'h 


wcro  cited.  But  thiH  conteniion  did  not  prevail.  It  was  held, 
that  as  there  was  no  negligence  or  laches  proved  against  tiie 
plaintiff,  his  prior  and  better  title  must  prevail  over  that  of  the 
mortgagee ;  and,  as  the  effect  of  the  first  transfer  was  not  de- 
stroyed by  the  cancellation  fraudulently  procured,  the  registration 
in  the  name  of  the  broker,  and  the  transfer  to  his  mortgagee, 
were  decreed  to  be  set  aside. ^ 

But  In  re  Overend,  Gurney  and  Company,  Ex  parte  Oakos  and 
Peek,"  the  principle  that,  where  one  of  two  innocent  parties  must 
suffer  from  the  fraud  of  a  third,  it  should  be  the  party  who,  by  his 
negligence  or  supineness,  has  enabled  the  third  party  to  commit 
that  fraud,  was  freely  applied  by  Sir  R.  Malins,  V.  C.  The  <iue8- 
tion  in  this  case  arose  between  shareholders  who  had,  from  tlie 
fraudulent  representations  of  the  directors  of  the  company,  boon  in- 
duced to  take  stock  in  it,  and  the  creditors,  who,  as  described  by 
the  court,  were  "  even  more  innocent,  if  possible,  than  the  share- 
holders." The  case  was  argued  at  very  groat  length  by  brilliant 
counsel,  and,  although  the  innocent  shareholders  had  been  already 
involved  in  enormous  losses,  their  application  to  have  their  names 
removed  from  the  register  of  members  was  refused,  and  it  was 
held  that,  although  they  had  been  induced  to  take  shares  and  to 
become  members  by  reason  of  the  fraudulent  concealment  or  mis- 
representation of  the  directors,  they  were  not  ent'.tlcd  to  relief  as 
against  the  still  more  innocent  creditors. 

It  was  conceded  on  both  sides  that  i  contract  induced  by  fraud 
was  voidable  only,  and  not  absolutely  " ' :  and  that  innocent 
parties  acting  on  the  faith  of  it  until  the  Co  •  <.ct  was  avoided 
were  protected.  But,  it  was  contended,  that  the  ..'^ole  doctrine 
comprised  in  these  two  propositions  applied  only  to  cases  of  the 
delivery  of  goods,  or  the  delivery,  by  the  fraudulent  possessor,  of 
some  legal  symbol  of  property,  the  possession  of  which  is  prima 
facie  evidence  of  property  in  the  possessor,  —  tli  delivery  of 
such  a  symbol  of  property  to  the  fraudulent  ^loer,  who,  having 
this  symbol  of  property  in  his  possession,  pi*  es  it  for  value  to  an 
innocent  purchaser,  and  who  therefore  asks  to  be  protected.  It 
was  claimed  that  the  doctrine  was  suited  only  to  that  class  of 
cases  which  implied  that  the  innocent  purchaser  was  acting  on  -he 
faith  of  the  specific  contract  in  question,  —  that  it  must  be  u  direct 
acting  upon  the  faith  of  a  specific  contract,  or  the  doctrine  does 
not  apply ;  and  that  the  principle  of  the  doctrine  could  have  no 


»  Donaldson  v.  Gillot,  L.  R.  3  Eq. 
274.  See  Taylor  v.  Great  Indian  Ry.  Co., 
4  De  G.  &  J.  559,  574  ;  Bank  of  Ireland 
V,  Trustees  of  Evans's  Charities,  5  H.  L. 
C.  389;  Ward  v.  South  Eastern  Ry.  Co., 


2  E.  &  E,  812;  Copeland  v.  North  Kastern 
liy.  Co.,  6  E.  &  B.  277;   Ri'g.  v.  Guiieral 
Cemetery  Co.,  «  E.  &  B.  415. 
a  L.  R.  3  Eti.  576. 


PART  v.] 


CORPORATIONS. 


829 


application  whatever  as  between  creditors  and  members  of  a  cor- 
poration proper.  But  this  attempt  at  rermiu}?  away  the  principle 
involved,  as  entirely  untenable,  necessarily  failed. 

Tlio  case  canio  up  again  on  appeal  to  the  House  of  Lords,^  when 
the  jiidgincut  of  Malins,  V.  C.,  was  aflirmed.  The  following, 
auioiii;  other  principles,  arc  laid  down  in  the  case :  — 

Firxf.  Where  a  ])erson  has  been,  by  the  fraudulent  misrepre- 
sentations of  directors,  or  by  their  fraudulent  concealment  of 
facts,  drawn  into  a  contract  to  purchase  shares  in  a  company,  the 
(jircctors  cannot  enforce  the  contract  against  him,  but  he  may  re- 
scind it ;  providing  he  do  so  within  a  reasonable  time. 

Second.  A  contract  induced  by  fraud  is  not  void,  but  voidable; 
and,  therefore,  though  the  jjcrsons  who  by  their  fraud  induced  it 
may  not  enforce  it,  other  persons  may,  in  conse(|uenco  of  it,  ac- 
qairc  interests  and  rights,  which  they  may  enforce  against  the 
party  who  has  been  so  induced  to  enter  into  it. 

Third.  The  direct  remedy  of  a  creditor  of  an  incorporated 
company  is  solely  against  the  company,  and  not  against  its  indi- 
vidual members,  as  upon  a  contract  with  them.  IJut,  though,  as 
between  the  company  and  the  member,  the  member  might  have  a 
good  legal  or  equitable  defence  to  a  call  upon  himself,  he  may  be 
liable  to  contribute  to  the  assets  of  the  company  required  for  the 
payment  of  the  company's  creditors. 

x'litrth.  Where  a  registered  memorandum  of  association  dif- 
fered from  the  prospectus  on  which  it  professed  to  be  founded, 
and  on  which,  as  setting  forth  the  true  objects  of  the  association, 
A.  had  become  a  shareholder;  though  he,  on  discovering  the  dif- 
ference, migiit  have  repudiated  his  shares,  he  could  not,  after  the 
failure  of  the  company,  relieve  himself  from  liability  to  contribute 
to  the  debts  of  the  association,  on  the  ground  that  he  had  been 
ignorant  of  something  which,  with  proper  diligence,  he  might 
have  known. 

Fift/i.  It  is  the  duty  of  a  person  taking  shares  in  a  company  to 
use  reasonable  diligence  in  making  himself  acqiiainted  with  the 
provisions  of  the  memorandum  of  association  ;  and  he  must  take 
the  consequences  of  his  neglect.  Thus,  where  A.  apjdied,  on  the 
faitli  of  statements  in  a  prospectus,  for  shares  in  a  company,  which 
were  allotted  to  him,  his  name  was  put  on  the  register  of  share- 
holders. At  the  end  of  nine  months,  the  company  failed,  and 
was  ordered  to  be  wound  up.  A.  then  applied  to  have  his  name 
removed  from  the  list  of  contributories,  on  grounds  of  fraudu- 
lent misrepresentation,  which  would  have  been  sufficient  to  have 
caused  his  application  to  be  granted,  if  it  had  been  made  promptly 

1  In  re  Overend,  Gurney  &  Co.,  Oakes  v.  Turquand,  L.  R.  2  H.  L.  325. 


i\ 


\\ 


I  ':!l 


■,■(  i 


Mmm 


330 


COMMENTARIES  ON  SALES. 


[book  II. 


before  the  failure.  It  was  held,  affirming  the  decision  of  Malins, 
V,  C,  that  it  was  properly  placed  there  and  could  not  be  removed, 
owing  to  the  rights  of  third  parties,  the  creditors,  which  had,  iu 
the  mean  time,  intervened.^ 

I'he  principle  of  Oakcs  v.  Turquand  ^  extends  to  tlio  voluntary 
winding  up  of  a  company  under  the  Companies'  Act,  18G2  and 
1807.  Where,  therefore,  a  company,  its  assets  being  insullicioiit 
to  meet  its  liabilities,  is  voluntarily  wound  up,  a  shareholder  in 
such  company,  who  has  been  induced  to  take  shares  by  the 
fraudulent  representation  of  its  directors,  cannot  I'epudiate  liis 
shares  nor  seek  to  rescind  a  contract  in  respect  of  them,  nor 
can  he  recover  back  from  the  company  money  paid  by  him  for 
the  shares.3 


1  In  re  Overeml,  Gurney  &  Co.,  Oakes 
V.  Tuniuand,  L.  It.  2  H.  L.  325.  This 
ca.se,  both  iu  the  couit  below  anil  in  the 
House  of  Lords,  followed  and  aiiproved 
Henderson  v.  lioyal  British  Bank,  7  K.  & 
B.  356,  where  it  was  decided  that  it  is  no 
defence  against  a  creditor  of  the  company 
that  the  siiareholdiu'  nj,'ainst  whom  exemi- 
tion  is  levied,  or  sought  to  be  levied,  was 
induced  to  become  a  shareholder  by  the 
fraud  of  the  eouipiiiv.  Lord  Campbell,  in 
this  Lise,  in  describing  th.o  attempt  of  a 
.shareh(dder  to  relieve  himself  from  lia- 
bility to  the  creditors  of  the  company, 
said  ;  "  It  would  be  monstwus  to  say 
that  lie,  having  become  a  partner  and  a 
shareludiler,  and  having  held  himself  out 
to  the  world  as  such,  and  having  .so  re- 
mained until  th(!  concern  stopped  pay- 
ment, could,  by  re])udiating  th>!  shares  on 
the  ground  tliat  he  had  been  defrauded, 
make,  himself  no  longi'r  a  sharehoMer,  and 
tlius  get  rid  of  his  liability  io  the  cred- 
itors of  the  bank,  who  had  given  credit  to 
it  on  tlie  faith  that  lie  was  a  shareholder. 
It  would  be  monstrous  injustice,  and  con- 
trary to  all  principle.  Wlietlur  h,<  could 
say  that  with  regard  to  otiier  shareholders 
not  privy  to  the  fraud,  we  ne.nl  not  say. 
There  may  be  some  dilliculty  aiiout  that. 
lint  that  is  not  tlie  (piestion  which  we 
have  to  determine ;  wluch  is  simply 
whctlK^r  this  is  ,in  answer  to  a  creditor 
who  ha.-i  given  trust  ujion  the  faith  of  his 
being  a  sliarehoMcr.  Supjiose  this  were 
a  conimou  partnerslii]),  and  that  there  was 
credit  given  to  tiic  tirm,  would  it  be  any 
answer  to  an  action  by  the  creditor  against 
one  of  the  partners  that  the  defendant  was 
fraudulently  induced  by  the  other  partners 
to  become  a  piirtner  ?  Inter. tc,  that  might 
bo  consiileriM'. ;  but  as  bi'tween  the  firm 
and  a  crediter,  it  is  a  matter  wliolly  im- 
material." Tills  ease  was  iui)iroved  and 
followed  in  Dorset!  v.  Harding,  1  C.  1$. 
N.  s.  5'2t,  632;  in  To  wis  v.  Harding,  lb. 


533;  and  in  Daniell  v.  The  Official  Man- 
ager  of  the  Royal  British  IJaiik,  1  H.  i 
N.  681.  In  these  cases  it  is  luM  that, 
where  it  is  .sought  to  charge  a  shaitliolJer 
for  the  liabilities  of  a  company  to  a  jiul^'- 
nient  creditor,  such  shareholder  caiiiint 
resist  the  claim  on  the  ground  tliut  lie 
was  induced  to  become  a  sharelioliliT  liy 
fraud  on  the  part  of  the  com[wiiy,  anil 
repudiated  the  shares  alter  the  coiniiaiiy 
had  become  bankrui)t,  but  as  soon  as  he 
discovered  the  fi'aud ;  the  Judgineiit  urwl- 
itor  being  no  party  to  the  traml.  .S,c 
further,  Bright  v.  Hutton,  3  II.  L.  Cas. 
341;  The  Bwlch  Mining  C'o.'s  Case,  L.ll. 

2  Ex.  324;  Mi.xcr's  Case,  4  De  C.  &  .J. 
575;  Clarke  «.  Dickson,  E.  B.  &  K.  143; 
Ship's  Case,  2  De  (i.  J.  &  S.  544;  Suwart's 
Case,  L.  li.  1  Cii.  App.  574  ;  Wibsur's 
Case,  L.  II.  2  Va\.  741;  Saundrrson  s  Case, 

3  De  O.  &  Sm.  66;  Dodgson's  Casr,  3  De 
<r.  &  Sill.  85;  Sutton's  Case,  3  De  (!.  .^  ^m. 
264;  Clia[mian  &  Barker's  Case,  b.  1!.  3  h\, 
361;  Bargate  v.  Shortridge,  6  H.  I,.  C'as. 
297;  White  v.  Garden,  10  C.  B.  SMU;  \\ 
jiosit  Life  Assur.  Co.  v.  Ayscougli,  6  E.  k 
B.  761;  Stevenson  v.  Newiiliani.  13  C.  B. 
285,  302;  Wilkinson's  Case,  L.  !!.  2  Ch. 
'Vp.  536  ;  Lawrence's  Case,  L.  H.  2  Ch. 
Ap.  412. 

•2  L.  11.  2  H.  L.  325. 

8  Stone  i\  Tlie  City  and  County  Bank, 
3  C.  P.  I).  282.  The  decision  in  this  case  is 
put  by  Lord  Justice  Ibamwell  c>ii  very  clear 
grounds,  thuM  ;  "It  was  urgid  liclniv  us 
that,  even  if  in  a  voluntary  win  tin;,'  u|i, 
a  pcr.son  wlio  has  been  imluced  to  lin-onie 
a  member  of  a  company  by  fnuid  (aiiiiot 
get  rid  of  his  liability  "by  lesriniliuf: 
within  a  reasonable  time  his  coiiiiai't  to 
take  shares,  and  must  bi^  iilaced  ii|i"n  the 
list  of  eontribntories  for  the  beiirlit  of  rivd- 
itors,  nevertheless,  as  between  liiiii-rlfan'l 
the  other  meinl)ers  of  the  compaiiy  with 
whom  he  has  liecome  associated  thnmnh 
the  fraud  of  their  agents,  he  n.ay  be  en- 


[book  II. 

ion  of  Mai  ins, 
3t  be  removed, 
which  had,  iu 

tlio  vohmtan- 
Vet,  1802  and 
ng'  iiisuilicicnt 
ihai'choldor  iu 
shares  by  the 
repudiate  his 
of  them,  nor 
id  by  him  for 


The  Offidal  Man- 

:,ish  Bank-,  1  H.  & 

I's  it  is  liflil  that, 

iiiii'gi!  a  shiiiuliuldtr 

jiuiiaiiy  to  a  jiul;^- 

iliari'holilt;!'  cumwt 

10  grouiul  that  he 

B  a  sliiircliolikr  by 

the  coiinnuiy,  and 

alter  the  coiii[iany 

but  as  soon  as  he 

he  Jiulginoiit  creJ- 

0  tile   I'nuiil.     Su 

^ton,  3  II.  L.  Cas. 

Co.'s  Cii.sc,  L.  H. 

ase,  4  De  C.  &  J. 

E.  B.  .^  K.  143; 

S.  r>44;  Stewart's 

574  ;  W.'lisicr'j 

iiliulri'soii  s  Case, 

{son's  Ca.-ii',  3  De 

use,  3  l)el!.A:Sm, 

,s  Ca.so,  L.  1!.  3  K'|, 

ge,  b  11.  !..  (.'as 

()('.  n.  i»l',t;  \k 

Avscdugh,  '"'  K'  ^ 

wiihaiii   13  C.  li. 

e,  L.  !!.  li  Ch. 

.    L.  U.  2  Ch, 


111  County  Rank, 
i(in  iu  tills  cisL'  is 

iiwcll  nil  vi'iy clear 

,s  nr<'i''l  lii'tiirc  us 
tiiry  win  iini;  "I'l 

niluVeil  to  liivoMii' 
IpV  IVaiicl  ralili''t 

ty  "l>y  ivsiniiiliuj; 
i".  hi.s  eoiiliai't  to 
I  placeil  \<\"<n  the 

the  hellrtitut'i-roJ- 
tweeii  hiiiiM'lf  anil 
ho  eotniiiiiiy  with 

i.ssoeiiite.l  tiin)ii};h 
ts,  he  n.ay  he  m- 


PART  v.] 


CORPORATIONS. 


831 


The  following  principles  were  laid  down  by  Chelmsford,  L.  C, 
iu  the  House  of  Lords  in  the  Western  Bank  of  Scotland  v.  Addie,^ 
which  Avas  a  suit  in  Scotland  to  rescind  a  share-taking  contract, 
and  for  restitutio  in  integrum,  or,  alternately,  for  damages. 

Fir^t.  Where  a  person  has  been  drawn  into  a  contract  to  pur- 
chase shares  belonging  to  a  company  by  fraudulent  misrepresen- 
tations of  the  directors,  and  the  directors  in  the  name  of  the 
company  seek  to  enforce  that  contract,  or  the  person  who  has 
i)een  deceived  institutes  a  suit  against  the  company  to  rescind  the 
contract  on  the  ground  of  fraud,  the  misrepresentations  are  im- 
putable to  the  company,  and  the  purchaser  cannot  be  lield  to  his 
contract,  because  a  company  cannot  retain  any  benefit  which  they 
have  obtained  through  the  fraud  of  their  agents.^ 


titled  to  recover  back  tlie  money  which  he 
has  paid.  I  cannot  assent  to  tliat  argu- 
lueut.  It  si'onis  to  nii,'  to  follow  that  ii 
shaivholder  is  a  member  of  the  conniaiiy 
iur  all  |iur|ioses,  and  that  tlie  remedy  of  a 
[K'rsDii  who  has  been  indueed  to  become  a 
sliai'elioKlei'  by  fiMiid  of  the  'ompany,  is 
by  an  action  (n  uiiliiiuidated  damages, 
aiul  not  by  an  action  to  recover  as  a  debt 
line  to  him  the  money  which  ho  has  been 
iinluied  to  part  with.  Counsel  contended 
that  tlu!  reason  why  a  defiauded  share- 
holilcr  is  liable  to  the  creditors  of  the 
coiii|iaiiy  is,  that  having  held  himself  out 
as  a  nienilier,  he  is  estopped  from  saying 
that  lie  (iiiglit  not  to  be  a  contributory 
upon  the  insilveney  of  the  company.  I 
ihnilit  whether  a  shareholder  in  liable  upon 
the  firmind  of  e.stop[)el.  I  think  his  lia- 
bility de] lends  upon  a  principle  similar  to 
that  upon  which  the  decision  in  Kinsford 
V.  Merry,  11  K,\.  577,  i)ioceeded.  It  was 
there  held  that  if  the  owner  of  goods  sells 
them  owing  to  a  fraudulent  representa- 
tion, and  if  before  he  discovers  the  fraud 
aiiotlier  person  acquires  some  claim  to 
them,  he  cannot  afterwards  rescind  the 
eoutraet.  And  1  think  it  clear  upon  the 
authorities  that  wluMiever  the  rights  of 
other  persons  intervene,  a  contract  to  take 
shares,  though  induced  by  fraud,  cannot 
lie  rescinded.  ...  I  will'state  briefly  the 
lomliisions  at  which  I  have  arrived.  I 
think  that  the  les  dutioii  to  wind  up  vol- 
uutiirilv  is  good,  and  that  the  principle  of 
'takes  i:  Tiirnnand,  L.  ^  '"!  H.  L.  325, 
shows  that  .vhere  a  <  •■  .iiy  is  being 
Wound  iij)  cither  conipulsorily,  volun- 
tarily, or  under  the  supervision  of  the 
eourt.  it  is  too  late  to  rescind  a  contract 
to  take  shares,  alth.ingh  that  contract  has 

I'ecn  in.li! 1  '..,-  IVaiid."      Stone  v.  The 

Citviind  ('.unity  Bank,  3  C.  1'.  Div.  282, 
308. 

Tlie  cases  in  this  country  establish  tiie 


same  doctrine  as  that  laid  down  in  Kins- 
ford  V.  Merry,  11  Ex.  577.  liuniugton  v. 
Gerrish,  15  Mass.  156  ;  Mowry  v.  Walsli, 
SCowen,  238;  Root  v.  l''reiichi!  13  Wend. 
570  ;  Gilbert  v.  Ilud.son,  4  Me.  345.  See 
Hall  V.  Old  Talargoch  Lead  Manuf.  Co., 
3  Ch.  Div.  74i»,  where,  after  resolutii'Us 
l.'d  been  jiassed  and  conlirmed  for  the 
vol'.intary  winding  up  of  a  compaiiy,  a 
shareholder,  in  ignoranee  thereof,  coni- 
niencetl  an  action  against  the  company 
and  the  directors  to  liavc^  his  name  re- 
moved from  tlie  register,  for  a  rescis.sion 
of  his  contract  to  take  shares,  on  the 
ground  of  misrepresentation  in  the  pro- 
spectus, and  to  obtain  repayment  of  all 
moneys  paid,  and  an  indemnity  against 
future  liability  in  respect  of  his  shares  ; 
lie  having,  as  sooii  as  he  discovered  the 
fraud,  and  before  the  commencement  of 
the  wii'ding  up,  repudiated  his  shares,  and 
asked  the  directors  for  :i  rescission  of  the 
contract  and  return  of  his  money.  It  vvas 
held  that  the  relief  asked  in  the  actio" 
was  not  ii.cou.sistent  with  iiie  w'liding  up, 
and  a  mot:oii  by  the  voluntary  liiiuidator 
to  s^ay  alJ  further  proceedings  in  the  ac- 
tion ,\as  refused  with  costs.  Sec  Barwick 
V.  English  Joint  Stock  Bank,  L.  li.  2  V'.k. 
259;  Swil't  V.  Winterbotham,  L.  It.  8  Q.  B. 
244;  Swift  D.  .lew.sbury,  I,.  U.  1)  (J.  15.  301; 
III  re  Keynsham  Co.,  33  Beav.  123  ;  III, 
re  Life  Assoc,  of  England,  34  I,,  J.  Ch. 
64;  //(  re  Peninsular,  &c.  Banking  Co., 
35  Heav.  280;  In  re  Eire  Brick  and  lUue 
Clay  Co.,  L.  B.  17  E(|.  2fib. 

1  E.  It.  1  Sc.  &  !>.  Ap.  145. 

-  The  cases  jir.or  to  the  deeisioii  of 
Western  Bank  of  Scotland  v.  Addie.  E.  K. 
1  Sc,  &  1).  Ap.  145  (whore  the  hiw  was 
.settled  as  stated  in  the  text),  were  by  no 
means  harmonious.  In  Dodgson's  Case, 
3  Do  G.  &  Sm.  8,5,  Vice-Chanecllor  Knight 
Bruce  held  that  <liiectors  cannot  ht'  the 
ngt  nts  of  the  body  of  shareholders  to  com- 


,(. 


SI 


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882 


COMMENTARIES  ON  SALES. 


[book  II. 


Second.  If  a  person  makes  an  untrue  statement,  which  he  states 
to  be  the  result  of  a  bond  fide  belief  of  its  truth,  the  bona  fiJes  is 


\i   ;■ 


mit  a  fraud  ;  and  that  the  directors  only 
were  liable  for  their  eondiict.  This  hold- 
ing was  adopted  by  Viee-Chancellor  Parker 
in  Bernard's  dm;  3  Do  G.  &  Sni.  289, 
where  he  said  ;  "  Dodgson's  Case  shows 
that  the  directors  cannot  be  the  ag(!nts 
of  the  company  to  com  mit  a  fraud  ;  and, 
therefore,  even  if  the  stoekhohler  had 
been  induced  to  take  shares  by  the  mis- 
representation of  the  directors  that  was  no 
reason  why  he  should  not  be  a  contribu- 
tory," But  in  Brockwell's  Case,  4  Dru. 
205,  where  the  directors  of  the  Royal 
British  Bank,  in  their  publislied  reports, 
misrepresented  the  state  of  the  coin]>any, 
and  Brockwell,  relying  upon  the  truth  of 
the  reports,  puichased  some  new  shares 
which  were  issued  by  the  company,  upon 
which  it  was  sought  to  make  him  a 
contributory,  Vice-Chancellor  Kindersley 
held  that  the  reports  of  the  directors, 
designedly  publislied,  must  be  considered 
as  reports  of  the  company,  and  Brockwell 
was  removed  from  the  list  of  contributo- 
ries.  Hrockwell's  Case,  4  Dru.  20.5,  was 
overruled  by  Lord  Campbell  and  the  Lords 
Justices  in  Mixer's  Case,  4  De  G.  &  J.  575. 
Lord  Campbell,  in  his  judgment,  said  : 
"Clearly  there  was  fraud,  and  gross  fraud, 
on  the  part  of  the  directors,  and  I  have 
no  doubt  that  Mixer  was  induced  by 
fraud  to  take  his  shares.  I  think,  how- 
ever, that  it  was  a  fraud  on  the  part  of 
the  directors  which  cannot  be  attributed 
to  the  company,"  and  the  shareholder  was 
continued  upon  the  list  of  contributories. 
In  this  case  tliu  correct  reason  was  given 
wliy,  even  it  the  })urchase  of  shares  was 
induced  by  tlio  fraud  of  the  comjiany, 
the  person  defrauded  could  not  resist  his 
liability  to  contribute  as  a  shareholder. 
Lonl  Campbell  said  :  "  It  is  a  settled  rule 
that  a  contract  obtained  by  fraud  is  not 
void,  but  tlnit  the  party  defrauiled  iias  a 
right  to  avoitl  it  if  he  does  so  whiles  mat- 
ters remain  in  their  former  jiosition."  In 
the  case  of  the  National  Kxchange  Com- 
pany of  (Uasgow  u.  Drew,  2  Mac(i.  Sc.  Ap, 
103,  with  reference  to  the  responsibility  of 
a  comi)any  for  tlie  fraudulent  misrepresen- 
tations oi'  its  directors.  Lord  Cranwoith 
said  ;  "  What  is  the  consecjuence  of  the 
company  receiving  a  report  and  publish- 
ing it  to  the  world  ?  1  confess  that,  in 
my  opinion,  from  the  nature  of  things,  and 
from  the  exigeni'ies  of  society,  that  must  be 
taken,  as  between  the  company  and  third 
persons,  to  be  a  representation  by  the 
company.  The  company,  ns  an  abstract 
being,  can  represent  or  do  nothing.  It 
can  only  aCt  by  its  managers.  When, 
thercfoa*,  the  directors,  in  the  diacharg) 


of  their  duty,  fraudulently,  for  the  ]uir- 
pose  of  misleading  others  as  to  the  staii/ 
of  the  concerns  of  the  company,  rc[iri'sci); 
the  company  to  be  in  a  different  statu  fiom 
that  in  which  they  know  it  to  iw,  innl 
when  the  persons  to  whom  the  reprisciitu- 
tion  is  iiddressed  act  upon  it  in  tin'  huhil 
that  it  is  true,  I  canii'-^  think  that  suiuty 
can  go  on  without  treating  that  as  ;i  mi.-. 
representation  by  the  company."  In  the 
same  (;ase  Lord  St.  Leonards  said ;  "  1 
have  certainly  come  to  this  conclusion, 
that  if  representations  an;  niadi'  by  a  com- 
pany, fraudulently,  for  the  purpo.M'  of  in- 
liancing  the  value  of  their  stock,  ami  tlicv 
induce  a  third  ])er.son  to  purchase  stoik, 
those  representations  so  made  by  thorn  lur 
that  purpose  do  bind  the  comi>an y.  I  con- 
sider representations  by  the  dircturs  of  a 
company  as  representations  by  tlic  com- 
pany. Although  they  may  be  rcpivsonta- 
tions  made  to  the  comjiany  it  is  tlnir  own 
representation."  Lord  Westbury,  in  tlie 
New  Brunswick  &  Canada  lly.  Co.  r. 
Conybcare,  9  H.  L.  Cas.  725,  comurred 
with  these  views,  where  he  said  :  "  1  cer- 
tainly am  not  at  all  disi)osed  to  advise 
your  lordships  to  tiuow  any  doubt  iijion 
this  doctrine,  that  if  rejiorts  are  made  to 
the  shareholders  of  a  company  by  tlicir  di- 
rectors, and  the  rc[)orts  are  adopted  hy  tlii' 
shareholilers  at  one  of  the  appoiiiteil  meet- 
ings of  the  companj',  and  these  ivports 
are  afterwards  industriously  (■inuliitod, 
misrepresentations  must  undoubtedly  K 
taken  after  their  adoption  to  be  ini,sre]i- 
rcsentations  and  statements  mmle  with 
the  authority  of  the  eomjiany,  ;;nil  there- 
fore binding  tipon  the  company."  I.onl 
Cranworth,  in  this  same  case,  iidheringto 
the  views  he  had  expressed  in  the  National 
Bank  of  Glasgow  v.  Drew,  2  Miu'ij.  Sc.  \\<. 
103,  and  in  Hanger  v.  The  (Jreat  Wi'stcrii 
lly.  Co.,  5  H.  L.  Ca.s.  72,  Sti,  to  tlie  clfcct 
that  if  the  shareholder  had  been  iiidiicii! 
to  go  into  a  transaction  by  tli;it  which 
cotdd  be  called  a  fraudulent  repivsciita- 
tion  on  the  part  of  those  tliron,i,'h  whom 
the  negotiation  proceeded,  namely,  the  di- 
rectors, ♦hat  that  was  a  fniiid  tliiii  wiuild 
bind  the  company,  said;  "Tn  that  (i|iiiiiiMi 
I  entirely  adhere,  and  I  think  it  wonld 
have  been  apitlicable  in  this  case  if  it  had 
been  proved  that  there  hai'  neen  a  iVaiidii- 
lent  representation  or  conceahiieiit  liv 'he 
directors  in  order  to  induce  the  sliiiicludder 
to  purchase,  not  shares  in  the  market 
(that  is  a  very  different  thing),  but  '^lii"""'* 
belonging  to  the  company,  iiannlv,  for- 
f"ite<'.  shares,  if  the  direcu.in  or  tin-  see- 
r«  .ly  acting  for  them  liml  frainlnhntly 
represented  something  to  hiii!  wl;''  ""^ 


yt 


I'ART  v.] 


CORPORATIONS. 


333 


to  be  tested  by  considering  the  grounds  of  such  belief.  And  if 
an  untrue  statement  is  made,  founded  upon  a  belief  which  is  des- 
titute of  all  reasonable  grounds,  or  which  the  least  inquiry  would 
imracdiateiy  correct,  it  is  fairly  and  correctly  characterized  as 
misrepresentation  and  deceit. 

Third.  Although  the  directors  arc  merely  agents  of  the  com- 
pauy  themselves,  and,  therefore,  according  to  the  well-known  rule, 
tliey  could  not  depute  any  other  person  to  act  for  them,  yet  if 
they  employ  their  manager  to  make  false  rcpresentati<jns  of  the 
stability  of  the  company,  it  would  be  of  the  same  effect  as  if  made 
by  the  directors  themselves. 

Fourth.  If  the  person  who  has  been  induced  to  purchase  shares 
by  the  fraud  of  the  directors,  prefers,  instead  of  seeking  to  set 
aside  the  contract,  to  bring  an  action  for  damages  for  the  deceit, 
such  '11  action  cannot  be  maintained  against  the  company,  but 
o,.\\  !r       ^t  the  directors  personally. 

^  ;;o,  ;;•  1  uord  Cranworth  :  — 

iV;>''.  Corporate  bodies  may  bo  made  responsible  for  the  frauds 
of  their  agents  to  the  extent  to  which  the  company  has  profited 
iroiu  the  frauds ;  but  the  incorporated  company  cannot  be  sued 
for  frauds  committed  by  directors  before  the  incorporation. 

Second  It  is  necessarily  to  be  inferred  from  the  very  expres- 
sion r(')<tltutio  in  integrum,  that  relief  can  only  be  had  where  the 
party  .seeking  it  is  able  to  put  those  against  whom  it  is  asked  in 
the  same  situation  in  which  they  stood  when  the  contract  was 
entered  into.^ 


mitnio,  1,  then,  ailhcrc  to  the  opinion 
which  I  px|iross(Hl  in  '>'e  former  cases, 
that  tho  nmiiiiiny  woul'  Jji't  licon  bound 
by  thiit  IViinil.  r>ut  t'l  •  j'.inciple  cannot 
hi'  carrii.l  to  the  wih?  i  )igtli  ':!iat  I  have 
hoanl  siigiji'steil,  '  ai  ."  . ,  .hat  you  can 
hiiiii;  (III  iiriiiii  iig;  ns.  ,  I' C"  npany  upon 
tho  jjrniiiid  of  ileeei:  lie.  i^  -  i)i(>  directoVs 
li:ive  ddiic  an  net  whict  i*ii<.'lM  render 
tlicin  liiilih'  to  such  an   ai  Tliiit   I 

take  iiiit  til  be  tlie  hiw  of  tl\e  land  ;  nor 
do  I  hclirvc  that  it  would  be  the  law  of 
the  laiul  it  the  directors  were  the  ap'Uts 
III'  siiiiii'  ]uMso!),  not  a  company.  The 
i'niiil  timst  tic  a  fraud  that  is  either  jier- 
<'inal  DM  ihc  part  (if  the  individual  making 
it,  iir  soiiii'  fraud  whiel)  another  j)erson 
has  itiiiilinlly  authorized  him  to  be  guilty 
"f"  Ni\v  iliimsviii  k  &  Canada  Ily.  Co. 
f.  Conyhrare,  it  I  ■  .  Cms.  711,  73i).  See 
Kyrer.  liiunies',  ,  M  H.  L.  I'as.  97;  Cen- 
tral li.  (■„.  „r  \eii...-i<';;i  i\  Kisch,  r..  u. 

'-'  H.  I.,  m:  :   Dout 
II-  !/•  :i."il  ;   Krnest  r. 
Cas.  401  ;  Hiirnes  v. 

I'm.  4!»7,  .'■,•. 


Ayscough,  tj  E.  &  B.  763. 


•lii  i. 

V.  Shin,  I'-  K-  3 

Ni.hoUs,  6  H.  L. 

Pennell.   2   H.    L. 

Heposit  liife  Ass.  Co.  v. 


1  This  i.s  the  doctrine  of  the  civil  law. 
Calviiius,  Lux.  It  has  also  been  adujited 
into  the  common  law.  'J'lius,  it  was  held 
in  Clarke  v.  Dickson,  K.  B.  &  K.  i  18,  that 
a  person  induced  by  fraud  to  enter  into  a 
contract  under  which  he  pays  money  may, 
at  his  oplioi',  nscind  the  contract,  and 
recover  liack  the  price  as  money  had  and 
received  if  he  can  rrturii  wliat  he  has  re- 
ceived under  it.  But  when  he  can  no 
hin;,'cr  plarc  the  parties  in  statu  qim,  as  if 
he  lias  liecomc  unable  to  return  what  he  has 
received  in  the  same  plight  as  thai  in  wliich 
he  h:is  receivi'd  it,  the  riglit  to  rescind 
nil  hiiifier  exists  ;  and  his  remedy  must  ho 
by  iiU  action  fur  deceit,  and  not  for  money 
hail  .nid  n-eeived.  Cromi>tiin,  .1.,  said  in 
this  case  :  "When  once  it  is  .settled  that 
a  contraei  induccil  by  fraud  is  nut  void, 
but  voidalile  at  the  option  of  the  party 
defiaiidi'd,  it  seems  to  me  to  follow  that 
when  that  party  exercises  his  option  to 
rescind  the  contract  he  must  be  in  a  state 
<  rescind  ;  that  is,  ho  must  be  in  siieh  a 
situation  as  to  be  able  to  put  the  jiarties 
into  their  oriRinal  state  before  the  con- 
troct.    The  piairititr  must  rescind  in  Mo 


\h\ 


{M 


!! 


ii 


: 


834 


COMMENTARIES  ON   SALES. 


[book  II. 


Third.  Where  a  person  has  been  defrauded  by  directors,  and 
the  subsequent  acts  and  dealings  of  the  company  and  himself 
have  been  such  as  to  leave  him  no  remedy  but  an  action  for  tlic 
fraud,  he  must  seek  his  remedy  against  the  directors  personally. 

A  Scotch  company,  whose  nominal  capital  was  <£  10.3,000,  an- 
nounced that  £100,000  had  been  paid  up,  and  that  only  £5000 
could  be  called  for.  Relying  upon  this  representation,  a  ^vntk- 
man,  resident  in  London,  purchased,  as  a  transferee,  300  shares: 
and  paid  his  proportion  of  the  outstanding  <£oOOO  to  the  compaiiv, 
The  liquidator  alleged  that  this  gentleman  "  knew  or  ought  to  have 
known,"  that  the  company  was  a  bubble;  and  proposed  to  make 
a  call  upon  him  of  £30  for  each  of  his  shares ;  the  £100,000 
represented  as  actual  capital  not  having  been  paid  up.  The  appel- 
lant resisted  the  ap[):  ;  ''^".contending  that,  as  he  had  performed 
his  contract,  no  furthc»  iind  could  be  made  upon  him.  The 
Court  of  Session  of  Scoth.iid,  after  much  deliberation  and  differ- 
encc  of  opinion,  decided  in  favor  of  the  respondent,  the  liquidator.' 


or  not  at  nil.  Ho  cannot  both  keep  the 
shares  and  recover  tiie  whole  price.  That 
i.s  founiled  on  the  plainest  principle  of 
justice.  If  he  cannot  return  the  article 
he  must  keep  it,  and  sue  for  his  real  dam- 
age in  an  action  on  the  deceit.  Take  the 
case  of  a  butcher  buyinj;  live  eattl. ,  kill- 
ing them,  and  i^ven  selling  the  meat  to 
his  customers.  If  the  rule  of  law  were  as 
the  plaintiir  contend.s,  that  butcher  might, 
upon  discovering  a  fraud  on  the  ])art  of 
the  grazier  who  sold  him  the  cattle,  re- 
scinil  the  contract,  and  get  back  the  whole 
price  ;  but  Iiow  could  that  be  consistently 
with  justice  ?  The  true  doctrine  is  that  a 
party  can  never  repudiate  a  contract  after, 
by  his  own  act,  it  has  become  out  of  his 
power  to  restore  the  parties  to  their  origi- 
nal condition."  The  principle  was  laid 
down  by  Ijord  Kllenborough  in  Hunt  v. 
Silk,  5  F.ast,  i\\\,  that  where  a  contract  is 
to  be  rescinded  at  all  it  must  be  rescinded 
in  toll),  and  the  jtarties  i)ut  in  statu  quo. 

This  has  since  been  acted  upon  in  nu- 
merous cases  in  Ktigland  and  in  this  coun- 
try. Parke,  B.,  said,  in  Blackburn  v. 
Smith,  2  V.S..  783,  790,  "There  can  be  no 
rescission  of  the  contract  unless  the  parties 
can  bo  placed  in  statu  quo."  So,  in  Shef- 
field Nickid  Co.  V.  Unwin,  2  Q.  B.  Div, 
214,  2-23,  Lush,  J.,  said :  "A  contract  void- 
a!)le  for  fraud  cannot  be  avoided  when  the 
other  jiarty  cannot  be  restored  to  his  statim 
pto ;  for  a  contract  cannot  be  rescinded 
in  part  and  stand  good  for  the  residue. 
If  it  cannot  be  rescinded  m  tot^)  it  cannot 
be  rescinde<l  at  all  ;  but  the  party  com- 

{daining   of  the  non-performance  or  the 
raud  must  resort  to  an  action  for  dam- 


ages." In  Clarke  v.  Dickson,  E.  H.  &  F.. 
148,  153,  counsel  said  :  "  It  is  huid  if  iill 
remedy  for  the  fraud  is  lost  wheie  the di- 
ceit  can  be  prolonged  fill  the  dicdvcil 
party  has  acted  on  it ; "  to  which  Ciomi'- 
ton,  J.,  replied  ;  "  All  remedy  is  not  lost. 
He  can  no  longer  rescind  the  contract, 
which  would  work  injustice  ;  but  lie  may 
bring  an  action  on  the  deceit,  and  ii't'i-vir 
his  real  damage."  And  Krle,  J.  :  "That 
was  the  case  of  Cole  v.  liishop,  K.  li.  &  K. 
150,  n.  The  purchaser  was  unable  In  treat 
the  contract  as  void  ab  initio ;  hut  in  a 
cross-action  tried  before  me,  of  liislui]ii!. 
Cole,  he  recovered  a  full  indoiniiity." 
And  Crorapton,  J.  :  "  When  yen  enun- 
ciate the  ])roposition  that  a  jiarty  lia.s  a 
right  to  rescind  you  involve  in  it  tin'  i[iiali- 
hcatiou,  if  the  state  of  things  is  sinli  that 
he  can  rescind.  If  you  an;  fraiidiileiitly 
induced  to  buy  a  cake  you  may  ivtiimit 
and  get  back  the  ju'ice  ;  but  you  (iiiiiiot 
both  eat  your  cake  and  return  yoiu'  ciikc." 
S<'e  Deposit  Life.  Ass.  t;.  AvscdUgli,  6  K.  k 
B.  761  i  Sully  V.  Frean,  U)  Kx.  r«:i.'> ;  l''i- 
guson  V.  Carrington.  i)  15.  k  C.  ;>'■> ;  Stnitt 
V.  Smith,  1  C.  M.  &  11.  312  ;  Caniiibell  i'. 
Fleming,  1  A.  &  F.  40;  llaiiKU-  v.  Ornvas, 
15  C.  B.  667  ;  Fitt  v.  Cassanet,  4  M.  &  C. 
903  ;  Beed  v.  Blandford,  2  Y.  &  ■'.  '-'iS ; 
Norton  v.  Young,  8  (Jreeid.  30  ;  .liuikins 
V.  Simpson,  14  Me.  364  ;  ("oolidge  r.  Brig- 
liam,  1  Met.  547  ;  Peters  v.  i-'w\\,  4 
Blackf.  515  ;  Brown  v.  Witter.  lO  Ohio, 
142;  Johnson  v.  Jackson,  27  iMiss.  498; 
Allen  I'.  Fdgerton.  3  Vt.  44J. 

'  Jamieson  v.  Waterhouse.  Scotch  Rep. 
3<1  .series,  vol.  vi.  p.  691 ;  Scotti.>,h  Jur., 
vol.  xl.  p.  306. 


PART  v.] 


CORPORATIONS. 


835 


,1 '  -S 


On  appeal,  the  House  of  Lords  held,  reversing  the  decree  of  the 
court  below,  — 

First.  That  the  liquidator  was  wrong,  the  shareholder  having 
done  all  that  could  legitimately  be  dcinauded  of  him  under  his 
contract. 

Second.  It  is  not  incumbent  on  a  shareholder  to  suspect  fraud 
or  institute  inquiries  where  all  seems  fair  and  conformable  to  the 
requirements  of  the  statutes. 

TltinL  Tlio  liability  of  a  shareholder  is  to  be  measured  by  his 
contract,  as  based  upon  the  statutory  documents,  which  are  regis- 
tered lor  the  purpose  of  protecting  the  shareholders  on  the  one 
hand,  and  the  creditors  on  the  other. 

F""rth.  The  court  cannot  expand  the  contract ;  nor  will  it  fix 
upon  a  party  any  engagement  larger  or  other  than  that  into  which 
he  has  entered. 

Fifth.  Tliere  is  nothing  to  warrant  a  contrary  doctrine  in  Over- 
end  k  Gurney  Case,^  where  the  shareholder's  contract  was  en- 
forced, but  in  no  respect  altered ;  the  contract,  as  it  existed  at 
the  time  of  the  winding  up,  being  the  sole  measure  of  liability. 

Sixth.  A  shareholder  has  a  right  to  stand  upon  his  contract, 
and  is  not  bound  beyond  it,  at  the  suit  of  the  liquidator,'^ 


1  I-,  U.  2  H.  L.  825. 

-  Wiitciiiousc  r.  Jiiiiucson,  L.  R.  2  Sc. 
k  I).  Ap.  21).  'I'lie  ()U('stion  is  put  very 
clcailyby  Lord  Hathcrk'y,  L.  C.  :  "The 
rual  and  siihstaiitial  question  appears  to 
W  this:  Wlietlicr  or  not  a  jiersou  taking 
sliarcs  in  a  <xinipany  "staMished  under  a 
(icfil  which  recites,  however  untruly,  tliat 
i'100,0IKl  has  been  paid,  and  engaging  by 
his  sijjiiature  to  that  deed  to  meet  all  the 
coiitritmtii)ns  whieh  remain  to  be  levied, 
but  wliicii  are  not  to  exceed  £5  a  share, 
the  rest  having  been  paid  ;  whether,  inore- 
oviM',  a  pi'ison  having  ]uiruliased  shares  in 
tile  niaikct  on  which  the  representation 
is  that  ill  (10  has  been  paid  up  on  eaeli 
share,  and  receiving  certilieates  of  thoso 
shares  signed  by  the  directors  themselves, 
who  Wfic  coiniietent  to  act  in  the  matter, 
anil  who  gave  such  certificates,  stating 
that  .tlliio  per  share  had  been  ]iaid  up, 
can  aftciward-i,  at  the  instiince  of  credit- 
ors of  tiie  company,  who  discover  that,  in 
truth,  III)  such  jiaytiient  has  ever  been 
mailc  by  tile  ori'_'iiiai  lioiders  of  the  shares, 
hut  tiiat  in  rcilily  tlie  shares  had  been 
tnki>n  ami  issued  to  the  jmblic  without 
tile  fact  being  known  tliat  while  they  were 
t'lflS  sliiircs  only  .€.">  or  some  very  small 
iimmint  liinl  been  paid  upon  them,  whether 
suih  a  shaiclioldcr  can  be  sued  on  behalf 
"I  the  cicilitors  of  tiio  company  for  the 
£100  ]icr  share  whi(!ii  remains  un]m(l  ; 
whether,  the  ijuestion  being  raised  between 


the  creditors  and  the  alleged  shareholder, 
the  shareliolder  can  set  u])  the  defence  that 
he  is  not  liable  to  the  creditors  whieh  ho 
has  contracted  to  i>ay.  "  In  answer  to  this 
Lord  llatherlcy,  with  whom  agreed  the 
whole  House,  said  :  "  I  confess,  after  some 
considerable  hesitation,  1  have  come  to  the 
conclusion  that  a  shareholder  is  entitled  to 
say  :  The  contract  I  have  entered  into  must 
be  found  in  the  deed  into  wiiich  I  have 
entered.  For  all  purposes  as  between  nie 
and  third  jicrsons  I  am  oidy  to  be  held  to 
have  entered  into  those  engagements  wliieh 
the  deed  itself  rejiresents  me  to  have  en- 
tcHMl  into  ;  and  as  regards  the  shaves  whieh 
I  have  takei\  and  purchased,  iiaving  a 
doenment  signed  by  those  who  are  ena- 
bled •■.ogive  siteh  a  certilicate,  certifying 
that  a  certain  amount  per  share  had  been 
])aid,  which  certilicate  is  entered  and  duly 
registered  as  the  act  re<|uires,  for  the  very 
l)iirpose  of  lU'otecting  the  sharehohlers  on 
the  one  hand  and  the  creditors  on  the 
other,  I  am  entitled  to  say,  no  fraud  be- 
ing chargeable  against  me,  that  1  am  only 
liable  to  the  extent  of  the  money  which 
appeared  by  the  certilicate  itself,  given  me 
bv  the  directors  of  the  company,  to  be  un- 
paid." 

The  marked  distinction  between  the  de- 
cision in  this  case  and  in  the  Overend  & 
Onrney  C'a.se,  L.  ]{.  2  H.  L.  325,  is  thus 
clearly  pointed  out  by  the  F,oril  (^iiancel- 
lor :  "  I  think  the  principles  upon  which 


■r^ 


41 


:i\ 


iil 


!: 


ill!.' 


m\.r 


i 


I  t    ;    1 
;  '   i  , 


in 


i< 


336 


COMMENTARIES  ON  SALES. 


[book  II, 


A  person  purchasing  cliattels  or  goods,  concerning  which  the 
vendor  makes  a  fraudulent  misrepresentation,  may.  on  findiiii' 


lii  ■^ 


M'. 


!:■'■■■¥ 


that  cnse  was  decided  liave  re«lly  no  bear- 
ing whatever  upon  the  present  question. 
There  Mr.  Oake.s  had  uniioubtedly  become 
a  member  of  the  company.  He  knew  all 
the  objects  for  which  it  was  founded,  and 
the  terms  of  its  constitution,  and  he 
entered  into  the  ordinary  engaqenients. 
Then  ho  said  :  True  it  is  I  have  entered 
into  those  engajjements ;  but  I  setik  to  bo 
relieved  from  tliein  because  1  was  induced 
to  enter  into  tliem  by  misrepresentations, 
without  which  I  shoidd  not  have  become 
a  shareliolder.  IJut  this  House  held  that 
whatever  rights  he  might  have  acquired 
against  those  who  made  the  fraudulent 
representations,  he  had  as  regarded  the 
outer  worhl  executed  an  instrument  by 
which  every  creditor  had  a  right  to  be- 
lieve that  he  was  bound,  and  that  he  could 
not  extricate  himself  after  the  winding-up, 
although  before  the  winding-up  lie  might 
have  instituted  proceedings  to  liberate  him- 
self from  tlie  engagenu-nts  into  which  he 
liad  been  led  by  tliose  misrepresentations," 
Waterhouse  v.  Jamieson,  L.  U.  2  So.  &  D. 
Ap.  at  p.  33. 

Lord  Cairns  said,  iu  the  case  of  In  re 
Duckworth,  L.  R.  2  Ch.  578,  "The  li(|ui- 
dator  represents  tiie  creditors  oiilii  because 
lie  represents  the  compatiy,  and  through  the 
company  the  rights  of  the  creditors  are  to 
be  enforced."  Lord  Westbury,  adopting 
this,  in  Waterhouse  v.  Jamieson,  L.  U. 
2  Sc.  &  I).  38,  comments  upon  it  thus ; 
"  Now,  here  the  appellant  is  a  bond  fide 
holder  of  shares,  upon  which,  no  doubt, 
there  was  a  false  statement  m.;ao  by  the 
company  of  which  he  had  no  knowledge, 
and  as  to  which  ho  was  under  no  obliga- 
tion to  inquire,  and  therefore  he  cannot 
be  subjected  to  liability  by  having  im- 
pufcd  to  him  a  knowledge  of  the  false- 
hood. Could  the  company  recover  against 
him  ?  If  there  had  been  no  winding-up 
order  the  question  would  not  have  admit- 
ted of  a  moment's  doubt,  and  the  winding- 
up  order  does  not  jilace  the  li<iuidator  iu 
a  better  position  against  the  shareholder 
than  the  company  were  in."  The  princi- 
])le  involved  in  this  case  is  of  the  highest 
practical  importance,  and  we  consider  the 
case  one  of  the  greatest  value  in  settling  a 
•  [uestion  which,  either  directly  or  in  strict 
analogy  thereto,  is  often  arising  in  connec- 
tion with  the  purchase  of  stock  in  corpo- 
rations. The  important  princiiile  decided 
by  the  case  is  that  as  long  as  a  purchaser 
of  stock  comjjlies  with  his  contract  he  is 
not,  either  to  the  company  or  to  the  cred- 
itors of  the  company,  liable  for  the  fraud 
of  the  company,  where  he  is  no  party  to 
such  fraud  in  their  misrepresentations  as 


to  the  amount  of  the  capital  which  has 
been  paid  in  ;  so  that  if  false  statiiiienu 
in  tlie  matter  have  been  made  by  the  com- 
pany witii  reference  thereto,  he  is  ii'it  IU- 
ble  either  to  the  company  or  its  civiIitDK 
in  respect  of  sucli  fraud,  but  in  iwUe 
oidy  to  the  extent  of  liis  contract  with  tW 
company.  Tlie  iiuestion  arose  in  tlie  fol. 
lowing  manner  :  In  the  judicial  wiiniin:;. 
up  of  a  limited  company  tiie  odicial  lii|ui. 
dator  presenteil  to  the  court  a  iietitimi  in 
which  he  alleged  that  certain  .•statiiiu'iits 
iu  tlie  articles  and  memorandum  orassoija- 
tion  with  reference  to  capital  thero  stattii 
to  have  been  paid  up  were  false  ;  that,  iu 
fact,  no  part  of  the  nominal  capital  iiail 
ever  been  paid  uj) ;  and  he  craved  llii'  court 
to  make  a  call  per  shaie  iu  excess  of  the 
sum  which  the  articles  and  meniKraiulum 
of  association  stated  to  be  the  aiiumnt  of 
unpaid  capital,  and  to  settle  the  list  uf 
contributories  so  as  to  include  not  only 
the  names  of  original  s^hareiioKlcr.s,  bii: 
also  of  certain  persons  who  subsci[ucnt  to 
the  formation  of  the  com[)any  had  ac- 
quired shares  from  original  sliarclmlders, 
and  who  disputed  their  liability  tor  more 
than  the  amount  per  share  which  a|i]iearoil 
to  be  unpaid  ex  facie  of  the  articles  of  ius- 
sociation  and  of  the  statutory  register. 
In  the  Scotch  court  it  was  helil,  six  of 
the  judges  dissenting,  tiiat  these  luTsoiis 
should  be  placed  on  the  list  of  contribu- 
tories, on  the  ground  (1)  that  the  limit  of 
liability  depends  not  on  the  lunm  lida 
of  purchasers  of  siiares,  but  on  the  i'aot 
v.'hether,  and  how  far,  the  amount  of  capi- 
tal represented  by  the  shares  is  paid  ufi 
or  remains  uniiaid  ;  (-)  tiiat  an  oilirial 
liquidator  is  not  e,ii<lein  per^ioiiii  with  the 
company,  but  represents  all  ])artics  inter- 
ested ;  and  (3)  tliat  for  the  purpose  of  en- 
forcing any  statutory  liability  of  the  slwre- 
holders  to  the  creditors  of  the  cmniiany, 
the  li(iuidator  rei)resents  the  crcditois.  -Vs 
we  have  seen,  this  holding  was  reveiseil  in 
the  House  of  Lords,  the  priiuipli'  beins 
adopted  there,  whicii  is  an  answer  to  the 
holding  of  the  majority  of  the  Scotch 
court,  as  was  laid  down  l>v  Lord  Cairns  in 
III  re  Duckworth,  L.  li."2  Ch.  :>78.  that 
"  the  liquidator  represents  the  creditors 
onli/  because  }ic  re/nrsenh  (lie  cnidinivii, 
ami  through  the  coiiipitnt/  the  rights  of  the 
creditors  are  to  be  enforceil."  .\s  I-'"^' 
Westbury  has  well  jmt  it:  "Tlw  rights 
of  creditors  against  the  sharehoMcis  ot  a 
company  \vhen  enforced  by  a  li(|iiiiiator 
must  be  enforced  by  iiim  in  riirht  of  the 
company.  What  is  to  be  paid  by  the 
.shareholders  is  to  be  recovered  in  that 
right.     What  is  due  to  the  company  is 


PAUT    v.] 


CORPORATIONS. 


837 


■H*    .k 


out  tlio  fraud,  retain  the  cliattels  or  the  goods,  and  have  Iiis  ac- 
tion to  locovei"  any  damages  he  has  sustained  by  reason  of  the 
fnuiil.'  Hut  the  same  i)rinciple  does  not  apply  to  shares  of  stock 
ill  a  joint  stock  company,  for  a  i)erson  induced  by  the  fraud  of  the 
agents  of  a  joint  stock  company  to  become  a  partner  in  tliat  com- 
|)any  can  bring  no  action  for  damages  against  the  company  whilst 
he  remains  in  it ;  his  only  remedy  is  reatitntio  in  in(c(/rumy  and 
rescission  of  the  contract;  and  if  that  becomes  impossible,  by  the 
winding  up  of  the  company  or  by  any  other  means,  his  action  for 
ilamaucs  is  irrelevant,  and  cannot  bo  maintained.  Thus,  II. 
houuiil  from  the  City  of  Glasgow  IJank  (a  co-partnersliip  regis- 
tered under  the  Companies'  Act,  18G2),  £4000  of  its  stock,  in 
Feb.,  1877.  lie  was  registered  as  a  partner,  received  dividends, 
and  otherwis  acted  as  a  partner  thereafter.  The  bank  went  into 
lii|nidation  in  Oct.,  1878,  with  immense  liabilities,  and  II.  was  en- 
tered on  flio  list  of  contributories,  and  paid  calls.  In  Dec.,  1878, 
11.  brougiil  an  action  against  the  litjuidators,  to  recover  damages 
in  respect  of  the  sums  he  had  paid  for  the  stock  ;  the  money  ho 
liad  already  paid  in  calls,  and  the  estimated  amount  of  future 
calls.  lie  founded  his  right  to  relief  upon  the  ground  of  fraud- 
ulent misrepresentations  made  by  the  directors  and  other  bank 
ollieials  to  him.  He  admitted  that,  after  the  winding  up  had  com- 
menced, it  was  too  late  for  him  to  have  rescission  of  his  contract, 
and  nstlfKfio  in  integrum.  The  Court  of  Session  of  Scotland  dis- 
missed the  action  as  irrelevant.^  On  appeal,  the  House  of  Lords 
held,  alTirming  the  decision  of  the  court  below,  that,  even  although 
the  fiaudnlent  misrepresentations  might,  if  the  bank  had  been  a 
going  concern,  liave  entitled  him  to  rescind  the  contract,  rescis- 
sion being  now  impossible,  as  decided  in  Oakes  v.  Tunpiand,'^  and 
Tennent  t'.  City  of  Glasgow  IJank,'*  they  afforded  no  ground  for 

quis  of  Abcrcorn,  27  L.  .T.  C'li.  6t)6  ;  Ex 
pirlc  Ciiriie,  3'2  L.  J.  Cli.  r>7  ;  Slielliclil, 
&c.  Soc,  34  L.  J.  Cli.  (>9:i ;  Leifi-liild's 
C':isp,  L.  |{.  1  F.ii.  231  ;  In  rr  Aiii,'h'si'a 
(,'olluMV  Co.,  L.  K.  '2  K(i.  37!'  ;  Wind's 
ra.se,  L.  H.  2  K(].  i'H)  ;  I..  \i.  4  Kc).  189  ; 
Li.  id's  Ca.sc,  '27  IJ.'av.  4C)r>  ;  Hvaiii's  Cusp, 
1  Di'  O.  V.  &  J.  75  ;  Biuld's  Ca.se,  10  W. 
1{.  t>\  ;  Acpiilfiital  &  Mar.  Ins.  Corpo- 
ration, L.  R.  .I  K(i.  22  ;  in  re  Kli^Ush 
Joint  Stock  Hank,  h.  11.  3  Iv].  341  ;  An- 
derson's Case,  L.  H.  3  K(i.  337  ;  Need- 
luun.s  (,'as, ,  L.  U.  4  Kq.  13;'.. 

1  Per  Lord  Cairns,  in   IIouMsworth  v. 


that  only  wliich  is  in  fact  recoverable  by 
till'  odiiii'iiiiy.  The  li(Hiidator,  therefore, 
stiiiiiliiit;  ill  the  place  of  the  comiiany,  the 
lllll'^ti(lll  is.  has  he  a  rifjht  to  impeach  the 
iiU'iiiDiatuliiiii,  set  a.side  the  urtirle.s,  re- 
ihioi'  the  ci'i'tilicate,  and  recover  in  right 
of  tile  c'liiiiiniiiy  that  which  tlie  company 
t'oulil  not  toi-  one  moment,  as  afjainst  a 
hfin'i  Jhh  shareholder,  be  entitled  them- 
•vlves  to  recover  y"  Waterhouse  v,  Janiie- 
snn,  L  !!.  i  Sc.  &  I),  at  ]>.  37.  And  the 
ilii'isioii  of  the  Mouse  of  Lorils,  reversing 
thiMlciision  in  tiie  Scotch  court,  was  that 
the  lii|iii4ator  afjainst  such  bond  fide  sliare- 
hnKlcr  has  im  such  rit,dit.  The  decision 
is  fiu-ii'ii hin;:;  in  its  consequences,  an<l  is 
si'iiiccly  less  applicabh-  in  tiiis  country,  as 
agoiiiral  iiriiici]ile  relating  to  corporations 
inil  till'  lunu'i  jidf  purcha.sers  of  stock,  than 
it  i*^  i'l  l'.iii,'laiid  or  Scotland  under  the 
Ccmpaiiits  Act,  1862.  See  also  The  Mar- 
VOL.  I.  22 


Citv  of  tJlasgow   Bank,    5    Ap.    Gas.    at 
p.  323. 

.  '■^  Honldsworth  v.  City  of  Glasgow  Bank, 
Court  of  Ses.s.  Cas.,  4th  series,  vol.  vi. 
p.  11(54  ;  Scot.  L.  11.  vol.  xvi.  p.  700. 

»  L.  I{.  2  H.  L.  325. 

*  4  App.  Crts.  615. 


n 


jr 


I 


')! 


1 1 . 


■ « 


it 


338 


COMMENTARIES  ON  SALES. 


[book  II. 


an  action  against  the  liquidators  ;  and,  therefore,  that  the  action 
was  irrelevant.^ 


•  HouMsworth  v.  City  of  Glasgow  Bank, 
6  App.  Cas.  317. 

The  following  principles  were  consid- 
ered in  this  ciise  as  conoludwl  by  author- 
ity :  First,  that  an  agent  acting  within 
the  scope  of  his  authority,  and  making 
any  representation  whereby  the  person 
with  whom  ho  deals  on  behalf  of  his  prin- 
cipal is  induced  to  enter  into  a  contract, 
binds  his  jnincipal  by  such  representation 
to  the  extent  of  rendering  the  contract 
voidable  if  the  representation  be  false,  and 
the  contracting  party  take  proper  steps  for 
avoiding  it  whilst  a  restitutio  in  iiitajriuii 
is  possible.  Sccundhj,  that  a  corporation 
is  bound  by  the  wrongful  acts  of  its  agents 
110  less  than  an  individual,  and  that  such 
misrepresentation  by  the  agent  being  a 
wrongful  act,  the  result  of  such  misrepre- 
sentation uiust  take  effect  in  the  same 
manner  against  a  corporation  as  it  would 
against  an  individual.  Thirdly,  that  if 
there  cannot  be  a  restitutio  in  inter/rum 
the  contract  cannot  be  rescinded,  but  must 
remain  in  force,  whatever  right  may  exist 
in  regard  to  damages  for  injury  sustained 
by  the  party  deceived.  Houldsworth  v. 
City  of  Glasgow  Bank,  5  App.  Cas.  at  p. 
331,  )wr  Lord  Hatherley.  But,  as  was 
laid  down  by  Lord  Chelmsfonl  in  Addie 
V.  The  Western  Bank,  L.  II.  1  Sc.  &  D. 
145,  where  a  jjcrson  has  been  drawn  into 
a  contract  to  purchase  shares  belonging  to 
a  company  by  fraudulent  misrepresenta- 
tions of  the  directors,  and  the  directors 
in  the  naiin'  of  the  company  seek  to  en- 
force that  (  1  tract,  or  the  person  who  has 
been  deceive. I  institutes  a  suit  against  the 
company  to  rescind  the  contract  on  the 
ground  of  fraud,  the  misrepresentations 
are  imputable  to  the  company,  and  the 
purchaser  cannot  be  held  to  his  contract, 
because  a  company  cannot  retain  any  l)en- 
efit  which  they  have  obtained  tiirough  the 
fraud  of  their  agents.  But  if  the  jierson 
who  has  been  induced  to  purchase  shares 
by  the  fraud  of  the  directors,  instead  of 
seeking  to  set  aside  the  contract,  rirefers 
to  bring  an  action  of  damages  for  the  de- 
ceit, such  an  action  cannot  be  maintained 
against  the  company  ;  and,  therefore,  the 
action  in  that  case  having  been  for  the 
reduction  of  the  deeds  of  transference  of 
the  shares,  and  alternately  for  damages,  it 
was  held  that,  the  suit  having  been  brought 
against  the  company,  it  followed  that  he 
could  not  recover  unless  he  was  entitled 
to  rescind  the  contract. 

In  the  case  of  Houldsworth  v.  City 
of  Glasgow  Bank,  in  the  Scotch  court 
{supra),  two  principles  were  laid  down 
which  are  well  supported  by  the  authorities 


lK)th  in  England  and  Scotland,  and  aljout 
the  correctness  of  which  there  can  li.;  no 
(piestion  :  (1)  that  a  jirincipal  is  Ijulil, 
for  the  fraud  of  his  agent  while  ai:tiiif;iii 
tlie  in'incipal's  business  and  within  tlir 
scope  of  his  authority  for  the  iiriiu'liial's 
benefit  ;  (2)  that  this  rule  applies  to  thf 
case  of  an  incorporated  coiniiany  aitin,; 
through  the  agency  of  its  ordinni'v  iliivc- 
tors  and  manager.  Barwick  v.  'I'lie  Kii.;. 
lish  Joint-Stock  Bank,  L.  11.  2  K.v.  ijli; 
Mackay  v.  Couinierciul  Bank  of  Niw 
Brunswick,  L.  It.  5  V.  V.  3tt4  ;  Jiinliiit 
V.  Carron  Company,  2  Macph.  llol; 
National  Exchange  Co.  of  (llasj,'inv  r, 
Drew,  2  Macii.  l»()3 ;  Traill  v.  Simtlis 
Trustees,  3  l{et.  (.Sc.)770;  ('Ivaosiial- 
Bank  v.  I'aul,  4  Ret.  (Sc.)  6M.  Ami, 
as  was  stated  in  the  san\e  case  (lIoiiMv 
worth  V.  City  of  Glasgow  Hank,  in  tlie 
Scotch  court),  actions  founded  on  tlr 
fraudulent  representations  of  agents  hnw 
bi^en  reiicatcdly  sustained  against  cum- 
jianies  and  incorporations.  Cases  l:bt 
above  cited,  and  Swire  v.  Francis,  !,.  R, 
3  P.  ':;.  104;  Stone  r.  City  nnd  Cniniv 
Hani.,  3  C.  P.  Div.  283  ;  Weir  v.  liill,  i 
Ex.  Uiv.  238. 

The  distinction  taken  is  a  fine  one, 
within  the  law  of  principal  ami  ngeiit, 
and  is  to  the  etfect  that  while  a  suit 
against  a  corporation  with  respect  to 
sliares  of  that  corporation  cannot  l>f  sus' 
tained,  for  fraudulent  misrepicsentiiti'Hi 
by  the  directors,  unless  there  can  be  n^i- 
tiitio  in  integrum,  yet  that  for  any  lOii- 
tract  made  between  the  company  an! 
anotiier,  with  respect  to  any  othei'  nuittor 
than  its  shares,  the  company  is  resi»:i- 
sible,  as  an  ordinary  principal  wonKl  l*. 
for  the  fraud  of  its  agent.  The  reason  for 
this  distinction,  we  take  it,  is  even  tiiu't 
than  the  distinction  itself.  Tli"  piini'i|i,il 
is  only  bound  for  the  acts  of  his  ag'iit 
within  the  .scope  of  the  agency.  In  the 
case  of  purchases  of  stock  from  a  eoniiMny, 
it  is  rather  the  purchase  of  a  ri;,'lit  to  be- 
come a  member  of  the  company  and  thus  to 
become  a  .sharer  in  the  acts  and  ccintiiids 
of  the  company,  than  it  is  the  entoriiiiJ 
into  a  contract  with  the  company.  It  is 
in  cases  of  contract  with  a  company  that 
the  company  acts  by  its  agents,  luid  is 
bound  by  their  acts  and  repiesentations 
within  the  scope  of  the  agency,  lint,  in 
the  selling  of  the  stock,  it  is,  in  a  .'oiisc, 
merely  giving  the  party  a  right  to  beoome 
a  member  of  the  company,  wiiieli  Iws  a 
corporate  existence,  not  for  the  innpcsi'  of 
selling  its  shares,  but  for  carrying  <'ti  some 
specific  bu.siness.  So  long  then  iis  th« 
contract,  so  to  call  it,  simply  amounts  to 


PART  v.] 


CORPORATIONS. 


839 


Since  1873,  A.  had  appeared  on  the  register  of  a  joint  stock 
l)anking  company  as  the  holder  of  £G00O  of  stock.    On  Oct.  2, 


the  riplit  of  tlio  party  jnirclm8inf»  tlio 
sliiirrs  of  bi'coniiiif;  ii  inenibcr  of  the  cor- 
ininitioii,  the  imrty,  wliiUf  in  a  iiosition  to 
inaki'  rt-slitnlio  in  intajriim,  hy  a  rctuni 
of  tlic  stock,  thi'  nxtiVti  selliii},'  of  which 
was  all  that  was  in  tlic  povvnr  of  the 
company,  is,  as  between  himself  and  the 
(iiiiipaiiy,  entitled  to  cancel  snch  trans- 
niiicin  lor  the  fraud  of  those  acting  for 
tlir  idiiiiiniy  ;  the  agents  having  no  power 
liv  siicli  sale,  by  their  reirvsentations,  to 
make  tlie  company  any  fiuti.  'r  liabhi  than 
tliat  of  having  the  sale  rem  ored  invalid. 
Tlic  selling;  of  the  stock  is  a  thing  apart 
from  the  object  for  wliich  tiie  company 
is  created.  If  the  company  were  createtl 
for  the  purpose  of  buying  and  .selling 
other  stocks  than  that  of  tlie  comi)any, 
tliosp  would  bi^  simply  diattels,  and  rcpre- 
si'Utalions  made  with  reference  to  them 
on  such  sales,  by  the  agents  of  the  com- 
]mny,  would  be  representations  with  ri'tcr- 
ence  to  contracts  of  the  company,  and,  as 
bucli,  binding  on  the  company,  witliiu  the 
scope  of  the  agency. 

The  only  ground  upon  which  we  think 
the  cases  on  these  dill'erent  questions  can 
be  reconciled,  is,  that  tlio  .scope  of  the 
agency  is  very  dillcrent  in  the  cases  where 
tlie  sto  k  of  the  company  is  .sold,  where 
the  transaction  is  oidy  the  creation  of  a 
rifjiit  to  jiartake  in  the  comjiany's  con- 
tracts, as  distinguished  from  those  cases 
where  the  representations  of  the  eomjiany's 
."ij^i-nts  are  made  in  connection  with  tlie 
company's  contracts,  within  the  scope  of 
its  corporate  eajiacity.  Lord  Cairn.s,  in 
Houlilsworth  V.  City  of  Glasgow  Hank,  5 
.Apji.  Cas.  !i23,  says  :  "  There  is  no  doubt 
that  according  to  the  law  of  Kiigland  a  per- 
son purchasing  a  chattel  or  goods,  concern- 
ing wliich  the  vendor  makes  a  fraudulent 
iiiisrepresentation,  may,  on  finding  out  tlie 
fraud,  ret.iin  the  chattel  or  the  goods, 
and  have  his  action  to  recover  any  dam- 
ages he  has  sustained  by  reason  of  the 
fraud.  .  .  .  But  does  the  same  rule  apjdy 
to  the  case  of  .shares  or  stock  in  a  ]iai  tiier- 
sliip  or  company  ?  We  are  .iccuistomed  to 
Use  lan!,'uag(>  as  to  such  a  .sale  and  pur- 
ciiasp  as  if  the  thing  bought  or  sold  were 
goods  or  chattels,  but  this  it  certainly  is 
uct.  The  contract  whicdi  is  made  is  a 
contract  by  which  the  ivr.son  called  the 
linyer  agrees  to  enter  into  a  partnership 
nlrendv  formed  and  going,  taking  his  share 
of  past  liabilities,  and  his  chance  of  future 
profits  or  losses.  He  has  not  bought  any 
I'liattel  or  piece  of  property  for  himself. 
He  lias  merged  himself  in  a  .society,  to  the 
piopcity  of  which  he  has  agreed  to  con- 
tribute, and  the  property  of  which,  includ- 


ing his  own  contributions,  he  has  agreed 
shall  be  used  and  a]i]died  iu  a  particular 
way  and  in  no  other  way." 

The  tlecisioii  in  this  case  tnnis  upon 
the  peculiar  character  of  the  transaction 
where  that  which  is  purchased  is  the  stock 
of  the  company,  ami  where  the  <{uestion 
that  is  decided  is  that  a  man  who  has 
been  induced,  by  the  fraudulent  misrepro- 
sentations  of  agents  of  a  company,  to  take 
shares  in  the  coin|iany,  cannot,  after  he 
discovers  the  fraud,  and  is  unable  to  make 
restitutio  in  inli(jrinn,  recover  daniagefi 
from  the  company.  Lord  Blackbuin,  in 
commenting  on  the  language  used  by  Lord 
Chelmsford,  above  stated  by  us,  says  :  "  I 
cannot  say  whether  Lord  Chelmsford 
meant  to  conline  his  observation  to  the 
particiilar  kind  of  contract  then  before 
liim,  without  deciding  whether  the  same 
doctrine  would  apjily  to  all  kinds  of  con- 
tracts, or  whether  it  was  only  by  accident 
that  he  conlined  his  language  as  he  did. 
There  are  strong  reasons  given  by  the 
noble  and  learned  lords  who  have  already 
spoken  in  this  case  for  holding  that  when 
one  has  been  induced  by  the  fraud  of  the 
agents  of  a  joint-stock  company  to  con- 
tract with  that  companv  to  become  a 
partner  in  that  company,  he  can  bring  no 
action  of  deceit  against  the  company 
whilst  he  remains  a  partner  in  it.  There 
are  reasons  which  would  not  apply  to 
every  case  in  wliich  a  contract  has  been 
induced  by  fraud,  as  for  example,  if  an 
incorporated  company  .s(dd  n  ship,  and 
their  manager  falsidy  and  fraudulently 
represented  that  she  had  been  tlioroughly 
repaired  and  was  (piite  .seaw(>rthy,  and  so 
induced  the  purchase,  and  the  purchaser 
first  became  aware  of  the  fraud  after  the 
ship  was  lost,  and  the  underwriters  proved 
that  she  had  not  been  repaired  and  was  in 
fact  not  seaworthy,  and  so  that  the  insur- 
ance was  void  when  it  would  be  too  late 
to  rescind."  And  Lord  Blackburn  (piotes 
apjiroviiigly  from  Lord  Shand :  "The 
whole  question  has  been  very  carefully 
coiisidei'i'd  in  recent  cases  in  Kngland,  in 
whiidi  it  has  been  well  settled,  on  prin- 
ciples which  I  am  satisfieil  are  sound,  that 
an  iiicorjioration  will  be  answevabh^  in 
damages  for  the  fraudulent  representations 
of  its  agents  made  in  tlie  cour.se  of  the 
business  intrusted  to  them."  Barwiek  v. 
The  English  Joint-Stock  Bank,  L.  R.  2 
Ex.  2.'»9  ;  Swift  i».  VViiiterbothnm,  L.  R, 
9  Q.  B.  3ni  ;  Mackay  v.  The  Conunercial 
Bank  of  New  Brunswick,  L.  R.  .5  P.  V. 
394  ;  Swire  «j.  Francis,  3  App.  Cius.  106; 
Stone  V.  The  City  and  County  Bank,  3 
C.  P.  Div.  283  ;  Weir  v.  Bell,  3  Ex.  Div. 


3 


H  r 


u:;i 


t  '' 


'•  { 


340 


COMMENTARIES  ON  SALES. 


[book  II, 


H    :)■ 


mi  t 


1878,  the  bank  stopped  payment.  On  Oct.  5,  the  directors  issued 
circulars  summoninj;  an  extraordinary  general  nieeting  to  puss  a 
resolution  to  wind  up  the  company.  On  Oct.  18,  a  report  uuuli; 
by  independent  investigators  was  sent  to  all  the  shareholdiTs, 
which  showed  that  the  insolvency  of  the  company  was  of  such  an 
overwhelming  character  that  large  calls  would  have  to  be  madi' 
to  meet  its  liabilities.  On  Oct.  21,  A,  raised  an  action  for  reJiic- 
tion  of  his  contract  to  take  stock,  on  the  ground  that  ho  was 
induced  to  purchase  by  the  fraudulent  misrepresentation  of  tlio 
directors.  The  summons  in  this  action  was  served  on  the  roni- 
pany  on  the  same  day.  On  Oct.  22,  an  extraordinary  resohitiou 
to  wind  up  the  company  voluutarily  was  passed.  A.  was  put  on 
the  list  of  contributories.  The  first  division  of  the  Scotch  Court 
of  Session  refused  the  prayer  of  the  petition,  holding  that  the 
action  came  too  late  after  the  bank  had  stopped  payment  and  had 
declared  its  insolvency.*     On  appeal  to  the  House  of  Lords,  the 


238  ;  Itoulilswortli  v.  City  of  filnagow 
Bank,  5  App.  Cas.  340,  33!>. 

Tlio  qiu'stion  is  )  '.it  by  Kurl  Ciiiriis  on 
the  peculiar  cH'iu't  of  tlio  Windinfj-uji  Act 
on  tlio  rights  and  obligations  of  the  share- 
holder, and  that  consideration  entered 
largely  into  the  decision.  But  where 
the  Winding-up  Act  does  not  apply,  and 
where  the  company  is  selling  its  own  stock, 
strictly  as  a  commodity,  as  the  stock  of 
any  other  company  in  which  it  is  deal- 
ing,—  ns,  for  instance,  where  the  stock 
has  been  surrendered  by  a  stockholder 
after  some  of  the  calls  have  been  paid, 
and  the  stock,  under  fraudulent  misrepre- 
sentations by  the  'igent  of  the  company, 
lias  been  sold  for  more  than  its  value,  the 
company  being  solvent,  —  we  see  no  rea- 
son why  the  purchaser  of  tiie  stock,  wiio 
has  snll'ered  loss  by  the  fraudulent  mis- 
representation of  the  company's  agent, 
could  not  as  well  recover  against  the  com- 
jjany,  without  the  restitutio  in  integrum, 
as  in  any  other  case  where  a  right  of  ac- 
tion would  accrue  to  one  against  a  com- 
pany for  the  fraud  of  its  agent,  as  in  the 
cases  above  cited.  See  previous  notes  con- 
taining dicta  to  this  effect. 

A  case  analogous  to  this  is  decided  in 
the  Scotch  case  of  Howe  i'.  City  of  Glas- 
gow Bank,  Sc.  Rep.  4th  ser.  vol.  vi. 
p.  lll>4,  whero  the  seller  was  a  third 
party,  and  where  the  purchaser  sought 
to  make  the  company  liable  for  nii.srepro- 
sentation,  on  the  ground  that  the  bink, 
through  its  oflficiol.s,  acted  as  agent  for  the 
seller  in  .selling  the  bank  stock  belonging 
to  the  seller.  The  court  held  tliat  the 
bank  was  not  liable  ;  but  on  the  ground 
that  neither  the  manager  nor  the  direc- 
tors had  any  power  whatever  to  carry 


through  an  agency  tran.saction  lictHceii 
third  parties  which  could  in  any  way 
allect  the  bank  or  its  sharelioMcrs.  In 
tlie  cas((  which  we  have  put,  and  wliich  is 
liable  to  occur  in  this  country,  as  iIumv 
would  be  no  ((uestion  as  to  tlic  aijiMicv, 
t\u'.  converse  of  the  holding  in  llmvi'i'. 
City  of  (Jla.sgow  Hank  would  .seem  In  ap- 
l)ly  to  such  a  case,  in  which  the  lioMiii!,' 
would  be,  "  the  ollicials  had  .  .  .  iiiitlinr- 
ity  to  bind  the  bank  as  brokers  in  I  lie  sale 
of  stock,"  and,  therefore,  in  such  a  case 
the  bank  would  l)e  liable.  See  tlic  fol- 
lowing Knglish  and  Scotch  cases  in  this 
connection  on  the  (luestions  iiivnlvcd. 
Barwick  v.  Knglish  .Foint  Stock  I?;iiik, 
L.  H.  '2  Kx.  2.'.!»;  Mackay  v.  Ci.iniiiciciiil 
Bank  of  New  Brunswick,  L.  It.  f.  V.  C. 
394,  410,  4112;  Swire  v.  Francis,  H  .\it. 
Cas.  10(),  114;  Denton  v.  Great  Nurtliini 
Bail  way  Co.,  H  E.  &  B.  8(10  ;  Suilt  i: 
Wi'iterbothain,  L.  R.  8  I,).  B.  -J  t  i ;  Swilt 
V.  .lewsburv,  L.  U.  9  Q.  15.  :'.i)l.  lili; 
Weir  I'.  Barnett,  3  Kx.  Div.  ;!2  ;  Weir  r. 
Bell,  3  Kx.  Div.  238  ;  Hecdi.;  v.  L.  A 
N.  W.  Ry.  Co.,  4  Kx.  244,  2:>'> ;  Ib'in  r. 
Nicholls,  1  Salk.  288;  Cornfoot  r.  I'cnvke, 
6  iM.  &  W.  3.58,  373  ;  .lardiiie  v.  Ciir.m 
Co.,  Court  of  Sess.  Cas.  3d  .scr.  vnl.  ii. 
p.  1101;  National  Ex.  Co.  of  (ilas^'dw  i'. 
Drew,  2  Mac(|,  103;  Burnes  y.  I'ciiiicll, '2 
H.  L.  Cas.  497;  Forth  Main  Ins.  Co.  i'. 
Burnes,  Court  of  Sess.  Cas.  2d  scr.  vol.  x. 
689  ;  Traill  v.  Smith's  "nistecs,  //>.  4tli 
ser.  vol.  iii.  p.  770  ;  Clydesdale  Bank  f. 
Paul,  I/>.  vol.  iv.  p.  626;"Adilic  v.  Wi'stcin 
Bank,  L.  K.  1  Sc.  &  D.  145. 

1  Tennent  v.  City  of  Glasgow  Ikiik, 
Scot.  L.  R.  vol.  xvi.  p.  238  ;  Court  Sess. 
Caa.  4th  ser.  vol.  vi.  p.  554. 


PAUT  v.] 


C0RP0IUTI0N8. 


341 


decision  of  the  Scotch  co  \  was  auntninod  on  tlic  ground  that  the 
ridits  of  innocent  third  parties  had  intervened,  and  that  A.'s  no- 
li >ii  for  reduction  of  his  contract  was  too  hite  to  exempt  him  from 
liiiltility.' 

liiiril  Cairns,  L.  C,  in  delivering  the  judgment  of  the  House  of 
L(iiils,aih>pU'd  the  three  propositions  hiitl  down  by  the  Lord  I'resi- 
ik'iil  in  his  judgment  in  the  court  below,  as  follows:  — 

In  till'  first  place,  a  contract  induced  by  fraud  is  not  void,  but 
only  voidable  at  the  option  of  the  {)arty  defrauded. 

Socondly,  this  does  not  mean  that  the  contract  is  void  till  rati- 
lied.  but  it  means  that  the  contract  is  valid  till  rescinded. 

And,  thirdly,  the  option  to  void  the  contract  is  barred  where 
innocent  thirtl  parties  have,  in  reliance  on  the  fraudulent  ccui- 
tnict,  iiciiuii'ed  rights  which  would  be  defeateil  by  its  rescission." 

IV'r.sons  who  jturehase  property  and  then  create  a  company  to 


1  ///,//.  \  A  p.  Ciis.  01  f). 

-  Siiplili  1,.  If.  vol.  xvi.  p.  241;  Court 
S.ss.  ('as.  Itli  SIT.  vol.  vi.  J).  .'i.''.8.  The 
luiniipli's  iiivolvcil  in  flic  iiisc  wen'  tliii.s 
stiiiiil  liy  I'onl  Ciiiriis:  "In  iiii  oiiliniiry 
]i;iiiihislii]i,  not  loiincd  on  tlu- joint-.stock 
]iriiici|iii',  it  is  inipossiMc,  as  a  j^cncnil 
mil',  tiii'  a  ]iartnc'r  at  any  time  to  ret  ire 
fniiM  oi-  ri'imdiatt'  the  partni'i'shij)  without 
satisrviii;,'.  or  rcniainiiij,'  houinl  to  satisfy, 
till'  iialiililics  of  the  iiartni'r.ship.  llo 
may  have  been  induced  by  his  co-parlncr.s 
liy  iVaiul  to  enter  the  partnership,  and 
that  may  lie  a  f,'r()nnd  for  relict'  af,'iiinst 
tlu'iii  ;  tmt  it  is  no  ground  for  fretting  rid 
of  a  lialiility  to  creditors.  This  is  the 
iMsc  wliethcr  the  partnershi])  is  a  ^o\w^ 
('(iin'iTli,  or  whether  it  has  stoppeil  jiay- 
iih'iit  or  lieconie  insolvent.  In  tlic  case 
of  a  Jiiint-stoek  company,  liowcvcr,  the 
siians  aic  in  their  nature  and  creation 
traiislcralilc,  ami  transferable  without  the 
eoiisciil  of  creditors;  and  a  shareholder, 
so  Imij,'  as  the  uoni|tany  is  a  fioiuf^  coii- 
ccin,  ran,  by  transferrin^,'  his  shares,  j^'ct 
rid  (it  his  liability  to  crcditois,  either  ini- 
iiicdiatiiy  or  alter  a  certain  interval.  'J"ho 
asMiiiiption  is  that,  while  the  company  is 
a  ;;iiiiii,'  concern,  no  creditor  has  any  spe- 
I'ilii'  riL;iit  to  retain  the  individual  liability 
iif  any  particular  shandiolder.  It  i.s  on 
till'  .same,  or  on  a  similar,  princijilc  that, 
so  Iciiil;  as  the  coin])any  is  a  >j;oiiifj  con- 
ri'ir.,  a  shareholder  who  lias  been  induced 
to  take  uji  shares  by  the  fraud  of  the  eoin- 
l«iiy  has  a  right  to  throw  hack  iiis  shares 
U]ioii  the  company  without  reference  to 
any  claims  of  creditors.  Ho  would  liavo 
a  iij;lit  to  transfer  his  shares  without 
ri'fi'ii'iii'o  to  creditors.  The  company,  as 
asoiiiif  concern,  is  a.ssunied  to  ho  solvent, 
and  able  to  meet  its  engagements,  and  to 


have  a  surplus  ;  ami  the  compuny  being 
solvent,  its  duty  to  i»ay  the  repudiating 
shareholiler  what  is  due  to  him,  and  to 
take  the  .shares  olf  his  hands,  is  an  alfair 
of  the  <'oiiipany  and  not  of  its  creditors, 
lint  if  the  company  has  become  insolvent, 
and  has  slop|icd  payment,  then,  even  irre- 
spective of  winding  uji,  a  wholly  diU'erent 
state  of  things  appears  to  nic  to  arise. 
'I'hc  a.ssnmption  ol  new  lialiilities  under 
such  <'ireunistances  is  an  alfair  not  of  the 
company  but  of  its  crcclitors.  The  repu- 
diation of  shares  which,  while  the  eom- 
jiaiiy  was  .solvent,  would  not  or  need  not 
liave  inllictcd  any  injury  upon  creditors, 
must  now  of  necessity  inilict  a  serious  in- 
jury on  creditors.  1  should  therefore  he 
dispo.scd  in  any  case  to  hesitate  before 
adndtting  that,  after  a  company  Itas  be- 
come insolvent  and  stopped  jiaynient, 
whether  a  winding  up  lias  coinmcnced  or 
not,  a  resci.'-sion  <if  a  contract  to  tidvo 
shares  could  be  perniitled  as  against  cred- 
itors." Teiineiit  V.  City  of  tila.sgow  ISunk, 
■1  A  p.  Cas.  at  y.  «'J1. 

riie  principles  established  in  the  fol- 
lowing cases  arc  in  accord  :  Addie  v. 
Western  Hank,  I,.  11.  1  Sc.  k  1).  145; 
Sniitii  V.  h'ees  b'ivcr  Co.,  I..  1!.  4  II.  L. 
()4;  Oakes  v.  Tnr(|uand,  L.  U.  2  II.  I,. 
'.\2:>\  Kent  r.  Freehold  Lund,  &c.  Co.,  3 
Ch.  App.  4it;{  ;  N.  Mitchell  v.  City  of 
(Jlasgow  Bank,  Court  of  .Scss.  Cas.  4th 
ser.  v(d.  vi.  p.  4'J()  ;  A.  Mitchell  v.  City 
of  (Glasgow  Bank,  Ih.  4:i'.);  Henderson  v. 
Koval  Briti-sh  Bank,  7  K.  &  B.  :i.'')6 ; 
Mi'x.-r'sCase,  4  Do  C..  &  J.  57.');  Clarke  v. 
Dick.son,  v..  B.  &  F,.  148;  Blake  r.  iMownt, 
21  Bcav.  003;  Venezuela  Ry.  Co.  i'.  Kisci), 
li.  B.  2  H.  L.  99;  Allin'sCase,  L.  B.  3 
Ch.  493. 


M    'i? 


*,    ■ 


!      I 


842 


CUMMENTAIUBS  ON   SALES. 


[book  II. 


«'i  ?   . 


purchase  from  them  the  property  they  possess,  stand  in  a  fidu- 
ciary relation  towards  that  company,  and  must  faithfully  slute  tu 
the  company  the  facts  which  apply  to  the  property,  and  would  in- 
lluence  the  company  in  ducidinj^  on  the  reasonableness  of  acquir- 
in}5  it.  This  principle  was  adopted  in  Erlanger  v.  Tiu.'  St^w 
Sombrero  Phosphate  Co.,'  reversing  a  decree  of  Malins,  \'.  C. 
On  appeal  to  the  House  of  Lords,  the  decision  of  tho  Coui't  uf 
Ajjpeal  was  sustained. 

In  this  case  the  facts  and  circumstances  of  the  original  sale 
and  purchase  by  the  parties  coating  the  company  were  n(jt  dis- 
closed  to  the  company,  who  adopted  the  purchase  without  a  knowl- 
edge of  the  fact ;  but,  on  their  becoming  subsequently  awaio  that 
the  promoters  of  the  company  had  themselves  been  the  purchas- 
ers of  it,  at  a  lower  price  than  the  comjmny  wore  to  pay  lor  it, 
tho  company,  on  filing  a  bill  to  rescind  the  contract,  obtained  a 
decree  to  that  effect.  The  ilouse  of  Lords  sustained  this  decree; 
the  only  question  in  the  case  at  all  of  any  doubt  existing  as  to 
whether  the  company  had  a  right  to  the  relief  sought  for  was,  as 
to  whether  there  had  not  been,  on  the  part  of  the  company,  such 
delay  in  applying  for  relief  as  to  constitute  laches  which  deprived 
the  company  of  the  title  to  obtain  it.  But,  with  Lord  Cairns 
very  doubtful  on  this  point,  it  was  held  that  the  contract  could 
not  be  sustained.^ 


1  5  Ch.  Div.  73, 

2  Ibid.,  3  Ap;,.  Cas.  1218.  Tho  gen- 
eml  priiu^iplesf  coiiiiucted  with  siiuli  trans- 
actions are  ('onuisely  stated  by  ijord  Uath- 
t-vley,  at  p.  1243,  us  follows:  "There  aro 
thrc-o  partieular  classes  of  cases  of  what 
tu-  cv-urt  terms  'fraud'  whi(!h  may  be 
pointed  to  as  having  some  analogy  with, 
or  some  bearing  upon,  the  present  case. 
Tixe  fir8„  is  us  bi^tween  vendor  and  pur- 
chaser ;  the  next  is  as  between  partner 
and  co-partner;  atid  tho  third  is  the  case 
in  which  an  agent  for  a  purchaser  receives 
a  gratuity  from  the  vendor.  As  to  the 
first  of  these,  a  veiulor  need  not  do  what 
was  at  one  time  asserted  by  this  bill, 
namely,  disclose  what  ho  has  paid  in 
elfecting  his  own  anterior  purchase  be- 
fore asking  an  eiihauced  price  from  him 
to  whom  Tie  seeks  to  sell  the  property  ; 
but  he  must  not  be  guilty  of  any  conduct 
which  amounts  t;)  unfair  'oncealment  on 
his  part  of  the  real  rx'ts  of  the  case,  which 
ought  in  common  fairnoss  to  bo  disclosed 
to  a  jn'i-son  seeking  to  purchase  or  enter- 
ing into  a  treaty  with  him  foi'  that  pur- 
pose. As  regards  ])artners,  there  is  no 
doubt  that  one  partner  is  bound  to  exer- 
cise uberrima  fide.s  with  regard  to  any 
transactions  in  which  the  j)artner3  may 
be  engaged  in  common.     There  is  another 


class  of  cases  well  known  in  couit,-!  li 
equity  which  has  some  bearing  u|kii  the 
case  before  us,  ami  that  is  where  a  piTsoii 
acting  as  agent  for  a  purchaser  —  that  is  lo 
say,  for  a  person  who  is  minded  to  imrrliase 
—  receives  a  gratuity  or  a  brilit'  nl'  some 
description  from  the  intending  vendor.  In 
that  case,  again,  the  courts  intciti'ii',  ami 
say  that  a  negotiation  carried  on  bctwivii 
the  agent  for  the  purchaser  and  vnnloi  as 
jjrincipal,  in  which  the  agent  for  the  inn- 
chaser  receives  benefits  or  advaiitai,'i's  of 
any  kind  from  the  intending  vcmloi.  is 
one  which  can  be  impeached,  ami  which 
would  be  set  aside  in  a  court  of  c'lnity." 

The  cases  are  numerous  which  >iiow 
that  iwrsons  who  act  on  behalf  of  otliei-s 
forming  a  company  cannot  obtaiii  n  jiri'lit 
for  themselves  out  of  tho  tran.-aitioii. 
Aberdeen  Ky.  Co.  v.  Blaikie.  1  Min^'l- 
461  ;  Imperial  Merc.  Credit  Assoc  c. 
Coleman,  L.  11.  6  H.  L.  18!);  I.iinlsiy 
Petroleum  Co.  v.  Ifurd,  L.  H.  T)  1'.  •'. 
221  ;  Fawcett  v.  Whitehouse,  1  Hnss.  & 
M.  132  ;  Tyrrell  y.  Hank  of  Loii.lon,  10 
H.  L.  Cas.  2C,  32  ;  Charlton  i'.  H  iv,  23 
W.  R.  12i>;  Cornell  v.  Hav,  I-  !!•  «  (^^  ''• 
328;  Beck  v.  Kantorowic/,  3  K.  A:  1.  '-^O: 
dreat  Luxembourg  Ky.  Co.  r.  Ma^'iiiiy, 
25  Beav,  586  ;  Hichens  v.  Coimr-v.',  1 
Russ.  &  M.  150,  n.;  Foss  v.  Harbuitle,  2 


PAitT   v.] 


CORPORATIONS. 


843 


In  Dlock  V.  Ilavorshani,'  a  question  arose  as  to  the  party  enti- 
tled to  rt'C'jivo  the  (JiviUonds  on  a  sale  of  stock  under  the  t'oUow- 
iii!,'  facts,  Tliu  shares  of  a  company  wore  sold  by  auction  on 
Aii<i.  1.,  iud  a  deposit  was  paid.  By  the  conditions  of  sale,  the 
purcliusi  WHS  to  be  completed  on  Aug.  29,  which,  accordingly,  was 
doiu',  and  the  transfers  were  signed.  The  pai'ticulars  and  condi- 
tions of  sale  were  silent  as  to  dividends,  and,  in  the  mean  time, 
on  \u<i.  -4,  a  dividend  was  declared  in  respect  of  a  period  ante- 
cedent to  the  sale  by  auction.  The  court  held  that  the  completion 
of  tiio  purchase  had  relation  back  to  the  time  when  the  contract 
was  niiule,  which  vested  from  that  moment  the  right  to  the  shares 
in  the  purchasers.  They  purchased  the  shares  on  that  day  and  at 
that  time,  and  at  their  then  value,  and  when  they  paid  the  re- 
mainder of  the  purchase-money  at  the  time  fixed  for  completion 
they  had  a  complete  title  to  the  shares  as  they  bought  them  on 
Aui*-.  1.  The  purchaser  bought  at  the  value  before  dividend,  and 
if  he  did  not  receive  it,  he  would  bo  |)aying  so  much  m()rc  for  his 
shares  than  ho  bargained  for ;  and,  therefore,  the  dividend  be- 
longed to  the  purchaser.^ 


Haiv,  Hn  ;  Paul  &  Beresfonl's  Ciiec,  33 
iiv.  'JO  I.  On  both  4iU'.stioiis  in  tht- 
',  si'i'  Ilickson  V.  Lonibiiril,  L.  \i.  1 
.i.  '6'H  ;  llcyiniinn  v.  The  Eiiroiieau 
O'litial  IJv.  e'o.,  L.  U.  7  Ki|.  ir)4;  ParkiT 
V.  Ml  K.'ima,  L.  R.  10  Oh.  App.  iitj ; 
lU'iit's  &  Foibcs's  (Visc.  L.  K.  8  C'h.  App. 
7iiS;  Hiijjiiall  I'.  Carlton,  6  t'li.  Div.  371; 
Oviiriiil  &  (iiirnej'  Co.  v.  Cibb,  L.  H.  5 
H.  !..  -ISO;  (i over's  Case,  1  Ch.  Dlv.  182; 
Vif,',.is  V.  Pike,  8  01.  &  F.  [>6-2.  But 
hIuh'  II  siUcr  oi'  property  is  not  actinj;  in 
n  liiliiiiiii y  capacity,  it  is  open  to  him  to 
sill  his  property  to  a  Joint-stock  company, 
anil  to  invito  ]>er.sons  to  form  thoni.selves 
into  ii  joint-stock  com[)any  to  jmrchaso 
frmn  liini,  just  as  it  is  open  to  any  man  to 
sell  to  any  ]iersons  in  the  world  the  rii,'lit 
to  ln'iDMii'  his  partners  in  any  property  or 
nmli'itakini,'.  Wliiie  not  actin}^  in  a  tidu- 
liiuy  capacity,  until  the  formation  of  tlio 
iwrtncinliip  lie  is  siini)ly  a  vendor  of  the 
wares.  lie  may  ask  wiiat  i>rico  ho  likes, 
ami  111. tain  wliat  price  he  can,  and  he  is 
umler  III)  ohlii^iition  whatever  to  say  what 
lirici'  he  I'ave,  or  lias  to  give,  for  them  in 
onli-r  to  (uMiplete  his  title  to  the  goods. 
Oov.i's  Case,  1  Cli.  Div.  182,  187.  Hut 
a  promoter  of  a  company  is  in  a  fiduciary 
rplatiiiti  to  the  company  which  ho  jiro- 
nioti's  iir  ciiusos  to  come  into  existence. 
If  that  iiriiiiioter  has  n  property  which  he 
ilosires  til  sell  to  tlie  company,  it  is  (juite 
open  tn  hini  to  do  so  ;  but  upon  him,  as 
iipoii  iiMv  other  person  in  a  fiduciary  posi- 
t'.oD.  it  is  incumbent  to  make  full  and  fair 


disclosure  of  his  interest  and  position  with 
res|iect  to  that  juoiierty.  There  is  no  dif- 
ference in  this  respei.'t  between  a  promoter 
of  a  company  and  a  trustee,  steward,  or 
nf,'ent.  ^ew  Sombrero  Pliosphate  Co.  v. 
Eiianj,'er,  5  Ch.  Div.  73,  118. 

1  4  Kx.  IJiv.  24. 

'■'  Nothing  having  been  .said  about  the 
dividends,  there  would  seem  to  bo  no 
doubt  that  tiie  purchaser  would  bo  en- 
titleil  to  all  dividends  declared  after  the 
]iurchase.  There  is,  in  fact,  as  an  inci- 
dent of  the  contract,  a  presumption  as  to 
the  intontiun  of  the  parties  very  similar 
to  the  ]iresum|iti()n  in  England  in  connec- 
tion with  the  punhasos  of  the  home  agent 
who  is  buying  for  a  foreign  ]irinci]ial. 
Tiie  value  of  stock  being  allected  by  the 
accretion  of  dividends,  the  selling  j)rice 
of  tile  stock  is  necessarily  gieater  or  less 
in  proi)orti()n  to  the  greater  or  smaller 
amount  of  dividends  ;  and  when  the  stock 
S(!lls,  notliiiig  being  said  about  dividends, 
it  is  deemed  as  of  course  that  all  dividends 
accruing  after  tiie  sale  pass  with  the  stock. 
Tiio  one  fact  that  a  na/f  is  made  passes  to 
the  purchaser — the  owner  —  all  the  in- 
crements, just  as  the  jmrchaser  of  female 
niiinials  takes  all  their  increase  following 
the  sale. 

It  was  sought  to  put  the  case  as  analo- 
gous to  that  of  a  sale  of  real  jiroperty 
where  the  increments  are  in  the  vendor 
until  the  completion  of  the  sale  ;  but  it 
was  held  that  the  analogy  did  not  hold 
good.      A  more   strictly  analogous  cose 


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344 


COMMl'iMTARlES  ON   SALES. 


[book  II, 


N  i 


1  ■*  ■)     I 


In  Duncan  v.  Hill  ^  the  plaintiffs,  brokers  on  the  Loudon  Stock 
Exchange,  were  instructed  by  the  defendant,  who  was  not  a  mom- 
ber  of  the  house,  to  buy  certain  shares  in  various  public  uinlor- 
takinjrs  for  him  for  the  account  of  July  15, 1870.  Subseiiiu^ntlv 
he  told  the  plaintiffs  to  carry  over  the  shares  to  the  account  of 
July  29.  This  was  done,  and  the  defendant  was  furnished  with 
au  account  showing  him  to  be  liable  to  a  difference  of  <£lt!8S  lOjt, 
On  July  18,  the  plaintiffs  were  declared  defaulters,  and,  in  ac- 
cordance with  the  rules  of  the  Stock  Exchange,  all  their  transac- 
tions were  closed,  and  accounts  made  up  at  the  prices  current  on 
that  day,  without  the  knowledge  of  or  any  reference  to  tlio  do- 
fendant.  The  result  was  that  there  was  a  difference  against  the 
defendant  of  <£G013  13s.  dd.  In  an  action  to  recover  this  sum, 
the  Court  of  Exchequer  held  that,  the  rules  ol  tiie  Stock  Ex(;liiuiuo, 
regulating  the  mode  of  dealing  with  defaulters,  bound  the  delciul- 
ant;  that  the  plaintiffs,  though  themselves  the  defaulters,  niiirlit 
take  advantage  of  those  rules,  and  that,  therefore,  they  were  enti- 
tled to  recover.  On  appeal  to  the  Exchequer  Chamber,  it  was 
lield,^  reversing  this  decision,  that  the  defendant  was  not  liable 
for  anything  beyond  the  £1688,  there  being  no  implied  piomisi' 
by  a  principal  to  his  agent  to  indemnify  him  for  loss,  caused,  ,iot 
by  reason  of  I'is  having  entered  into  the  contracts  whicli  he  was 
authorized  to  enter  into  by  the  principal,  but  by  reason  of  his  own 
insolvency.^ 

liie  usage  of  the  Stock  Exchange  is  that  in  transactions  bo- 
tween  members  of  it  there  is  an  implied  understanding  that,  un 
the  purchase  of  the  stock  or  shares,  the  buying  jobber  shall  lie  at 
liberty  by  a  given  day,  called  the  "  name-day,"  to  substitute  an- 


would  bo  that  to  which  wi  have  rt-ft'iTnl, 
of  tlie  sail'  or  nii)rtga',;e  of  fciii-ilo  doiiitstic 
aiiiiniils,  wlu're  it  has  hoen  held  that  the 
accessions  pass  to  th<  biiyiT  or  inort<,'ai;eo. 
Thus  in  Fonnan  v.  Proctor,  9  B.  .Nlon, 
124,  120,  •■ .  was  held  that  a  inortgaf,'!'  l)('in<» 
upon  horses  and  swine  must  he  regarded 
ns  coverinj;  and  includin<r  the  produei'  or 
descendants  of  the  female  animals  con- 
veyed liy  the  mortgage,  thiso  lieinr;  in- 
cidents to  the  h'fral  title,  and  the  rif^lit 
of  possession  vests  in  the  inorti^afjee  for 
whouj  the  mongaj^or  holds  the  possession. 
Other  cases  agree  with  this  .See  Kellogg 
V.  Lovely,  4t5  Mich.  131;  Thorpe  y.  Cowles. 
7  N.  VV!  Rep.  (USt  ;  Kvans  i-.  Merriken,  8 
(Jill&.I.  39;  Fowler  V.  Merrill,  11  How. 
37:>  ;  (Jmnly  v.  Biteler,  6  111.  App.  510. 
In  Junl^  18<).'i,  a  dividend  was  dtfclnred 
upon  sliaies  hehl  hv  tiie  testatrix,  ])ayab!e 
on  .July  1.5.  ISfi.l,  aiid  ,Ian.  \[>,  1866.  Ten- 
titrix  tlied  on  Dec.  31,  ISf!,').  It  was  held 
that  the  January  dividend  formed  part  of 


the  corpus  of  her  re.sidu.ary  estate,  and  did 
not  pass  under  a  beiniest  of  the  aiinuiil 
income  of  smji  residuary  personal  estiiti'. 
Do  (iendre  i:  Kent,  L.  11  4  Ki|.  2-<i.  .V 
Lock  V.  V'enaliles,  '27  lii.iv.  .''I'.tS:  J'mt.N  i'. 
Mackinlcv,  31  Hav.  '2Si.  ,  Wri-ht  r 
Tucket,  f  .1.  &  H.  2iit;;  Maelaren  i:  Staiii- 
ton,  3  De  (J.  F.  &  .1.  202  ;  (live  >:  Cliv,', 
Kav,  600;  AV  Ma.xwells  Trusts,  1  ll.iJl. 
610. 

1  L.  R.  6  Kx.  2'>5. 

•^  I..  U.  8  E.\.  212. 

'  .See,  also,  Duncan  ;•.  Peeson.  I..  R.  li 
Ex  263,  n.,  in  tiie  CiMirt  of  Kx.li' .|iior ; 
and,  reversing  their  judiiiiieiit,  in  lli'! 
Kxchcpu'r  Chainber,  L.  1!.  8  j'.v  2li; 
Sutton  V.  Tatham.  10  \.  &  V..  ■27:  I'ei- 
lick  V.  Statile.s,  12  i).  15.  7'i;'  I  .Mnliott  '. 
Robinson,  L.  1!.  .1  C.  I'.  64(i ;  .M;i\fl  J- 
Paiiu',  L.  K.  4  Kx.  203  ;  I..  W  ''  l-'f- 
132 ;  Hodgkinson  v.  Keliv,  !..  K.  •'  I'']' 
496;  Grissell  v.  Bristowej  L.  l!.  :i  ' '■  !'• 
112;  L.  R.  4C.  1'.  36. 


[book  II, 

Oiitlon  Stock 
3  not  a  mom- 
public  iiiider- 
!Subsc(|iiciUly 
;e  account  of 
rnislu'(l  with 
if  XltlHS  19*. 
,  and,  ill  ac- 
hcir  transac- 
ts curi't'iit  on 
cc  to  llic  lie- 
;c  against  tiie 
(ver  tliih  sum, 
ick  Exciiaiiue, 
id  the  di'lciul- 
lulters,  luiglit 
icy  were  cuti- 
imbor,  it  was 
van  not  liable 
ijdied  pniiniso 
iS,  caused,  .wt 
whicli  lie  was 
on  of  ills  own 

lansactiiins  be- 
iding  that,  uii 
or  shall  he  at 
substitute  an- 

(l-V  cstilti',  lUid  did 
,'t   of  till'  aiiouid 
|v  ])i'rs()iial  ('<tatf. 
|l   4  Ivi.  '2S!.    St-e 
,  fi'.tM:   l'i;it'-.  I'. 
2Si.  ,    Wri-'l't  I'. 
iMiiidiiivu  V.  Slain- 
Clivc  '-.  Clivo, 
Trusts,  1  ll.iM. 


Pi-psoii,  I..  R'' 

|rt  of  Kxi'li-iMcr; 

liiluiiic'iit,    ill    till' 

1!.  S   !■>:    21^ 

I.  &  v..  -17  :  l'"l- 
[.  y.i;-  ;   Mnil.'U  ■. 

(ilii  ;  M.i\l''i  J. 
|3  :  I,.  1!  '■  •■■'^• 
lUv,   1..  K   '••  l';l; 

■    L.  li.  :■■''•'■ 


PAHT  v.] 


CORPORATIONS. 


other  ]»crson  as  buyer,  and  so  rolicvc  himself  from  further  liabH- 
itv  oil  the  contract,  provided  &uch  substituted  person  be  one  to 
whom  the  original  seller  cannot  leusonably  excei)t,  and  tliat  such 
j)erson  accept  a  transfer  of  the  stock  or  shares,  and  jiay  to  the  ori- 
uinal  seller  the  price.  It  was  held  by  Bovill,  C.  J.,  and  Wilier  and 
Keating,  dJ.  (IJyles,  J.,  dissenting),  that  this  was  not  sucli  a 
ueiieral  well-known  and  reasonable  custom  or  usage  as  could  bo 
supiiorted.'  In  this  ease  the  plaintiff,  the  holder  of  shares  in  a 
ciiinpauy  'called  Overend,  (lurney  it  Co.,  thntugh  a  broke  •  sold 
tliL'in  to  the  defendant's  jobbers  on  the  Stock  Kxchango.  After 
various  sub-sales,  the  names  of  four  jicrsons  were  given  to  the 
plaintilFs  broker  as  the  persons  to  wliom  the  shares  were  to  be 
tiansi'ei  reti.  The  plaintiirs  broker  thereupon  prepiarcd  four  trans- 
fers to  those  jicrsons,  and  the  plaintiff  executed  them,  and  the 
broker  delivered  them  with  the  shares  t^  the  brokers  of  the  pro- 
posed transferees,  who  thereupon  accepted  the  shares,  and  paid 
the  price  to  the  jdaintiff's  broker.  The  *"ansferees  not  having 
oxeeuted  the  transfers,  or  caused  them  to  bo  registered,  the  plain- 
titT  remained  the  registered  holder  of  the  shares,  and  was  com- 
pelled to  pay  calls  thereon.  The  Court  of  Common  Pleas  held 
(l>yl(s,  J.,  dissenting),  that  the  defendants  were  liable  under  their 
contract  for  not  having  indemnifu'd  the  plaintiff  against  the  calls. 
But,  on  error  to  the  Excdiequer  Chamber,  reversing  the  decision 
of  the  Court  of  Common  Pleas,  the  court  held,  with  JJyles,  J., 
that,  as  the  i)lainriff  had  transferred  the  shares  to  the  defendant's 
UDininees,  and  the  latter  had  accepted  and  paid  for  them,  though 
they  had  not  executed  or  registered  the  transfers,  the  defendants 
weie  released  from  all  further  liability  on  their  contract  to  the 
plaint!  I'f. 2 


1  Cnssrll  r.   Bristo'vo,   I..  R.  3  C.   P. 


-  (liissrll  V.  Biistow.-,  L.  R.  4  f.  P. 
3ii.  l:i  (liM'.iiig  with  tlir  c'jiiiiii  tli.it  tlie 
usii;;i>  WIS  liiiil  licciiuso  it  WMs  iimiMsun- 
aldi',  till' court  saiil :  "As  ri'ijmds  tlu'  al- 
li'j;ril  iiiiri'a<oiialilt'iu'ss  of  tin-  iisa;,'i',  the 
j;niuii(l  ■.ii','i:('stc<l  liy  tlic  coimsi'l  tor  tln^ 
lilaiiiliir;i|i|ii'iu-stnusa]loi;c'tlii'niiiti'iiali]c. 
Tlirii>  cm  \'r  iiotliiiij^  iiini'asoiiaMi'.  any 
iiiorc  ihuii  niil.iwful,  in  a  pi'ison  to  wlior.i 
it  i-*  innposi'il  to  jiiircliasi'  n  piiitii'iilar 
tiiiu'.'.  siyiin;,  '  I  will  njjriHi  to  huy,  pro- 
^id'.l  tliai.  it',  wlii'ii  till'  time  lor  roiniilct- 
iiij,'  III''  iiiiitnii'l  nnivcs,  it  should  suit  me 
to  suli^titutfaiiotliiT  liiiycr,  utile  ami  will- 


habit  or  usajie  of  always  ilcaliiif:;  on  surh 
an  uiKii'istandiiii;,  evrii  when  not  I'X- 
jifcsscd,  should  liccome  i'staiilish"d,  .such 
a  iisai^c  would  no  more  he  iiiircasonahk' 
than  siicli  a  .stiimlatioii  would  ha  iC  intro- 
duced expressly  into  eadi  iiaitiiiilar  ''nn- 
tract.  IWsidia,  a  iisaj^e  founded  w,,  ■  le 
general  eouveiiieiice  of  all  parties  (•n",ii,'ed 
ill  a  ]iartieular  departnicnt  of  la  i.css, 
can  never  he  said  to  he  iiiireiisi  .mide." 
(irissell  V.  liristowe,  L.  H.  4  ('.  I  .  iit )). 
47.  There  are  iiunicroiis  eases  to  show 
that  a  court  of  ei|iiity  wouhl  compel 
sjiecifie  perforinaiice  of  a  eont.act  such  as 
tiiis  in  reality  was,  viz.,  a  contract  for  a 
sale  to  A.,  with  a  eontract  si;\ieradded  to 


lii^  to  take    my  idace   and   perform  tliP  noiivey  to  a  person  who  shoiilu  he  named 

cnitract,  I  shall   he  at  lilierty  to  do  .so.'  by    A.,  aceoriliiig   to   the    UKa.j('s   of   tin; 

\\liat    wiiiild    !>o'.   he   unreasonable   in  n  .Stock  F.xchanire.     Walker  n.  i?arlletf,  17 

sin;,'ii'  hiiver  wouid  not  lie  so  in  a  class  of  C.  B.  44t)  ;   l.S  V,.  H.  SI.".  ;  Sliaw  v.  Fisher, 

lK>isiiiisil(aIiiiir  ill  ii  |ii,itii'ular  commodity;  5  Dp  (J.  M.  .^  (!.  i'lini  ;  I'aine  y.  "  :.,'liin- 

"iiil  if,  liuiu  a  long  suiies  of  dealings,' a  son.  L.  »J.  .3  Eii.  257  ;  L.  U.  3  Ch.  App. 


:l!i 


I    ' 


h 


\ 


it 


1  ,11, 

if': 


\, 


i    I 


1 


I  'i 


«    I 


ill 


I 


■ 


346 


COMMENTARIES  ON  SALES. 


[book  II. 


'■•  ;  It  ■;■ 


Where  jobbers  buy  stock  on  the  English  Stock  Exchange  and 
give  the  vendors  the  name  of  an  infant  as  a  transferee,  on  tlie 
winding  up  of  the  company,  and  the  removal  of  the  name  of  the 
infant  transferee,  the  factors  are  liable  to  indemnify  the  vendors 
against  all  liability  in  respect  of  the  shares.^ 

By  the  usage  of  the  London  Stock  Exch'iugc,  stockbrokers 
who  have  entered  into  contracts  for  the  purchase  of  stock,  uru. 
in  the  event  of  the  insolvency  of  their  principal,  justllied  in  im- 
mediately selling  the  stock.  A  principal  is  insolvent  witliiu  the 
meaning  of  this  rule,  when  he  is  unable  to  pay  his  deltts  in  the 
ordinary  course  of  business.  And,  in  eipiity,  an  agent  is  entitled 
to  be  indemnified  against  liability,  as  well  as  loss,  incurred  ou  be- 
half of  the  |)rincipal.'' 

W.  D.,  one  of  the  seven  persons  who  subscribed  the  memoran- 
dum of  association  of  a  company,  to  work  a  certain  concession, 
agreed  to  take  one  hundred  shares.  A  recital  of  the  articles  of 
association  was  that  K.,  who  assigned  the  concession  to  the  com- 
pany, had  agreed  to  cause  to  be  allotted  to  the  persons  subserih- 
ing  the  articles,  shares  to  be  deemed  fidly  paid  up,  ai'd  the  lifth 
article  stated  that  the  shares  of  each  subscriber  of  the  moinonui- 
dum  should  be  allotted  to  him  as  fully  paid  up,  and  that  a  compe- 
tent number  of  shares  should  be  allotted  to  E.  in  i»ursuani'c  of 
the  arrangement  which  had  been  previously  come  to.  The  CDm- 
pany  was  registered  on  Sept.  22,  1805,  and  on  that  day  the  di- 
rectors issued  to  E.,  for  work  already  done,  etc.,  £50,000  in 
debentures,  and  40'^0  shares.  W.  l>.  was  a  director.  On  Oct.  -i 
1805,  E.  re(iuested  the  secretary  to  place  shares  of  the  4000  in  the 

388;  Hawkins  r.  MalUiy,  1..  U.  4  V.<\. 
572;  L.  K.  3  Cli.  Apj).  18S  ;  Kvaiis  v. 
Wood,  L.  U.  .0  lv|.  9  ;  Shojipiird  v. 
Murphy,  10  W.  U.  <t48,  \K<5  ;  lliid<;kiii- 
soti  V.  kolly,  lb.  1078  ;  CoUvs  r.  Biistow, 
L.  H.  ti  l';<|.  14!»  ;  I,.  R.  i  Ch.  App.  3  ; 
Viscount  'lorrinj^ton  r.  Lowe,  L.  U.  4 
C.  1'.  '2ii  ;  Ciuse  v.  I'liine,  L.  1{.  6  Ki[. 
tin. 

1  IFi'iitago  I'.  Vinw,  2  Ch.  I).  nDl. 
Till!  law  on  this  point  was  scttlfd,  in  ac- 
cordanou  with  the  aliove,  in  Nitkalls  v. 
Merry,  L.  II.  7  II.  L.  Mi),  stated  .sKprn, 
p.  W'l'l,  which  thccascot'  lleritaij;o  v.  I'aine, 
2  I'll.  I)iv.  504,  followed.  A  party  pur- 
eiiasiii;{  stock  in  the  name  of  an  infant  is 
himself  liable  as  a  contriNiitor.  In  re 
Imperial  Credit  Associatii/U,  Uiehardsun's 
Case,  L.  U.  lit  K(|.  r.88. 

••*  Laeey  v.  Mill,  Crowley's  Claim,  L.  R. 
18  l''i|.  182.  Oil  this  latter  point  the  court 
siiid:  "  Last  of  nil,  it  is  said  this  is  a  lialiility 
as  distinguished  from  an  actual  payment, 
and  that  the  agent  or  person  entitled  to  be 


indcmiiiiied  has  tio  remedy.  It  is  not  ■••■rv 
material  to  consiilcr  wlictlicr  lie  is  iiitiilni 
tu  have  that  sum  paid  to  him,  oi-  .vhriliii' 
it  must  he  pai  I  direct  over  to  tic  ri' iliicr. 
If  the  creditor  is  not  a  party,  I  liilitve 
that  it  has  liecii  decided  that  tiie  |':irty 
seckiiij;  indemnity  may  hi'  eiititli'l  tu 
have  the  money  paid  ovi'r  to  him.  A^  to 
the  (d)servation  thai  he  may  coniprcniiise 
for  less,  the  answer  is,  thai  the  pcrsiin 
lialile  to  indemnify  can  ;,'o  to  ihe  creiiitur 
mill  set  him  li^'ht.  It  is  ids  own  fault 
that  the  lial)ility  remains.  Hut  he  is  cer- 
taiiily  ill  eipiity  lialile  to  iiidi'iiiiiiry,  miil 
li'ihle  to  indemnify  to  the  extent  of  tin' 
iialiility  incurred  hv  the  a;;ciit  on  liis  !"■■ 
half."  lln./.  L.  i{.  18  K(|.  I'.H.  Si'O 
.'<crinit,'eour's  Claim,  I,.  I!.  8  Ch.  !'21,  as 
to  the  authority  ui'  the  lirokers  to  si  11  tin' 
slock.  .See,  on  the  ipiestioii  of  iiidrinliilv, 
Cruse  V.  I'aine,  L.  II.  ti  Ki|.  ti  11  ;  l>mii:m 
V.  Mill,  L.  I!.  8  Kv.  24-J  ;  r.iik.rr.  I  .wis, 
L.  H.  8  Ch.  lo;!."i,  lii:.8  ;  Colliii,-o  i'. 
I  ley  wood,  U  A.  &  L.  (J;J3. 


I'AItT   v.] 


CORPORATIONS. 


847 


names  of  the  persons  mentioned ;  W.  D.  being  one  of  them,  for 
one  liundred  shares.  The  eonipany  was  afterwards  ordered  to  be 
wound  u]..  The  ofTicial  liiiuidator  phiced  the  name  of  W.  I),  on 
the  list  of  contributories  in  respect  of  the  one  hundred  shares  for 
which  he  subscribed,  and  on  suaunons  askini;  that  a  call  of  £3  a 
sh;ire  might  be  made.  Held,  that  VV.  1).'«  name  had  been  rightly 
phacd  on  the  list,  and  that  he  must  pay  the  call,  and  that  it  was 
not  eniupetent  to  persons  who  had  bound  themselves  by  the  mem- 
oraiidiuii  to  take  and  pay  for  shares,  to  introduee  an  article  into 
the  articles  of  association  to  the  ell'ect  that  they  ishould  not  be 
culled  upon  to  pay  anything.' 

All  ;ipplication  for  shares  in  a  false  name  puts  the  applicant  in 
the  same  position,  as  regards  lial)ility,  as  a  transfer  in  a  false 
nunic  ;  and,  in  both  eases,  the  nauie  of  the  applicant  will  be  sub- 
stitiiU'il  for  the  false  name.  This  princij»le  was  acted  on  in  the 
following  case:  S.,  who  was  a  large  shareholder  in  a  company, 
wished  to  take  more  shares,  but  the  directors  refused  to  allow  his 
name  to  appear  for  any  larger  number.  He  then,  at  the  sugges- 
tion ot'  the  secretary,  and  with  the  concui'it'nce  of  a  local  agent 
of  the  company,  sent  in  an  application  for  shares  signed  by  his 
(Iniigliter  I*.,  a  married  woman  residing  elsewhere,  Imt  then  on  a 
xisit  to  liim.  Jler  condition  was  not  stated  in  the  application,  and 
the  i':i(li(  r's  residence  was  given.  The  deposits  on  a[»|tlication  and 
allotment  were  paid  by  S.,  and  he  received  the  notice  of  allot- 
ment and  a  dividend,  which  was  paid,  and  all  the  notices  relating 
to  the  company,  which  were  posted  to  1*.  at  his  address.  I',  signed 
the  application  without  being  informed  or  knowing  wha'  il  was, 
and  never  told  her  husband  anything  al)out  it,  and  neither  <.!  them 
knew  that  she  was  on  the  list  till  an  application  was  made  by  the 
olVicial  liquidator.  It  was  held  that  the  case  was  similar  i.o  that 
of  an  application  for  shares  in  the  name  of  a  lietitioiis  person, 
and  that  the  name  of  S.  must  be  substituted  for  1'.  in  the  list  of 
contril)utorie8.^ 


1  /„ 

■'inirtiiiii  liiiilwiiy  ('oiii|iativ,  Ofiit's  Casi', 
I.  1.'.  i:.  i;.|.  t»7.  Sir  W. '.hinirslirMtli.it 
\\'.  !'.  li.iviiiL;  liDund  liiiiiscir  liy  iln'  nicin- 
"iMinluiii  ci|  iissiiciatiiiii  ti>  ImUc  .sliaivs  ami 
t'i]i;iy  I'cir  tlifiii,  it  was  not  ii)iii|irli'iit  tii  in- 
trmliiii'  Mil  arlicii'  into  tlii'  aitlcli's  of  a-^so- 
I'iiitiuii,  whiili  ill  fact  ami  in   trrins  says 

tliiit,  iMilvvitiistanilinj,'  licilicl  iimlciiakc,  liy  wlio  was  im'aiialili'ol'accrjiliii^^siiclia  t^  'is- 
.iiliM  riliiiiL;  till'  nii'iiKiramliiiii  ami  tiic  tcr,  and  tliat,  tlicicl'orc,  his  naiin' should  Im 
iirtirli.;  urnssoi'iatioii,  to  take  and  jiay  for  siilistituti-d  for  that  of  his  (laii<;liti'r.  Si'o 
till'  sliMics,  he  should  not  lie  calh'd  iiiion  lli'mniinj;  v.  Maddirk,  L.  U.  7  Di.  a'.t.l  ; 
'■' I'ly  lor  llicin.  Si'c  I'cH's  Case,  L.  IJ.  .')  .Musi,'iavc  .t  Marl's  Case,  I,.  H.  [>  Ivi. 
''Il-  il  ;  DruMiinond's  Cast',  I,,  ii.  4  I'h.  lOa;  Nickalls  r.  Kerncaux,  cited  in  I'ugu 
7rJ ;  .Ihihs'  Case,  I..  H.  ti  Ch.  48.  &  Sliarmaii's  Cuso,  L.  H.  13  Eij.  661). 

•  /'I  re  llurculi's  Inaurunco  Co.,  I'ugh 


A iij;lo- Moravian     ITunfjariaii     .<;    Sliarnian's   Case,    L.    K.    13    V.i\.    ftfiS. 

'I'lic  roiirt  di'i  idrd  that  it  was  char  that 
till'  dau<,'liti'r's  naiiii'  Ii.i'l  to  In"  lakcn  olf 
the  list,  and  that  the  casr  was  thi'  .sanii'  as 
tlioui,')!  S.  l.id  ln'cn  orii;inally  jiut  upon 
liic  list  of  I  iiiitrihutorirs,  and  he  liad  at- 
tcnipli'd  to  ;;>  I  lid  of  his  lial)ility  hy  tru';.,- 
fiTiiuu'  tlicslian's  into  tliu  iiuuic  of  a  |i  rsou 


:.:  ■ :  .'VI 


^ 


i 


-'."i  i 


i 


111 


I 


'  s 


1  f 


Im 


tt 


'• 


. 


1  i  I  '■ 


I 


I: 

il 


348 


COMMENTARIES   ON   SALES. 


[book  II. 


Where  a  party  buys  shares  under  a  fraudulent  misreprcsonta- 
tion  wliich  would  entitle  him  to  be  relieved  from  them,  on  a 
prompt  application  on  his  obtaining  knowledge  of  the  misrepre- 
sentation, yet  when  he  sleeps  on  his  rights  and  is  guilty  of  luolies, 
he  will  lose  the  benelit  of  his  position,  and  will  be  held  liable  as  a 
shareholder  to  the  creditors  of  the  company.^ 

A.,  throiigh  his  broI<er,  sold  shares  to  a  jobber,  from  whom  B. 
had  agreed  to  purchase  the  same  number  of  shares,  giving  tlie 
name  of  ('.,  one  of  his  wurkmcn,  as  the  person  to  whom  the  shares 
were  to  he  transferred.  A.  executed  the  transfer  to  C,  and  after- 
wards received  the  purchase-money  ;  but,  from  the  winding  up  o{ 
the  company,  the  transfer  was  not  registered,  and  the  snares  still 
remained  in  the  name  of  A.  Held,  that  !».,  as  the  real  puroliascr 
and  equitable  owner,  was  bound  to  indemnify  A.  against  all  calls 
in  respect  of  the  shares.^ 

Where  fraudulent  misrepresentation  in  a  prospectus  on  the  faith 
of  which  shares  had  been  taken,  was  discovered  by  a  shareholder. 
who  thereupon  repudiated  his  shares;  but,  owing  to  the  coni|ianv 
and  liimself  having  awaited  the  result  of  suits  by  other  share- 
holders similarly  situated,  he  took  no  steps  to  be  relieved  of  his 
liability,  it  was  held  that,  under  the  circumstances,  he  was  not 
guilty  of  laches,  and  was  not  a  contributor.^ 

Where  shares  in  a  company  had  been  transferred  into  the  name 
of  an  infant,  who  attained  twenty-one  after  a  winding-up  order 
had  been  made,  and  was  placed  on  the  list  of  contributorics  ;  it  ap- 
pearing that,  though  he  had  not  repudiated  the  shares,  he  had 
done  no  act  of  acquiescence,  except  that  solicitors  had  attended  at 
chambers  on  behalf  of  himself  and  of  others  in  opposition  to  an 
order  for  a  call ;  it  was  held  that  such  appearance  did  not  amount 
to  confirmation,  and  that  he  was  entitled  to  have  his  name  re- 
moved from  the  register  of  shareholders.*  And  where  a  transfer 
of  shares  in  a  company,  before  a  resolution  to  wind  up  voluntar- 
ily, was  made  to  an  infa  it  who  did  not  attain  twenty-one  till  alter 
the  resolution,  the  tran^  fer  was  held  void  at  the  instance  of  the 
liquidator,  though  the  infant,  after  attaining  twenty-one,  expressed 


'  In  re  London  &  Mi'iUterrancnn  Bunk, 
■Wnt^lifs  I'asi',  L.  If.  12  K(i.  :!:!!. 

•■*  Castelliiii  V.  Iloltson,  L.  1{.  10  Kq.  47. 
The  fiisu  was  dcciilfd  on  the  f,'roiuid  tliiit, 
the  aliares  ri'niainin^  in  the  iiauioofA., 
after  liis  sidi-  to  B.,  A.  was  a  trustee  for 
B.,  tu  whom  lie  had  sold,  and  tliat  B. 
was  Itoiind  tu  indemnify  his  trustee  for 
his  liability  as  sueli.  See  Kvans  v.  Wood, 
L.  1{.  5  Kii-  !•;  Hawkins  i\  Malthy,  L.  H. 
4  <  h.  '.Jl»2,  20;} ;  Siiepiiai  il  v.  Murphy,  Itf 
W.  U.  S)48  ;   Coles  u.  liristowe,  L.  U.  4 

Ch.  a. 


8  In  re  K.states  Investment  Vo. 
Niell's  Case,  1,.  U.  10  lv|.  im. 
Asldey's  Case,  L.  K.  9  Kq.  2ii;i ;  1 
Kstati's  Investnient  Co.,  L.  H.  3  K'| 
I'awle's  (^ase,  L.  1{.  4  Ch.  4i»7. 

■*  111  re  Coniinereial  Bank  Ciir]iiir 
of  India  and  the  Kast,  Wilson's  tax', 
8  Eci.  '240.  The  court  held  thai 
must  be  some  distinct  act  shown  •i\ 
part  of  the  a|>|iliennt  to  make  liiiu  li 
and  that  solicitors  apiitarinf?  fur  hi 
ojipose  a  call  was  neither  a  couliiin 
nur  uut^uiescence. 


Ml- 

Si-e 
■ss  V. 

1  •!•)  . 

-  -- » 

■atiou 

..K. 

hfir 

the 

il.hS 

IM    to 

itiiin 


PART  v.] 


CORPORATIONS. 


349 


a  desire  to  retain  the  shares.^  But,  when  there  were  laches  on  the 
part  of  the  company  in  permitting  an  infant's  no  me  tj  remain  on 
the  rouistor  for  nearly  three  years  after  they  becamo  aware  of  his 
infancy,  witliout  informinj?  his  transferor  of  the  fact,  they  were 
not  entitled  to  snbstitute  the  name  of  the  transferor  for  that  of 
the  infant,  on  the  list  of  contributories."^ 

A.  bought  of  a  jobber  on  the  Stock  Exchanire  shares  in  a  com- 
pany, and  afterwards,  the  company  in  the  moan  time  having  st  ipped 
payment,  1>.  sold  to  another  jobber  on  the  Stock  Exchanjre  shares 
in  tlic  same  company  at  a  lower  price  for  the  same  settling  day. 
On  till'  name-day,  A.'s  name  was  given  to  !>.,  as  the  }»iirchaser  of 
B.'s  shares;  li.  execnted  a  transfer  of  the  shares  to  A.,  and  deliv- 
ereil  tlie  transfer  i  nd  certilicatcs  to  A.'s  broker,  who  paid  him  the 
j)riee  for  which  A.  purchased  the  shares.  A.  afterwards  repaid 
ills  own  broker,  and  took  away  the  transfer  and  certificates,  bnt 
dill  not  execnte  the  transfer,  and  it  was  never  registered.  It  was 
lioM  that  A.  was  liable  to  indemnify  B.  against  all  conseqnences 
flowing  from  the  ownershipof  the  shares  subseqnent  to  the  execntion 
of  the  transfer,  and  that  this  liability  arose  from  the  natnre  of  A.'s 
original  contract,  according  to  the  custom  of  the  Stock  Exchange, 
by  wliich  tlie  buyer  or  seller  of  shares  undertakes  to  buy  or  sell 
from  or  to  tlie  person  wliose  name  is  given  to  him  on  the  name-day." 

Wiiere  the  litpiidators  of  a  company  seek  to  place  on  the  list  of 
oontriiiiitories  a  person  as  the  holder  of  shares,  and  he  objects, 
on  the  ground  of  his  having  transferred  the  shares,  it  is  incumbent 
on  him  to  show  that  at  some  time  or  other  there  was  on  the  regis- 
ter a  transferee  of  his  who  could  be  made  liable  at  law  in  respect 
of  tlie  ijliares.  Hence  where  ten  shares  were  standing  on  the  re- 
gister ol  a  company,  in  the  name  of  an  infant,  npon  the  company 
being  wound  up,  the  court,  on  the  application  of  the  licpiidators, 
removed  the  name  of  the  infant  frtmi  the  register  in  respect  of  the 
shai'es.  and  sid)stituted  that  of  the  transferor  ;  although  tlie  ten 
sbuns  originally  formed  part  of  a  batch  of  eighty  shares  which 


'  /■'  /•<•  Coiitiiipntal  Bank  V  ,r|i<)iatioii, 
Ciistillu'.s  Case,  I,.  l{.  o  lV(.  i")!'!.  Tin- 
s.''(/»v  111'  tlu'  tiiiiisffiee  lit  the  ilati-  of  tlu' 
tlaii>tri-  aiiil  of  \viiitliii<r  tip  was  that  iil'  all 
iiiliiiit.  Tlicif  must  be  ii  transl'iico  on  tlii^ 
ii'ui^trr.  to  be  ttindin^  on  thi'  coniiiany, 
wlio  (an  lio  niiule  liable  in  ri's|ii'i't  of  tlie 
"liuns  i-.,iisfi'rn'(l,  Curtis'.s  Case,  !,.  U.  (} 
t.'\-iii'):  LuiMsdeirs Case,  L.  I{.  4  ("li.  31. 

•  /(  ir  Kui'oi>euii  Central  Railway  Co., 
riiiMiii's  Case,  L.  R.  8  Eij.  tiSG.  In  this 
oase  till'  ciini|iany  had  knowledge  of  tlie 
infaiii  y.  Imt  tlie  transt'erof  liail  not.  In  an 
Hitioii  tiiiial!.-.,  the  infant  pleaded  iiifuney 
ill  aubwir,  and  they  gave  uu  uotiue  to  the 


traiisfi'i-nr.  In  Ca])]iei's  Case,  I,.  It.  ,3  Cli. 
4.")t>,  notice  was  j,'iven  to  the  transferor 
that  the  transferee  was  an  infant,  and  the 
transferor  was  held  liable.  See  Mann's 
Case,  1,.  i;.  3  Ch.  4;")1>,  460,  n. ;  Liims- 
den's  Case.  I,.  I{.  4  Ch.  31,  33. 

•'  lIodj,'kinson  v.  Keelv,  I-.  li.  fi  V.q. 
4!)t!.  Sre  (irissell  v.  lillstowe,  L.  R.  3 
C.  P.  112;  and,  on  appeal,  L.  H.  4  C.  P. 
3t) ;  Cni.se  n.  Paine,  L.  R.  (>  V.<\.  tJ41; 
llawkin.s  V.  Maltby,  L.  R.  3  Ch.  18S  ;  In 
re  London  &  Provineial  Starch  Co.,  (!ow- 
er'.s  Case,  L.  H.  6  Etj.  77;  Evans  v.  Wood, 
L.  li.  5  Eq.  9. 


M 


'  '■ 


■  ; 


I 


; 


y. 


■  i  •! 


: 


■  <i 


M 


11 


i 


h 


if 

■'I 

I     ■ 

:\ 


: 


350 


COMMENTARIES  ON  SALES. 


[book  II. 


had  been  purchased  on  behalf  of  the  infant,  all  of  which  eighty 
shares  had,  prior  to  the  winding  up,  been  sold  by  the  infant,  the 
purchase-money  received,  and  the  transfers  executed  by  all  the 
purchasers,  and  the  transferees  of  all,  except  the  ten  shares  in 
question,  entered  on  the  register  of  shareholders. ^ 

An  infant  shareljolder  in  a  company  attained  her  majority  six 
months  after  the  commencement  of  the  winding  up  of  tlic  ((jin- 
pany,  and,  after  due  notice,  she  was  settled  on  the  list  of  coiitiilm- 
tories.  More  than  a  year  after  the  filing  of  the  certificate  of  the 
settlement  of  the  list,  but  within  three  months  after  she  received 
notice  of  it,  and  nearly  three  years  after  she  attained  her  ni;ijor- 
ity,  she  applied  to  have  her  name  removed  from  the  list,  which 
was  ordered  accordingly,  but  without  costs.-^ 

By  the  practice  of  tlie  Loudon  Stock  Exchange,  the  property  in 
shares  when  sold  on  the  exchange  is  considered  to  pass  f lom  dmi' 
member  to  the  other  by  force  of  tlie  contract,  without  the  ex- 
ecution of  any  transfer,  until  the  settling  day  arrives,  when  the 
broker  of  the  original  vendor  calls  upon  the  broker  to  whom  he 
has  sold,  to  name  the  j)urchaser,  and  the  name  so  furnished  is  in- 
serted in  the  transfer  deeds  ;  the  first  purchaser  paying  to  the 
original  vendor,  if  the  shares  have  fallen,  the  difference  between 
the  original  soiling  price  and  the  ultimate  purchaser's  price.  IJiit, 
where  plaintiff  sold  shares,  of  which  the  defendant  became  the 
ultimate  purchaser, 'but,  between  the  original  soiling  by  the  plain- 
tiff and  the  final  purchasing  by  the  defendant,  a  call  had  been 
made,  of  which  the  defendant  when  he  purchased  was  unaware. 
the  Vice-Chancellor,  on  this  ground,  held,  that  the  plaintilV  eoiild 
not  enforce  an  equitable  title  against  the  defendant.^  On  aiiiienl,' 
the  decision  on  this  ground  was  reversed,  but  the  appeal  was  dis- 
missed, as  it  was  held  that  the  contract  alleged  by  the  hill  was 
not  proved.  On  a  new  bill  filed,^  the  fact  of  the  call  was  not  con- 
sidered material  connected  with  the  other  f.icts  of  the  caso.'^ 

A.  sold  to  N.,  a  stock-jobber,  and  B.  purchased  from  X.  five 


1  In  re  Imperial  Mercantile  Credit 
Assoc.,  Curtis's  Case,  L.  11.  (5  Kq.  in^t. 
This  case  was  i-.oiicliuletl  by  Mann's  Case, 
L.  H.  3  Cli.  •159,  n.,  where  an  infant  was 
allowed  to  reimdiate  twenty  out  of  one 
hundred  shares  held  by  him.  If  the  court 
sees  that  it  is  not  for  the  benefit  of  the 
infiint,  the  infant's  name  will  be  taken  olf, 
and  that  of  the  transferor  substituted  for 
it.     Reid'a  Case,  24  IJeav.  318. 

'■'  In  re  Alexandra  Park  Co.,  Hart's 
Caae,  L.  R.  «  Va\.  h\1.  It  was  held  that 
she  had  not  waived  her  riglits.  The  ease 
followed  ShewcU's  Case,  L.  K.  2  Ch.  387, 
where  it  was  decided  that  a  person's  allow- 
ing his  name  to  remain  for  a  lenjjth  of 


time  on  the  list  of  contributories  wit  limit 
making  any  objection,  does  not  i;iisi'  ,iii 
equity  ajjiiinst  his  applyiiij^  to  havi'  it  iv- 
moved,  wliere  no  loss  is  siistaiin'il  iiy  tin' 
est.ite  which  would  have  l)eeii  av.ii  l(  1  if 
the  apj)lieation  had  been  made  emliii'. 

*  Hawkins  v.  Maltby,  I,.  1!.  t  K'|. 
572. 

<  L.  R.  3  Ch.  Ap.  188. 

*  L.  K.  6  Ki|.  505,  allirnied  on  apiioal, 
L.  n.  4  Ch.  Ap.  200. 

-  The  court  was  of  the  opinion,  t1i:it  n* 
the  purchaser  knew  that  the  sliaivs  wen' 
sold  subject  to  the  possibility  <'!'  a  cnll 
iH'ing  made,  and  as,  ai'ti'r  the  rnll  wis 
made,  he  f.llowed  the  matter  to  re'iuiii  f"r 


PART  v.] 


CORPORATIONS. 


851 


shares  in  a  joint  stock  company.  According  to  the  practice  of 
tlic  Stock  Exchange,  N.  gave  to  A.  the  name  of  B.  as  the  pur- 
chaser, and  a  transfer  of  the  shares  from  A.  to  B.  was  executed 
In-  A.  and  B.,  and  tlie  purchase-money  was  paid  by  B.  to  A. ; 
but  I),  was  prevented  by  accidental  absence  from  homo  from 
seiuling  tlie  transfer  for  registration  until  after  the  company  had 
stopped  ])ayment.  The  company  was  wound  up,  and  the  liqui- 
dators registered  all  transfers  left  at  the  ofliee  before  tlie  company 
stopped  payment,  but  refused  to  register  the  traiisfer  from  A.  to 
H.,  and  A.  was  made  a  contributory,  and  paid  a  call  on  the  shares. 
It  was  held,  that  A.  was  entitled  to  a  decree  against  IJ,  for  repay- 
ment of  the  call,  and  indemnity  against  futiu'c  liability  in  respect 
of  the  shares  ;  and,  that,  where  the  directors  of  a  company  have 
a  discretionary  power  of  refusing  to  register  transfers  if  they  dis- 
appn»vod  of  the  transferee,  and  a  transfer,  executed  before,  was 
not  left  for  registration  until  after  the  commencement  of  the 
wimliiig  up  of  the  company ;  it  would  be  presumed,  in  the  absence 
of  evidence  that  the  transferee  was  objection.'tble,  that  the  direct- 
ors would  have  registered  the  transfer  ;  *  distinguishing  this  case 
{i.>m  tiiat  of  Birmingham  v.  Sheridan,''^  relied  on  for  the  defend- 
ant, where  it  was  held,  and  considered  rightly  so,  that  where  it 
was  impossible  for  a  person  to  be  put  on  the  register,  the  con- 
tract could  not  be  carried  into  execution,  because  part  of  the  con- 
tract was,  that  the  name  of  the  purchaser  should  be  put  upon  the 
register,  and  that  part  could  not  be  performed.  But  this  case 
dilTers  from  that,  for  this  reason  that  the  defendant,  not  from  any 
intentional  misconduct  on  his  part,  but  owing  to  his  accidental 
absence  from  home,  did  not  send  uj)  the  transfer  to  be  registered 
before  May  11,  which  if  he  had  done  it  would  have  arrived  in 
time,  and  would  have  been  duly  registered,  at  all  events,  by  the 
liquidator,  who  would  have  had  authority  to  register  it ;  but  as  it 
cani(!  up  too  late  it  could  not  be  registered,  and  the  liquidators 
had  no  ])ower  or  authority  to  register  it.^ 


four  inontliS  wilhont  takiiif;  any  stop  to 
rt'|niiliiiti'  the  traiisuction,  lie  was  lial)le  as 
tlk'  |iiii(liaser.  See  Picmlergast  v.  Turton, 
1  V.  &  C.  Cli.  98:  Clej;?  v.  Edinoiulson, 
2])c(;.  M.  &(;.  787;  Sheplierd  v.  (Jilles- 
liii',  1-  11.  ;')  K(|.  293  ;  3  Cli.  7C4.  As  to 
till' i|ni>tiiiii  ol'  contract  hetween  the  jur- 
tiis,  that  was  setth'd  liy  ('oh's».  Uristowe, 
!'■  II.  4  ( 'h.  3.  See  post,  •■vhero  tlie  case 
of  Hawkins  v.  Maltliy,  L.  W.  4  V\\.  Ap. 
200,  DM  appeal,  is  more  fully  staled. 

'  Kv.ins  (..  Wood,  L.  H.  5  Er,.  9. 

"  ;!:!  Heav.  06(1. 

'  Till'  court  said  :  "  Now,  I  can  liardly 
Mil  that  laches,  beenuse  a  man  cannot  be 
blamed  lor  being  absent  from  home  on 


business  for  twenty-four  hours;  'mt  Ptill, 
if  any  evil  eoiisei|iienc('s  follow  iioiii  that 
absence,  tiicy  must  fall  uitoii  hiiiiscir.  A 
court  of  eipiity  does  not  treat  it  as  a  case 
of  laches  for  which  a  man  should  lie  irnn- 
i'licd  ;  but  the  question  is  upon  wliom 
ihc  injury  occasioned  by  tli"  absence  is  to 
fall  ?  If  the  dci"i>ndant  hiM  been  at  home, 
tlie  re<;istration  ol  the  '  .iisfcr  would  have 
l)een  duly  made,  } ..  was  not  at  home ; 
and  the  eonseijuence  is,  whether  his  nb- 
sence  was  nci.'ii  ental  o.'  intentional,  that 
ho  cannot  get  any  benefit  fr>  m  his  ab- 
.'■ence  ;  but  the  parties  must  bo  put  in  tlie 
same  situation  as  if  he  had  been  at  home, 
and  the  delay  had  not  taken  place."    See 


■m 


(>• 


i\ 


352 


COMMENTARIES  ON  8ALE8. 


[book  II. 


The  question  of  the  effect  of  the  non-communication  of  the 
allotment  of  shares  was  decided  in  In  re  National  Savings  Bank 
Association,  Hebb's  Case.^  On  Aug.  28, 1857,  H.  signed  and  gave 
to  the  agent  of  the  company  at  Lincoln,  an  application  on  a  form 
provided  by  the  company,  and,  at  the  same  time,  paid  to  the 
agent  a  deposit  of  5».  per  share,  for  which  the  agent  gave  liim 
a  receipt,  with  a  memorandum  that  a  duly  authorized  rcct'i|)t 
would  be  forwarded  from  the  head  office  within  eight  days.  fJu 
Sept.  4, 1857,  the  directors  allotted  ton  shares  to  11.,  and  entoicd 
his  name  in  the  allotment  book,  and,  on  the  same  day,  scut  to 
their  agent  at  Lincoln,  the  letter  of  allotment  with  a  receipt  for 
the  deposit  signed  by  two  directors,  but  the  agent  did  not  deliver 
the  letter  and  receipt  to  IL  until  Sept.  9.  In  the  moan  tiino,  II. 
wrote  a  letter  to  the  directors,  withdrawing  his  application,  and 
requesting  the  return  of  the  deposit.  On  Aug.  20,  1858,  II.  liav- 
ing  insisted  upon  repudiating  the  allotment  and  threatening  to  sue 
the  company  for  the  deposit,  the  dii'ectors  repaid  him  the  dopusit. 
The  allotment  was  not  formally  cancelled,  and  II. 's  nann?  re- 
niaincd  on  the  register,  but  he  had  no  further  communicatiou 
from  the  company  until  June,  1866,  when  the  company  was  or- 
dered to  be  wound  up.  It  was  claimed  that  the  contract  was  com- 
plete as  soon  as  the  shares  were  allotted ;  that  the  directors  could 
not,  either  as  against  the  applicant  or  as  against  the  other  .sliare- 
holders,  have  recalled  the  allotment,  whether  or  not  it  had  itcon 
notified  to  the  applicant,  and  that  H.  might,  at  any  time  after 
Sept.  4.  1858,  have  enforced  specific  performance.  Duiilop  v. 
Iliggins,'^  in  which  it  was  held  that  a  coutract  was  complete  as 
soon  as  a  letter  was  posted  a^  pting  the  ofTer,  was  relied  on, 
The  court  (Lord  Romilly,  M.  R.),  dissented  from  this  contention; 
deciding  that  if  a  person  applies  for  shares  in  a  couipany,  ami  tlic 
directors  write  down  his  name  in  the  allotment  book,  they  may, 
at  any  time  before  the  allotment  has  been  communicated  to  the 
allottee,  alter  or  cancel  the  allotment.  Applications  fi»i'  and 
allotments  of  shares  are  to  be  treated  on  the  same  principles  as 
ordinary  contracts  between  individuals.  The  party  to  whom  tlie 
applicaticm  is  made  is  not  bound  by  communicating  the  aeco|it- 
ance  to  his  own  agent.  Thus,  if  A.  writes  to  B.  o(T(>ring  to  \m 
land  of  H.,  for  a  certain  sum  of  money,  and  B.  accepts  the  oITi  r, 
and  sends  his  servant  with  a  letter  containing  his  acceptaiioe, 
until  A.  receives  the  letter,  A.  may  withdraw  his  offer,  and  B. 

Walker  o.  Bartlett,  18  C.  B.  845;  Wynne  Shepherd,  L.  R.  2  C.  P.  22S  ;   Rurn.tt  r. 

V.  Price,  3  De  G.  &  Sin.   310  ;   Sha'w  «;.  Lynch,  5  B.  &  C.  58!) ;  Emniersou's  (.'ase, 

Fisher,  5  Do  G.   M.  k  G.  596;  Piiine  v.  L"  R.  1  Cii.  4.33. 
Hutchinson,  L.  R.  3   Eq.  257;    Poole  v.  i  L.  U.  4  V\  9. 

Middleton,  29  Bcay.   646 ;    Chapman  v.  >  1  H.  L.  Cus.  381. 


PART  v.] 


CORPORATIONS. 


353 


may  stop  his  servant  on  the  road  and  alter  the  terms  of  his  ac- 
ceptance, or  withdraw  it  altogether.  Lord  Romilly  distinguished 
this  case  from  tliat  of  Dunlop  v.  Higgins,  on  the  ground  that, 
the  post-ollice  being  the  common  agent  of  both  parties,  the  jest- 
ing of  a  letter  accepting  an  oiler  constitutes  a  binding  contract. 
It  was  accordingly  held,  that,  II.  not  having  agreed  to  accept  the 
shares,  there  was  no  contract.* 

There  were  negotiations  for  an  amalgamation  of  the  P.  com- 
pany with  the  U.  company,  and  VV.,  who  was  a  paid-up  share- 
holder in  tlie  P.  company,  made  an  application  to  the  U,  company  in 
pursuance  of  the  amalgamation,  for  paid-up  shares  of  the  same 
value  as  his  former  shares.  He  received  a  letter  of  allotment, 
sigueil  by  a  person  professing  to  be  the  managing  director  of  the 
U.  coni]»any,  giving  him  notice  that  the  directors  had  allotted  him 
the  luuuber  of  shares  applied  for,  on  which  he  was  to  be  credited 
with  an  amount  proportionate  to  the  assets  of  the  P.  company. 
There  was  no  evidence  on  what  authority  this  letter  was  written, 
but  W.'s  name  was  placed  on  the  regi.-ter  as  an  ordinary  share- 
holder. W.  received  the  letter  at  the  end  of  August,  while  he 
was  on  a  yachting  cruise,  and,  on  his  return  to  London,  early  in 
October,  applied  personally  to  the  chairman  and  solicitor  of  the 
company  for  an  explanation  of  the  letter,  and  objected  to  take  the 
shares,  but  was  informed  by  them  that  his  name  was  not  on  the 


Hi: 


'  If  tlie  ajijilicaiit  had  authorized  the 
ajMit  (if  tlic  I'oiiipaiiy  to  accppt  tlio 
iilloliiuMit  oil  liis  iH'half,  there  wouM 
have  liccii  a  liiiitliiif;  ((mtraut  ;  but  as  lio 
gaw  nil  sill  li  authority,  and  as  he  hail 
witliilrawii  his  ()ri<^iiial  oifer  Ix'fortj  he  re- 
iciveil  thi'  litter  of  the  dir'.'.-tors,  the  posi- 
tion (if  till  ]i.irties  was  (•hanf,'e(l,  and  tlie 
letter  liccainc  an  otler  whieh  required  liis 
acei'|itaii(T  to  constitute  a  hinding  con- 
tllii't.  Ilchli's  Case,  L.  K.  4  Kq.  12.  An 
otfiTildcs  iKit  liind  the  ]'erson  who  makes 
it  until  it  iiiis  liccn  acc('[itiil,  and  its  ac- 
ceiitance  lias  lie(  ii  coniiininieated  to  him 
111'  \\U  ai,'iMit.  Ii.  Martin  v.  Mitchell,  2 
'ai.  &  \V.  113,  ILV,  Sir  J.  PliiMier  said: 
" Whiii' line  |iarty  having  entereil  into  a 
loiitrait  that  lias  not  lieen  signed  liy  the 
"thcr  aflciwanls  repents  and  refuses  to 
Iinieccil  in  it,  I  shonld  have  felt  great 
ilitliiiilty  in  saying  that  he  had  not  a 
Imis i>i,iiiin)/i(r.,  and  was  not  nt  litierty  to 
Tci>n\v  until  the  other  had  signed,  or  in 
>nMii'  manner  made  it  hinding  upon  liiin- 
self.  lliiw  can  the  eontraet  lie  eoniph'te 
licfore  it  is  mutual  ?  And  can  it  he  coni- 
plctc  as  to  the  one  and  not  to  tlie  other  ! " 
In  tli(>  cascof  Punloi)  f.  Higgins,  1  II.  L. 
t'as.  :!81,  the  olfer  was  received  hy  post, 
and  the  acceptance  of  the  offer  was  coni- 

TOL.  I.  23 


mnnieated  in  the  same  wav.  So,  in  Adams 
V.  Lindsed,  1  15.  &  Aid.  681,  the  oiler  was 
liy  mail,  and  was  made  sillijeet  to  reet-iv- 
iiig  an  answer  liy  post.  In  all  siieh  eases 
the  post-dflice  is  made  the  agent  of  the 

iirst  party  to  r< ive  the  aeciptanee,  and 

tlu^  contract  is  held  to  be  eoiiijileted  when 
the  letter  accepting  the  oll'cr  is  mailed. 
In  this  last-named  case  it  was  claimed 
that  until  the  answer  was  actually  re- 
ceived there  coidd  be  no  bimling  cdntrael 
between  tlu^  parties.  But  the  cdurt  said, 
that  if  that  were  so,  no  contract  eciuld 
ever  be  comphted  by  mail.  Foi'  if  thfi 
defendants  weiu  not  ImiimkI  by  their  oiler, 
when  accepted  by  the  jilaintills,  till  the 
answer  was  received,  then  the  iilaintill's 
ought  not  to  be  bound  till  after  they  had 
received  the  initiliciition  that  the  defend- 
ants had  received  their  answer  and  as- 
sented to  it.  And  s(i  it  might  go  (in  nd 
infiiiitum.  The  paiiy  making  tln^  oH'cr 
nnist  be  considered  in  law  as  making, 
during  every  instant  of  the  time  the 
lett;r  is  travelling,  the  same  identiral 
oil'"."  to  the  other  jtarty  ;  and  then  the 
contract  is  coiniileted  by  the  neceptanc(! 
of  It  by  the  latter.  Sec  further,  in  a 
later  volume  of  this  work,  on  Contracts 
hy  Letter. 


'■'  it  is 


854 


COMMENTARIES  ON   SALES. 


[book  II. 


iill 


!  u  I. 


::i  ■■':  ■   i'l 


register.  On  Oct.  15,  he  wrote  to  the  secretary,  formally  repu- 
diating  the  shares.  On  Nov.  9,  the  U.  company  was  wound  up 
on  a  petition  presented  on  Oct.  7.  It  was  held,  on  appeal,  re- 
versing the  decision  of  Bacon,  V.  C,  that  there  was  no  contract 
between  W.  and  the  company  to  take  shares,  and,  that,  under 
the  circumstances,  W.  was  not  bound  to  take  shares  in  tlic  com- 
pany ;  and  his  name  was,  therefore,  removed  from  the  list  of 
contributories.^ 

If  A.  sells  shares  in  a  company  to  a  member  of  the  Stock  Kx- 
change,  and  B.  buys  shares  in  the  same  company,  at  a  dii'fcront 
price,  from  another  member  of  the  Stock  Exchange,  and,  on  the 
name-day,  B.'s  name  is  given  to  A.  as  the  purchaser  of  A.'s  sliares, 
and  A.  executes  a  transfer  of  his  shares  to  B.,  and  B.  accepts  the 
transfer  and  pays  to  A.  the  price  for  which  B.  originally  bought 
the  shai'cs,  the  transaction  constitutes  a  contract  between  A.  and 
B.,  for  the  sale  and  purcliase  of  the  shares,  which  a  court  ot 
equity  will  compel  B.  specifically  to  perform.^ 

On  the  instructions  of  \V.,  shares  in  a  company  subsequently 
wound  up  were  purchased  for  him  by  a  broker,  who,  on  the  set- 
tling day,  also  on  the  instructions  of  W.,  gave  the  name  of  G. 
as  the  purchaser,  and  the  deeds  of  transfer  were  made  out  in 
G.'s  name  and  delivered  to  him  for  execution,  and  he  for  some 
time  retained  possession  of  and  dealt  with  them.  W.  informed 
G.  that  he  had  passed  his  name  as  transferee,  and  had  also  passed 
a  cheque  on  the  company's  bankers  for  the  purchase-money  to  the 
debit  of  his  firm.  G.  took  no  step  to  inform  the  vendor  that  he 
did  not  assent  to  the  contract,  though  he  did  express  his  dissent 
to  W.  Held,  that  the  vendor  was  entitled  to  a  decree  for  spocilic 
performance  against  G.^ 


1  Wynne's  Case,  In  re  United  Ports  and 
General  Insurance  Company,  L.  R.  8  Ch. 
Ap.  1002.  In  this  case  there  "^as  no  con- 
tract between  the  parties ;  tliere  was  an 
ofFtT,  but  no  acceptance  of  tlie  offer.  See 
Shacklyford's  Case,  L.  U.  1  Ch.  567;  Don- 
jjan's  Case,  L.  U.  8  Ch.  .')40.  An  agreement 
to  place  shares,  even  although  the  person 
making  it  binds  himself  that  within  a 
specified  time,  or  within  a  reasonable  time, 
he  will  place  a  ccrtiiin  number  of  shares,  is 
a  materially  diUVrcnt  thing  from  an  agree- 
ment to  take  a  certain  number  of  shares. 
If  a  person  agrees  to  take  shares,  then  by 
so  agreeing  he  becomes  at  that  moment  a 
shareholder,  and  the  company  are  entitled, 
and  are  indeed  bound,  at  that  moment  to 
put  him  on  the  register.  But  if  he  agrees 
to  place  shares  he  doe^?  not  agree  to  be- 
come a  shareholder,  nor  are  the  company 
entitled  to  put  him  on  the  register  as  a 
shareholder,  but  he  simply  agrees  that  he 


will  procure  other  persons  to  take  the 
shares.  While  he  might  be  liable  for  lii< 
breach  of  contract  to  jilace  the  shaiv.s,  tlii< 
would  not  jdace  upon  iiiin  the  liability 
of  a  shareholder  in  case  of  the  wiiiding-up 
of  the  company.  Gorrisscn's  <  'ase,  L.  II 
8  Ch.  507. 

2  III  re  Overend,  Gurney  &  Co.,  Mus- 
grave  &  Hart's  Case,  L.  H.  5  Ivi.  1!»3. 
See  Marino's  Case,  L.  R.  2  Ch.  IM: 
Wynne  v.  Price,  3  De  G.  &  Sni.  310; 
Paine  v.  Hutchinson,  L.  1{.  3  Ki].  2J7; 
Bud.l's  Case,  3  De  G.  F.  &  J.  207. 

«  Shepherd  v.  Gillespie,  L.  K.  5  Eq. 
293.  The  principle  on  wliicli  this  imsc  win 
decided  is  that  it  is  essential  to  the  ri,!,'l:t 
to  enforce  a  contract  that  then;  slumU  be 
sufficient  testimony  of  the  assi'iit  i>t  the 
contracting  parties.  An  assent  wliidi  is 
to  be  implied  from  conduct  may  !•«'  «'' 
binding  as  an  express  as.sent.  Where  a 
man  who  has  a  title,  and  knows  of  it, 


[book  II. 

mally  repu- 
J  wound  up 

appeal,  re- 
no  contract 
that,  under 
in  tlio  com- 

the  list  of 

10  Stock  Kx- 
t  a  dii'forent 
and,  un  the 
:  A.'s  shares, 
1.  accepts  the 
nally  bouglit 
ween  A.  and 
.1  a  court  ot 

subsequently 
),  on  the  set- 
!  name  of  0. 
made  out  in 
he  for  some 
W.  informed 

11  also  passed 
[money  to  the 
;ndor  that  he 
Is  bis  dissent 

e  for  spccilie 


>Tis  to  taVe  tlio 
be  lial)le  fur  lib 
le  the  sliiiivs,  tlii'i 
liiii  the  liiil>ility 
jf  the  wiiuiing-ur 
Iseu's  ( 'iisi',  L.  11 

iiey  &  Co.,  Mus- 

Ir.  2  <'h.  Mtj; 

Id.   &   Sin.  310; 

|&  .1.  2'.>7. 
lie,  L.  K.  5  Eq. 
Iiich  this  case  was 
Itiiil  to  the  riillit 

theiv  shoiiM  be 
lie  assent  of  the 
1  assent  which  is 
llnet  iimv  I"'  "^ 
Vsent.     Where  a 

id  knows  of  It, 


I'.VUT  v.] 


CORPORATIONS. 


855 


In  Bridgcr's  Case,  In  re  General  Provident  Assurance  Co.,' 
B.,  the  local  agent  of  an  insurance  company,  being  requested  by 
llic  manager  to  take  shares  in  order  to  induce  other  persons  to 
k'conie  shareholders,  offered  to  apply  for  100  shares  on  condition 
that  he  should  not  be  called  upon  to  pay  anytliing  for  the  shares, 
but  that  all  payments  on  the  shares  should  be  deducted  out  of  his 
conunission  on  shares  sold  by  him,  and  upon  being  told  by  tho 
manager  of  the  company  that  he  would  "  bo  allowed  the  privilege 
of  paying  them  up  as  convenient,"  he  sent  in  a  formal  application 
for  IdO  shares,  which  were  duly  allotted,  and  he  was  informed  of 
the  allotment,  and  was  registered  as  the  holder  of  the  shares,  but 
ho  never  paid  any  money  on  application  or  allotment,  or  any  calls. 
His  commission  was  insufficient  to  pay  for  the  shares.  It  was 
held  that  he  had  entered  into  an  absolute  contract  to  take  tho 
shares,  with  a  collateral  agreement  as  to  the  effect  of  taking  them 
which  did  not  prevent  him  being  made  a  contributory  ;  and,  also, 
that  having  allowed  his  name  to  be  registered  as  a  shareholder  to 
induce  other  persons  to  take  shares,  he  was  j)recluded  from  dcny- 
inir  himself  to  be  a  contributory .^ 

In  Wallis's  Case,  In  re  Peruvian  Railway  Company,^  Wallis 
applied  for  200  shares  of  stock,  at  the  instigation  of  J.  P.,  the 
managing  director  of  tho  company.  The  company  allotted  60 
shares  to  Wallis,  but  no  notice  was  sent  to  him  or  to  J.  P.,  but 
E.  P.  had  notice  of  the  allotment.  The  court  below  confounded 
the  two  names  of  J.  P.  and  E.  P.,  and,  holding  that  E.  P.  was 
agent  for  Wallis  to  accept  the  shares  allotted,  hold  that  Wallis 
was  liable  as  a  contributor.  It  was  held,  on  ap[)eal,  that  this  was 
wrong,  and  that  Wallis,  neither  by  himself  or  his  agent  having 
received  notice  of  the  allotment,  was  not  liable. 

The  cases  of  Crawley  and  of  Robinson,  In  re  Pei'uvian  Rail- 
way Company,*  differ  from  Wallis's  Case  in  some  respects.     In 


stands  by  and  cither  encourages  oV  does 
iKit  forbid  the  jmrchasc,  it  is  the  doi'trine 
of  equity  tliat  he  and  all  claiming  under 
him  are  bound.  1  Fonbl.  Eq.  163.  A 
eniitraet  for  sale  so  far  coniitlet^'d  as  that 
the  vendor  has  executed  the  conveyance 
and  leicived  the  purchase-money,  can  only 
lie  anmiUed  or  altereil  by  the  contracting 
parties.  Shejtherii  v.  Gillespie,  L.  R.  ft  Ivi. 
2i_':i.  Sec  I'iekard  v.  Scans,  6  A.  &  K.  409, 
474;  iMiehess  of  Kingston's  Ca.se,  2  Sni. 
Lead.  Cas.,  6th  ed.,  769. 

'  L.  H,  9  En,  74,  affirmed  on  appeal, 
L.  R.  .'iCh.  A  p.  305. 

^  The  delil)erate  representation  by  B. 
to  others  that  he  was  a  shareholder,  when, 
acennling  to  his  own  view,  he  was  not 
really  a  shareholder,  for  the  purpose  of 


inducing  them  to  take  shares,  was  a  false 
representation,  which  as  between  hiinself 
and  the  other  shareholders  precluded  him 
from  the  right  to  deny  that  he  was  what 
he  represented  himself  to  be.  Hridger's 
Case,  L.  11.  9  Eq.  74,  80.  For  cases  of 
conditional  contracts,  see  Shack leford's 
Ciise,  L.  II.  1  Cli.  567  ;  Roger's  Case, 
L.  1{.  3  Oil.  633  ;  Pellatt's  Case,  L.  K. 
2  Ch.  527  ;  Oriental  Iidand  Steam  Co.  v. 
Briggs,  4  [)e  tJ.  F.  &  J.  191.  See  El- 
kington's  Case,  L.  K.  2  Ch.  511,  522; 
Thomson's  Ca.se,  34  L.  J.  Ch.  525  ;  Harri- 
son's Case,  L.  R.  3  Ch.  633;  Lunger's 
Case,  37  L.  .T.  Ch,  292. 

»  L.  R.  4  Ch.  Ap.  325,  n. 

♦  L.  R.  4  Ch.  Ap.  322. 


s  I 


I    ; 


Bl  ' 


856 


COMMENTARIES  ON   SALE!?. 


[book  U. 


Crawley's  Case  the  facts  were  very  similar  to  those  in  Walliss 
Cciso.  The  point  in  which  they  differed  was  that  although  Craw- 
hy,  not  having  receive*!  the  notice  of  allotment,  might  have  npii. 
diated  the  shares,  yet,  as  subscqticntly  to  their  allotment  ho  oxc- 
'juted  a  transfer  of  them,  he  thereby  anirmcd  the  contract.' 

Robinson's  Case  goes  a  step  further  than  Wallis's  Case.  In  this 
case,  Robinson  applied  for  shares  in  Company  A.,  at  the  instanco 
of  G.  P.,  the  managing  director  of  Company  B.,  who  gave  him  a  let- 
tor  on  behalf  of  Company  IJ.,  indemnifying  him  against  all  respon- 
sibility. Robinson  then  sent  in  the  application  for  the  shares,  and 
paid  the  deposit  by  a  chequo  on  his  own  banker,  althoui;li  tlio 
money  was  supplied  by  Company  li.  The  shares  were  allottuil  to 
Robinson,  and  Jiis  name  was  placed  on  the  register.  No  notico  of 
allotment  was  sent  to  him,  but  the  notico  was  sent  to  the  ollicc 
of  Company  IJ.,  of  which  E.  P.  was  the  managing  director.  Com- 
pany A.  being  afterwards  wound  up,  it  was  held  (reversing  the 
decisions  of  Malins,  V.  C),  that  there  was  no  contract  to  take 
the  shares,  and  that,  therefore,  Robinson  was  not  liable  as  a 
contributor.2 

Levita's  Case,  In  re  International  Company,^  was  a  case  where 
shares  were  allotted  to  L.  without  his  knowledge,  on  the  ap|»lica- 
tion  of  M,  Afterwards  L.,  at  M.'s  request,  sent  in  a  formal  appli- 
cation for  the  shares.  No  notice  of  allotment  was  sent  to  him. 
M.  paid  the  deposit  on  the  shares  and  received  the  share  cortili- 
Gates,  and  also  a  dividend  which  was  subsequently  declared.  L.'s 
name  was  on  the  register  when  the  company  was  ordered  to  be 
wound  up.  It  was  in  this  case  held  (alhrming  the  decision  of 
Stuart,  V.  C),  that  L.  had  constituted  M.  his  agent  to  accept  tlic 
shares,  and  that  he  was  properly  placed  on  the  list  as  a  contribu- 
tory of  the  company .* 

In  all  these  cases,  the  ordinary  principles  as  between  principal 
and  agent;  accpiiescenco  or  repudiation  of  the  agent's  acts,  ami 
recognition  or  refusal  to  adopt  the  contract  of  the  agent,  apply  as 
m  other  cases  of  sales,  or  as  in  any  other  contracts. 


I  It  was  similarly  held  in  Levita's  Case, 
L.  H.  3  Cli.  36,  where  ii  inaii  knew  he 
coiihl  not  iii;t  as  director  uidess  shares  had 
boon  trantitVrrcd  to  liini,  and  he  made  an 
application  tor  the  shares,  and  then  after- 
wards attended  the  Imard  ot  direelors  and 
actcil  as  a  director,  tiiat  that  was  a  strong 
circunistanee  to  show  tliat  he  knew  the 
shares  were  allotted  to  liim.  See  the  Mar- 
quis of  Abercorn's  Case,  10  W.  R.  548  ; 
8  Jur.  N.  s.  951,  where  the  shareholder, 
although  elected  a  director  at  his  own  re- 
quest, but  never  having  acted  as  such, 
was  not  liable  for  the  amount  of  stock 


necessary  to  qualify  him  as  a  din'ctnr,  he. 
in  fact,  not  owning  that  amount  (if  stock, 
although  witliout  liis  consent  it  liinl  liccii 
allotted  to  him. 

■■*  Therij  was  nothing  in  the  ciki-  tn 
show  that  Company  A.  either  by  it -'11"  oi 
its  agents  was  authorized  to  coniinmiii'at'' 
on  Robinson's  behalf  with  Compniiy  B.  so 
as  to  bintl  him,  and,  therefore,  in  im  no- 
tice of  allotment  had  bi-en  sent  to  liim- 
he  was  held  not  liable.  Roliinsiiii's  f'as^ 
L.  R.  4  Ch.  322,  330. 

8  L.  R.  5  Ch.  Ap.  48!). 

«  The  court  held  in  this  case,  distin- 


r.vKT  v.] 


CORPORATIONS. 


867 


Lord  Cairns,  L.  J.,  in  Pcllatt's  Case,*  lays  down  the  doctrine 
tiiat  where  a  person  applies  for  shares  in  a  conipany,  there  is  in 
goiienil  no  binding  eontraet  to  take  shares  tnitil  the  company  have 
t'uuiimiiiicated  to  him  an  allotment  of  shares ;  the  decision  in 
IlldXiim's  Cusc"'^  bi.'injr  referable  to  its  special  c'rcumstancea.  In 
IVUiitt's  Case,  the  application  for  the  sliarcs  made  by  the  party 
applying  was  subsequent  to  the  matter  having  been  arranged  bc- 
twiun  tiie  promoter  of  the  company  and  the  8ubs(  ipient  applicant, 
but  tills  did  ni>t  render  the  allotment  of  the  shares,  and  the  due  no- 
tice tliereof,  any  the  less  necessary  in  order  to  complete  the  contract 
for  the  shares.  On  the  argument,  Lord  Cairns,  referring  to 
Bioxam's  case,  said,  that  there —  "  There  had  been  a  conversation 
iu  wliich  Hloxam  was  informed  that  if  he  did  not  receive  an  answer 
within  a  certain  time,  he  was  to  consider  his  application  granted. 
But  i  I  ihe  ordinary  case,  where  a  person  applies  for  the  maximum 
lumiber  of  shares,  undertalving  to  acce[»t  them,  or  any  less  num- 
ber, and  the  company  is  under  no  obligation  to  give  him  any,  is 
nut  a  reply  to  the  application  necessary  ?  "  And,  on  the  facts  in 
the  case  as  stated,  he  subscfjucntly  held  as  above.^ 

In  this  connection,  we  refer  to  a  case  decided  in  the  Supreme 
Court  of  Canada.  Nasmith  v.  Manning*  is  a  case  on  the  allot- 
ment of  shares,  of  very  great  simplicity,  but  it  is  one  over  which 
tlie  Cun.alian  courts  struggled  almost  helplessly  and  hopelessly. 
It  w;i-  'to'  1,  on  the  facts  of  the  case,  by  three  judges,  in  the  Court 
of  Queen's  Bench  of  Ontario,  that  the  contract  was  complete,  and 
that  tiie  defendant  was  liable  for  the  stock  for  which  he  had  sub- 
scrilw  (l.  On  appeal  to  the  Court  of  Aj>peal  for  that  Province,  it 
was  licld  by  three  judges,  the  fourth  judge  contra,  that  the  defend- 
ant was  not  liable.  On  further  appeal  to  the  Supreme  Court  of 
Canada,  the  court  again  divided,  and  it  was  held,  this  time  by 
three  judges  to  two,  that  the  judgment  of  the  Court  of  Appeal  was 
right.  It  was  conceded  in  the  case  that  there  was  no  evidence  of 
notiec  of  allotment  having  been  given  to  the  subscriber  (the  de- 
fendant in  the  case)  for  the  shares,  but  it  was  claimed  by  the  two 
dissenting  judges  in  this  court  (Ritchie,  C.  J.,  and  (Iwynne,  J.), 
that  til  is  was  not  necessary  ;  that  there  was  a  completed  contract 
without  it. 

piistiiiir;  it  from  Robinson's  Case  (supra), 
tliiit  it  was  as  cliNir  as  jiossible  that  L,  in- 
temiod  M.  to  Ir'  his  nf^eiit  for  all  purposes 
io  connection  with  the  tninsaction. 

'  L  11.  2  Ch.  Ap.  .-.'27,  53.5. 

-  ri.i  Brav.  r.29  ;  12  W.  1{.  OO,"). 

'  S.(.  also  Cockney's  Casp,  3  Dfi  0.  & 
J-  I'll;  Yolland's  Case,  5  l)e  G.  &  Sm. 
M5;  Klkington's  Case,  L.  U.  2  Ch.  511. 
Tlii<  Inst  case  was  distinguished  from  Pel- 
liilt'  C  ise,  L.  K.  2  Ch.  534,  by  Lord  Cairns, 


thus  :  "The  circunistanoes  are  somewhat 
similar  to  those  of  Klkington's  Case,  but 
there  are  material  diiriTcnccs  bctvveen 
them.  In  Klkington's  Case  the  agreement 
was  constituted  by  an  actual  aiiplication 
for  and  allotment  of  shares,  followed  by 
acceptance  of  them,  by  which  agreement 
Messrs.  Elkington  were  made  sharehold- 

'«  5S.  C.  of  Can.  R.  417. 


ill) 


1 


I 


.1  ' 


■-  i  J; 
i 


I 


> 


:i! 


.1  I 

f;tl 
% 


i! 


858 


COMMENTARIES   ON   SALES. 


[book  n. 


■! 


i 


lilt 


By  the  language  in  the  stock-book,  signed  by  tlio  dcfondunt, 
under  the  unusual  solemnity,  in  stock-books,  of  a  seal,  the  dofoii- 
dant  agreed  to  become  a  holder  of  fifty  shares  of  stock  of  the  T., 
G.  &  B.  Com|)any,  and,  it  was  further  provided  that,  ''  upmi  the 
allotment  bi/  the  said  company  of  mij  or  our  mid  respective  i^hnreg, 
we  severally  and  res|)ectively  agree  to  pay  to  the  said  coniiuinv 
ten  per  centum  of  the  amount  of  the  said  shares  respectively,  junl 
to  pay  all  fiiture  cflls  that  may  be  made  on  the  said  shares  ro- 
spectivcly."  This  is  the  ordinary  case  of  a  contract  to  take  sliaros 
in  a  company  on  allotment ;  the  subscriber  to  become  a  share- 
holder only  when  the  othei  party  to  the  contract,  the  company, 
shall  have  boimd  itself  to  a  specilic  contract,  by  allotting'  the 
shares  and  notifying  the  subscriber  of  having  so  done.  In  this 
case,  to  make  this  even  more  than  usually  apparent,  the  company 
had  not,  in  fact,  been  really  organized  at  all,  much  less  had  it 
bound  itself  to  the  subscriber  by  any  definite  contract,  under  its 
seal,  or  in  any  other  way.  Singularly,  too,  in  justifying  tlie  liolJ- 
ing  of  the  two  minority  judges,  Ritchie,  C.  J.,  quotes  the  folluwinir 
language  :  "  When  an  individual  applies  for  shares  in  a  eonipany, 
and  there  is  no  obligation  to  let  him  have  any,  there  must  be  a 
response  by  the  company  ;  otherwise  there  is  no  contract."  ' 

The  applicability  of  this  language  to  that  contained  in  the  head- 
ing of  the  stock-book,  signed  by  the  defendant  in  this  case,  is  pal- 
pable. That  there  are  many  cases  where  an  agreement  to  tal<o 
shares  may  be  the  comi)letion  of  a  contract  to  do  so,  goes  without 
saying.  But  where,  as  in  this  case,  the  whole  thing  is  in  //VW, 
there  is  no  completed  contract  —  no  meeting  of  minds  —  until  the 
allotment  is  made  and  notice  thereof  is  communicated  to  the  siili- 
scriber,  who  under  his  iiand  and  seal  has  offered  or  agreed  to  take 
shaios,  and  to  pay  for  them  on  their  "  allotment  by  the  said  com- 
pany." It  is  singular,  in  a  court  which,  carrying  tin?  rule  to  tlie 
other  wrong  extreme,  held,  as  they  did,  in  another  casc,'-^  that  set- 
ting out  in  a  bill  in  equity  writings  between  the  parties  to  exiihiiu 
the  mearing  oL"  uncertain,  indelinite  language  in  an  arbitratiou 
agreement,  could  not  be  done  ;  to  find  two  of  the  judiivs,  in 
order  to  override  and  control  a  solemnly  sealed  inslnuiieiit, 
holding  that  mere  preliminary  parol  matter  entirely  dc/i"rx  the 
sealed  instrument  itself  was  to  govern  in  the  construction  of  tlif 
contract. 

The  fallacies  in  the  following  language,  by  Ritchie,  C.  -h.  are 
transparent.     The  learned  judge  very  incorrectly  says  :  — 

"  The  contract  in  this  case  was  this  :  The  company  applifl  to 

»  Per  Lonl  ruims  in  Klkington's  Case,  ^  h\   Vcnion    v.   Olivor,    11   .S.  C  ol 

L.  R,  2  Ch.  035.  Can.  U.  ut  p.  163. 


TART    v.] 


CORPORATIONS. 


859 


tlie  rcsiiojulent  to  take  shares.  The  respondent  agreed  to  do  so, 
ami  boiiml  liiinseK  under  seal  to  pay  a  percentage  on  allotment. 
Tilt'  assent  of  the  respondent  to  the  application  of  the  company, 
(Hill  the  bindin;/  a</reement  sii/hjd  ami  sealeJ  hi/  him,  hnposed  on  the 
com  I'll  III/  the  Inndinij  duty  of  allotting?  the  specified  shares  to  him, 
unci  constituted  an  agreement  compleved,  binding  on  both  ])artie8, 
wliii'h  either  could  enforce  ;  entirely  distinguishable  from  an  agrce- 
iiiL'iit  merely  resting  on  an  a|)[)lication  for  shares.  The  ap[>'ncant 
was  the  company  ;  and  the  sealed  undertaking  of  the  respondent 
was  the  acceptance  of  the  coinj>any's  offer,  and  fixed  on  the  com- 
|)iiiiy  the  obligation  to  allot  them,  and  when  so  allotted  they  be- 
came', eo  iiistantl,  vested  in  the  respondent.  In  other  words,  the 
company  sent  an  offer  by  whi'^li  they  were  bound,*  and  under 
wliich,  on  receiving  back  the  offer  accepted,  signed,  and  scaled  by 
the  respondent,  a  contract  complete  and  binding  on  both  sides  was 
constituted."  ^ 

True,  the  learned  chief  justice  pays  :  "  I  think  there  was  quite 
enough  to  satisfy  the  judge  who  tried  tliis  case,  that  the  resimn- 
(Icnt  knew  that  the  company  had  acted  on  the  agreement,  had 
treated  him  as  a  shareholder,  and  had  ))laced  him  on  the  register, 
and  so  had  notice  that  the  company  had  allotted  to  him  the  stock  ; 
anti  hud  the  application  come  from  the  respondent  to  the  com- 
pany, that  would  have  been  suflicient  to  show  that  he  knew  that 
tlic  company  had  assented  .o  his  rcijuest,  and  had  completed  the 
contract. "  '' 

If  this  had  been  correct,  the  case  would  have  l)oen  even  siinjder 
than  it  is.  Dut  the  learned  judge,  having  entirely  failed  to  show  that 
this  was  correct,  in  effect  abandons  it,  and  says  :  "  Hut  apart  from 
this,  I  think  there  was  a  eomi)leted  contract,  and  no  notice  of 
allotment  was  necessary  to  constitute  the  defendant  a  subscriber 
til  the  stock,  and  a  shareholder."  * 

From  this  it  can  be  seen  that  in  the  view  oi'  the  learned  chief 
justice  of  that  court,  in  order  to  make  a  sealed  instrument,  such  as 
that  in  this  case,  itself  govern  the  contract,  it  must  depend  upon 
the  more  accident  whether  a  subscriber  had  made  the  application 
to  a  canvasser  for  subscribers,  to  put  his  name  on  the  stock  list, 
or  whether  the  canvasser  liad  made  the  application  to  the  sub- 
scriber, in  th(!  OIK!  ease,  according  to  this  minority  holding,  there 
wonhl  be  a  perfectly  good  contract  without  any  communicatit)n 
on  the  part  of  the  other  parties;  while,  in  the  other  case,  it  would 
only  be  a  contract  when  the  subscril/er  had  sulliclent  "  to  show 


M 


'  It  is  this  nssuinjition,  wliirU  lias 
iiolliiiii,'  wiiiilcvcr  to  H'st  upon,  that  is 
tile  Imm'  oI'  tiie  li'anii'd  juJye's  fallacy  in 
tilt;  iiKitter. 


«  l'|..  431,  432. 
»  l'|..  432.  433. 
*  Page  435. 


!-i  ■ 


If 


\\H\U  t 


51, 


i  :  i 


8t;o 


COMMENTARIES  ON   SALES. 


[book  II. 


I; 


him  tliat  ho  knew  that  the  company  had  assented  to  his  rerjuent 
[manifested  by  his  subscription  to  the  stock  list,  appai'cmly], 
and  had  completed  the  contract^  ^ 

All  this  is  well  answered  by  Henry,  J.,  one  of  the  majority 
judges  in  the  court,  covering  the  facts  in  the  case.  lie  says :  "  It 
is  only,  at  the  most,  a  unilateral  contract,  if  one  at  all,  ami  oiu' 
which  could  not  bo  enforced  by  the  party  subscribing.  He  could 
not,  by  his  offer,  oblige  the  provisional  directors  to  allot  any  of 
the  shares  to  him.  A  larger  amount  of  stock  than  rcijuired  luiglit 
be  subscribed  for,  and  no  one  will  doubt  the  power  of  the  provis- 
ional directors  to  reject  such  applications  as  tiiey  pleased.  So  up 
to  the  time,  at  least,  of  the  allotment,  any  subscriber  could  with- 
draw his  offer  to  take  the  stock  ho  subscribed  for.  The  agrut- 
ment  in  this  case  was  to  receive  fifty  shares  when  allotted ;  and, 
that,  in  my  opinion,  threw  upon  the  provisional  directors  the  oiui* 
of  not  only  allotting  the  stock  within  a  reasonable  time,  but  uf 
giving  him  notice  that  they  have  done  so,  also  within  a  reasonable 
time."'^  And  again,^  "The  appellant  claims  that  the  res])ondcnt 
was  a  shareholder  in  the  company  from  the  time  of  the  allot uiunt 
of  shares,  but,  if  the  signature  of  the  respondent  to  the  agroemLUt 
was  sulHcient  to  bind  him,  then  no  allotment  was  necessary  to  l)e 
shown.  If  the  agreement,  however,  is  not  sulhcicnt  alone,  sind 
the  allotment  was  necessary,  does  it  not  legitimately  follow  that 
a  notice  of  it  became  necessary  ?  .  .  .  Does  not  the  acknowkiiirod 
necessity  for  showing  the  allotment  at  the  same  time  eharactL'iizc 
the  document  signed  as  an  incomplete  contract?  If  so  incom- 
plete, does  it  not  necessarily  require,  to  com[)lcto  it,  that  iiDticf 
should  have  been  ju'oved  within  a  reasonal)le  time  ?  ...  No  on.' 
can  bo  a  subscriber  to  stock  so  as  to  make  him  a  sharolmldi  i' 
without  the  concurrence  of  the  company  through  its  oIVkm  is.  1 
must  say  I  think  the  evidence  of  his  ever  having  been  a  share- 
holder is  wholly  insuflicient." 

The  two  French-Canadian  judges,  Fournier,  J.,  and  Taschoroau. 
J.,  of  whom  the  latter  confessed  that  he  had ''  felt  eml>arrassiu('nt 
in  coming  to  a  conclusion,"  and  had  "  vacillated  a  good  deal  al)oiit 
it,"  concurred  with  Henry,  J. 

In  the  case  the  Judicial  Committee  of  the  Privy  Council  graiitod 
leave  to  appeal  from  the  judgment  we  have  been  con  !i<leriiiir :  but 
as  the  case  was  settled  before  coming  on  for  arguuKMit,  it  was 
left  in  the  state  in  which  we  have  described  it. 

We,  elsewhere,  advert  to  the  mistake  that  is  made  in  improfv 
erly  laying  down  as  general  rules,  arbitrarily  to  be  acted  on,  iikiv 


1  ihi,i.  4:53. 

«  Ibid,  441. 


•  At  p.  443. 


r\ 


PART  v.] 


CORPORATIONS. 


861 


special  matter,  which  in  particular  cases  is  of  greater  or  less  aid 
ill  getting  at  that  which  is  the  very  essence  of  a  contract,  viz.,  the 
iiiteution  of  the  parties.  While  this  (the  intention  of  the  parties) 
is  the  all-important  matter  in  the  construction  of  contracts,  and  is 
conspicuously  so  in  every  branch  and  department  of  the  Contract 
of  Sale,  this  fact  is  too  often  lost  sight  of ;  and,  because,  in  a 
large  number  of  cases,  certain  facts  or  incidents,  such,  for  in- 
stance, as  measuring,  weighing,  etc.,  or  the  absence  of  these  acts, 
have  great  W(;ight  given  them  in  the  efforts  of  courts  and  judges' 
to  sret  at  the  intention  of  parties;  in  unexpected  contingencies 
courts,  judges,  and  jurists  have  lost  sight  of  tiie  fact  that  these 
arc  mere  aiO*  for  getting  at  the  intention  of  the  parties ;  and, 
•giving  altogemer  greater  weight  to  these  facts  or  incidents  than 
they  legitimately  are  entitled  to,  they  treat  them  as  l)eing  tiiem- 
selves  as  of  the  very  essence  of  the  contract,  and  make  them  take 
the  jilace  of  the  essential  ingredient  in  the  contract,  —  the  inten- 
tion uf  the  parties  itself ;  instead  of  treating  them  as  mere  aids 
for  ascertaining  what  such  intention  is.  It  therefore  follows, 
tliat,  when,  based  on  such  incorrect  reasoning,  and  such  altogether 
inaccurate  couelusions,  general  rules  are  thus  laid  down  for  the 
coiistriietion  of  contracts,  and  for  the  deciding  as  to  dilferent  in- 
cidents eonnceted  with  them,  such  as  the  passage  of  i)roperty, 
the  authority  of  agents,  and  the  numerous  other  (picstions  con- 
tinually arising  in  the  varied  parts  of  the  law  of  contracts,  the 
introduction  of  new  or  slightly  varied  incidents,  overcoming  the 
mere  arbitrary  rides  which  had  Iteen  too  hastily  and  unwisely  in- 
tniduced,  and  the  value  of  which  had  been  entirely  overestimated, 
shows  their  utter  unsoundness.  While  being  allowed  just  such 
wci'jlit  as  they  are  entitled  to  as  aids  to  show  what  the  intention 
is,  when  carried  Ijeyond  this  and  made  an  ecpuvalent  for  such  in- 
tention itself,  cases  arise  where  the  new  or  varied  incidents  con- 
necttd  with  those  rules  deprive  them  of  their  force,  and  show 
their  utter  unsoundness.  It  is,  in  this  way,  that  so  many  ca.ses 
arise  which  arc  called  "exceptions"  to  such  too-hastily  stated 
jri'ueral  rules;  and,  in  many  cases,  they  are  suidi  euiphatic  "  ex- 
('0]itii»iis,"  as  to  show  the  radical  unsoundness  of  such  "  rules," 
and  to  entirely  destroy  them. 

We  are  led  to  make  these  ol)servations  here  in  connection  with 
the  case  we  have  just  been  considering.  It  is  clear  that  when  A. 
makes  an  offer  to  H.  and  it  is  accepted  by  IJ.,  ami  the  acceptance 
iscoiuniunicated  to  A.  prior  to  the  revocation  of  the  offer,  we  luive 
the  meeting  of  minds  necessary  to  make  a  contract.  So,  when  A. 
makes  an  offer  to  IJ.,  which  B.  may  accept,  and  yet  direct  evi- 
dence of  the  conununication  of  that  acceptance  to  A.  nniy  Ite  want- 


■ 


■I 


t 

it 


( 


^     1 

,  - 

'  If. 
t 


'  '"'^'jf.i 


i^ 


VM 


* 


,  i 


ill 


1 


k 


i 


I 


■'!  f 


i  i!i  i  ^ 


i-v-Si- 


f,  t' 


862 


COMMENTARIES  ON  PAI.ES. 


[book  II. 


ing,  it  may  be  that  the  acts  of  A.  may  show  his  kaowlcdgo  of  such 
acceptance,  Piid  thus  it  be  rendered  clear  that  a  complete  contract 
has  beou  made  between  them.  But  it  does  not  from  this  follow 
by  any  moans,  as  a  matter  of  law  or  logic,  in  the  absence  uf 
any  such  acts  showing  in  A.  a  knowledge  of  such  accept aiai'. 
that  everything  necessary  has  been  done  between  the  parties  to 
constiti.'^  a  perfect  contract  between  them.  Yet  the  reasoninjiof 
the  minority  judges  in  the  unsatisfactory  case  of  Nasmith  v.  .Man- 
ning, in  the  Supreme  Court  of  Canada,  has  no  better  fouiulatioii 
than  this  to  rest  upon.^ 


1  Mitlicr  rcinarkalilo  feature  of  this 
e.aso  from  tlie  Siipreiiiu  Court  of  Cuiiaila,  is, 
that  (Jwyime,  .1.,  who  was  ( Ritchie, (.'.  J. 
heiiifj  one)  tlie  other  disseiitiii^  j>i'l?{''  in 
tlui  Ciise,  previously  delivereil  a  jud^iuent 
in  the  same  ease,  iu  wiiieli  lie  held  Just  the 
reverse  of  his  holdiii<{  iu  the  ultimate 
Canadian  Court.  His  tirst  juilj^meut  was 
ilelivered  in  the  (')nlario  Court  of  Common 
I'leas,  where  he  says:  "Looking  at  the 
terms  of  the  ai^reemi'Ut  hy  the  defendant 
in  the  hooks  of  tin;  company,  which  was 
si;;iied  and  sealed  hv  the  dcfenilant  upon 
the  I'.tth  of  .lunc,  IS'iit,  tiie  defendant 
agreed  to  Intcome  a  holder  of  lifiy  shares 
in  the  capital  stock  of  the  cMinpany,  and 
np'iii  itllotiiiiiit  to  pay  ten  per  cent  of  the 
amount  of  such  shares;  and  looking  upon 
the  ronstrui'tion  put  hy  the  coniii.iny  upon 
that  a,L;ieeiiicnt,  treating  it  as  an  applica- 
tior-  for  shares,  <ih  n/i/hdr.i  bij  l/nir  nrtiji- 
eiU'  of  allii/iii'iif,  and  having  ri!i;ard  to 
the  terms  of  the  printed  receipt  (whii'h 
says,  "  hcing  amount  of  slock  itU'itlM  bij 
the.  loilhiii  trrti/ir  i/i\"  Arrii.],  and  upon 
the  authorllv  of  Kedpath's  Case,  L.  M.  U 
K.J.  8(i  ;  Wall's  Case,  L.  K.  Ij  Kip  18; 
Pellatfs  Case,  L.  U.  '2  Cli.  5'27,  and 
Ciunn's  Case,  L.  K.  A  Ch.  40,  i:>.  th<-rc 
shoiihl  he  shnini  lit  li'iBi'  ben  .si/tf  »v- 
Kfthfi- ,  ri/liir  ill  wriliitii  iir  V  rb'ilhi  or  bi/ 
coititac/,  Cdiiimiiiiii'dfiii'i  til  llir  ill  I'l  Hilt  III, 
t/uif  till'  rmii/i  mil  h  id  iinip/iil  liis  up/ili 
ciilioii  ifiiil  liiiiiii'//'  iM  II  i/imrh  iti/'i;  fur 
tin;  Ji  ft  If  sliiirr.i  iii'iiiioniii  in  kii  iiijniiiinil, 
III' /'lire,  fir  oiii  br  If  hi  liiili.'r  as  a  sli'irr- 
hiili/ir."     Nasmith  v.  Manning,  2!>  U.  C. 

c.  P.  :.->. 

The  case  seemed  sulliciently  unsatisfac- 
tory before  :  this  would  seem  to  he  ii'l 
that  was  reoiiircd  to  niake  it  supreme!;,  so. 
But  even  tiiis  is  not  all.  In  th.  en.se  \'.\ 
the  Cuninon  I'leas,  Magarty,  C  .1.,  con- 
curring with  iJwynne,  .!.,  s!-.id  :  "  '.  concur 
iu  thinking  that  our  !>est  course  is  to 
direct  a  new  trial,  .'lo  .s  to  have  it  expressly 
found  as  II  fact  whi-lher  the  dch'udiint  was 
notilied,  (>/•  ri";  iml  im/iiv  in  miif  .ilia/ir,  nr 
lo.is  miilr  iii'iiiY  III'  the  niiiipaiiii  huriinj 
accepted  'liiii  us  a  stmUwlUer  accunlimj  to 


/lis  iiiliscri/iliiiii  ;  notice,  in  sulistaiice,  that 
tlie  diri'ctors  or  the  company  ussentKl  lu 
or  accepted  him  as  the  holder  of  the  siil<- 
.si-rilx'd  shares."  Vet,  in  the  ca.-e  in 
(,>ueen's  Itcnch  (N'asmith  r.  M.iiiMiii^',  .', 
Out.  Ap|i.  I'J'.t  n  ).  we  liuil  tili^  >,iiiir 
Ilagarty,  C.  .'.  alter  declaring  tliat  "Tln' 
general  priliciple  was  s<ltlat  tiial,  .ilirr 
]U(iol'  of  defendant's  suh.scription,  tluiv 
should,  ill  the  laiiguagi'  of  .Mr.  .Iii>tiiv 
(iwyiiiie,  21)  C.  1'.  Wl,  'he  shown  to  li;uv 
heeii  some  response,  either  in  wriiiii;,'  ^i 
verhallv,  lU'  liy  condact,  I'liiiiiiiiuiir  iim  i  ' • 
thr  ilr I'l- nil  lilt  that  the  comiiany  liad  ;ii- 
cepted  his  application  and  hi'iisill  us  ,i 
shaii'h'ilder,' "  actually  lioldiiig  tii,;'  tlir 
defendant  was  lialile,  where  the  eviileiu" 
and  tiiuling  simply  were,  in  cll'ert,  tiiiit 
there  was  an  attempt  to  coiiimniiie:ite  ijn' 
fact  to  the  dctendani,  hut  noactaal  "oim- 
mail inil ill'/"  of  it  to  him.  We  do  not 
find  that  Hitchie,  C.  ■!.,  or  any  of  tlu' 
other  Judges  in  the  case  delivered  iiinrc 
than  OIK!  Juiigiueiit  eai'h.  We  eoiisiilir 
the  case  entirely  too  clear  fiU'  doiiKl  liiut 
the  Judgments  of  the  niajouty  of  tlie  On- 
titrio  Court  of  Appeal  aiol  of  the  ninjority 
of  the  Supreme  Court  of  CiiM.eli  \m:v 
right  ;  and  therefore,  necessiiiiy,  lli:it  tin' 
Judgments  of  the  majority  of  tlie  Out, iriu 
Court  of  (,)iieen's  Iteiich,  and  ol  the  mill- 
orily  of  the  .Su|)renie  Court  of  <  ';ui;i'l:i  hiti' 
wrong;  the  judgment  of  Cwyniie.  .1..  in 
the  Comnion  I'leas,  Iv.ing  niMeh  >ouiHl(r 
than  his  reverse  ju'lgnient  in  the  .Snpreiiii' 
Court  of  Canada. 

There  is  another  point  in  tlii>  i';isi' 
(Xismith  V.  Manning,  .'.  Out.  .App.  i:!'', 
i.'is)  which  rec|uires  notice.  In  the  i  o'lii 
of  .Appcil,  ihij'iin,  .1.  A.,  said:  "Tli'' 
learned  Judge  who  presiileil  at  the  list 
trial,  -vhilst  finding  that  the  diveitor'i 
allotted  to  the  defendant  lifty  sli:liv<  el 
Htocl;,  has  not  found,  and  the  evjili'ini' 
would  not  h.ave  warranted  him  in  liiidiiiL', 
that  any  letter  or  notice  of  alloliiieiit  \va^ 
sent  to  him.  The  fair  inl'ereiiie.  niHriii 
fact  the  only  iiifereiiee  to  he  fairly  dr;i«ii 
from  the  evidence  is  that  no  siiel:  iioticf 
was  iieiit.  .  .  But  it  i.s  uf  cuur.se  iiiimu' 


5  'ii 


[hook  II. 

Ige  of  such 
to  cuiitract 
this  follow 
absence  of 
accoi)tam;i'. 
)  {tarties  tu 
easoniiij^tjf 
itii  ('.  Man- 
fuuiuiutiuii 


uibstanci',  that 
iiy  assi'iitnl  tu 

lll'l-  lit'   tilt'  suli- 

tlic  ca.-i'  in 
I.'.  M.iiiiiiiiu',  0 
iml  tlli^  sanii' 
inj{  tliat  "Till' 
/(•(/  tlial,  ulur 
•liptioii,  tlicrt' 
)!'  Mr.  .Iiisticy 
.shown  til  liavi' 
•  ill  vMiiiiij;  i>r 
iiiintiiir'ihiij  In 
ii|iaiiy  liail  at- 
1  iiiiiisi'll'  as  a 
liiiiif,'  til.;'  till- 

1'    tilt'    fViill'IlO" 

lili   fll'fit,  that 

liiiniuniiati'  tlif 

u'ttial  "  i'""i- 

Wf  till  not 

any  '<(  tlio 

livfii'il  iniirf 

\Vl'     filllsiillT 

iliiiihl  that 
y  111'  !li.'  On- 
till'  liiajnrily 

Caiiaila  wfiv 
ilv,  that  till' 

i  iW  Oiitaliii 

1  111  ill-'  iiiin- 
•  'aiiii'la  «iTi' 

WVIIIIi',  .1.,  ill 
nil  siilllliliT 
lilt"  Sii|iri'llii' 


It 


III  tlii-i  i'a<i' 
.  A|ip.  i:i's 
In  thf  I '"111 

sahl:  ••Thf 
at    till'  last 

tln>   iliri'i'Iars 

rty  sliaiv^  I'f 

tllf     .'Vill'lll'l' 

III  ill  liii'liiir' 
lliitiii.iit  wa> 

it'iifi',  anil  'ill 
fairly  iliawii 

II  siirl;  U'ltit'' 

couf.sf  iiiiiiw- 


I'AUT  v.] 


CORPORATIONS. 


363 


hi  a  case  stated  by  us,  antt'  p.  355,  B.,  the  local  agent  of  an 
insurance  company,  being  retiucsted  by  the  manager  to  take  shares 
ill  oilier  to  induce  other  persons  to  become  shareholders,  offered 
to  iipl'ly  fi'i"  1^^  shares  on  condition  that  he  should  not  be  called 
ii|i(in  to  pay  anything  for  the  shares,  but  thtit  all  payment  on  the 
.shares  should  be  deducted  out  of  his  commission  on  shares  sold 
l)v  iiini,  and  upon  being  told  by  the  manager  of  the  company 
that  lie  would  "be  allowed  the  privilege  of  pitying  them  up  as 
ctiuvenicnt,"  he  sent  in  a  formal  application  l\»r  100  shares,  wliich 
wciv  duly  allotted  to  him,  and  he  was  informed  of  the  allot- 
ment, and  was  registered  as  the  holder  of  the  shares;  but  he 
never  ptiid  any  money  on  application  or  allotment,  or  any  calls. 
He  .sii;!ie(l  a  proxy  paper  under  5  Mrotest  that  it  should  not  cancel 
his  iigfcement  as  to  the  non-i)ayinv.'nt8  on  his  shares,  and  attended 
two  meetings  of  the  company,  ilis  commission  was  insidlicient  to 
|iay  lor  the  shares.     Held,  that  he  had  entered  into  an  absolute 


ti riiil  hi'«  111'  rcitivcil  notice  if  he  diii  in 
iiiit  /I IV, If-  i7  within  a  rcasoiiiililc  time 
altfi  tilt'  niitiif.  Till'  Icanit'il  juilp'  has  iio- 
whiiv  loninl  that  lit'  diil  ri'i'civf  notice." 
Thru  Inlliiws  thisfXtraiirtUnaiy  laii^ua;,'!'  : 
'•  Willi. lilt  cxiircssin;,'  imy  tiiiiiiinii  as  tu 
till'  f,'iiii  ml  t'll'tit  tif  till'  ai't'ciitaiiif  iit'  an 
olhi  I  \  httfi-  tiiily  |nisti'il,  till'  ]iiiiiiiiilt' 
i'>lalili.slii'il  liy  l>iiiilii|i  I',  llii^'^'ins,  1  II.  L. 
('as.  ".,S1,  li.is  no  n|i|ilii'atiiin  to  tin-  |irf.s- 
fiit  c:iM'.  In  rcvi. ■Willi,'  that  tlt'ri.sion  in 
HniiM'liulil  Fill'  &!'.  <'iini)iiiny  t'.  (iiaiit,  -11 
1..  T.  s.  .X.  ti'.iS,  Ha^'allay,  1-  .1.,  say-s  at 
|i.  'Jii'i  ;  '  I  think  tlif  )ii'iii('i|ili'  t'stahlishftl 
iiy  that  rasf  is  liniitcil  in  it.s  aiijilii'ation  It) 
la.Mv  iiittliiih,  liy  j;i'iii"al  usa^f,  orot'thr  if- 
hitimi  l>i  twi'fii  till'  iiartifs  to  any  jtai tlfiiliii' 
tra'is.ii'tiiiii,  or  of  tiif  tfriii.s  in  whiih  tin' 
tilli'l  is  iiiaili',  till'  iiici'jilmhr  «/  siic/i  ojl,  y 
Int  II  litur  Ihviniifh  tin'  pusl  is  rxjiirss/ii  or 
imjiIiiiVii  aiithiifKiil.'  If  till'  h'ariii'il 
jiiili;i'  hail  I'oiliiil  ii.s  a  fiii't  that  llotift'  of 
alliiliii.iil  hail  Iwi'ii  st'lit  hy  (lost  to  tlif 
ili'I'iiiihiiil.  tlit'ii  1  think  wt'  must  havf 
lii'lil,  ill  ilt'lt'i'i'iii'i'  to  till-  aiithoritii's,  that 
ihi'i'r  was  a  t'oiiijilt'tftl  I'ontiaft  liftwffii 
till  |iarliis."  Ami  this.  aftiT  liavin<;  just 
IhIihi-  .|iiiitt'il  till'  lanj,'iia;,'t'  of  llai^i,'iillay, 
h.  .1.,  slmwili;,',  in  fH'i'i't,  that  that  wtnilil 
Mill    liiiki'    a    i'o|ii|ili'trtl    t'ontiart    ln'twrfll 

till'  putiis  ;  tlii'i'f  liriiif,'  iititliin;:  what-  vtT 
ill  Na>iiiitli  I'.  Manning,'  to  show  that  '•///!' 
ii'WIiliiiiir  (i/ Kiirli  (I /fir  III/ (I  tiltir  Ihniinih 
Ihi'  /lost  ini.i  i.i/irisslii  or  iinitlirilhi  iiulhor- 
niil." 

This  is  rt'ally  worst*  tlmn  t'ithor  of  thf 
awful  iiiiii;i'rii's  of  hliititlfrs  with  whirh 
till' .  a^.'  ahiiiiiiils  on  tilt'  othi'r  jKiiiit  whifli 
«i'  havr  I'xaiiiiiiftl.  Thi'  case  of  Diinlop 
'■  lli;,".'iiis,  1  II.  I,.  Cas.  ;{81,  wn.H  a  nisti 
wilt  If  till'  wlioli"  I'ontriiL't  was  "by  jtost," 


nnil  not  a  i|iii>Htion  of  allotnu'iit  of  .sli.'ircs, 
notitifti  liy  |iost,  wlicri'  thf  a|i|ilit'ation 
was  not  liy  jmst.  So,  in  thf  othfr  fiisf 
fitfil  hy  thf  C'aiiatliaii  JikIki'  (liiirton,  ,1. 
t\.),  r.aj,'i;ally,  I-.  .1.,  whinn  hi'  t|notfs, 
niakfs  thf  .sanif  ilistiiiitioii,  thus  :  '•  It  lias 
hfi'ii  fstalilishfil  liy  a  sfrifs  of  aiithoritifs, 
iiii'liiiliiii{  I)iiiilii|i  f.  Ili>.';;iiis,  I  II.  I..  Cas. 
lis],  in  thf  lloii.sf  (if  Loials,  aii'l  Harris' 
Cast',  I,.  IJ.  7  Ch.  fiS",  in  thf  Court  of  Ap- 
peal  in  I'liaiiff  ry,  that,  if  mi  ojli  r  ii  iikh/i-  hi/ 
litli  r,  whii  h  expressly  or  iinplii'tlly  author- 
izes thf  sfiitlin;,'  of  an  lUt'eptaiH c  of  sneli 
an  tiller  hy  post,  ami  a  letter  of  iieeeptaneL' 
;.iiipeily  ailili'tsst'tl  is  ]iiisteil  in  tliie  tiinc, 
a  i'ti|ii|ilete  eontraet  is  niaile  at  the  tiini! 
when  the  letter  of  aeeeptaiu'e  is  postetl, 
thoii^'h  there  may  he  ilelay  in  its  thlivery." 
The  lliiuseholil  Fire,  &e.  Co.  V.  (Jrant,  41 
L.  T.  N.  s.  ;Ki1. 

What  was  i  lainietl  in  the  case  simply 
was,  that,  where  a  letter  accepting;  an 
olh'r  is  ili'iippeil  into  the  ptist-olliit!  liy 
the  .11  Tt'ptor  III  llir  rii/insl  nj  lln-  njliirr, 
whellnr  the  rei|llest  he  express  or  illl- 
plitil,  l/iiii  the  loiitiact  is  eoinplfte,  and 
the  iliieptor  is  lint  respiiii>ilih'  for  thhiy 
or    llif^liiieliee   tif    the     post -iilliee    ollieials. 

III.  2'.'!'.  This  IS  Very  tar  fioin  waiiant- 
iiii;  the  statement  hy  riiiitoii.  .1.  .\.,  that 
the  inert'  tart  that  notice  of  allntllient  is 
st'lit  hy  post,  no  niatti'i'  in  what  way  the 
ap|ilii'atioii  for  shares  may  have  '.  eeii 
lliaile,  eom]i'etes  the  contract  lietWfell  the 
|iartifs,  without  aiiythinj^  whatever  to 
show  that  the  postiny  of  such  letter  has 

1 n  "  ex|>re.ssly  or  iinplieilly  aiitlioii/ed." 

We  examine  this  t|iiestiiin  further  in  a 
later  voliinie  of  this  work,  in  ilisciissiiij;  the 
general  tiuestioii  of  Contract  hy  LettiTs. 


H 


n. 


I 


^11 


I-    4 1 


,1   i 


864 


COMMENTARIES  ON  SALES. 


[book  II, 


contract  to  take  the  shares  with  a  collateral  agreement  as  to  tlie 
effect  of  taking  them,  which  did  not  prevent  him  being  made  a 
contributory  ;  and  that,  having  allowed  his  name  to  be  registered 
as  a  shareholder  to  induce  other  persons  to  take  shares,  lie  was 
precluded  from  denying  himself  to  be  a  contributory.*  In  this 
case  the  application  was  made  by  the  manager  of  the  coinpanv 
to  B.  to  take  the  shares,  —  a  point  influencing  the  mind  of  Hitcliii'. 
C.  J.,  in  Nasmith  v.  Manning,^  but  nothing  was  thought  of  tiiat 
as  rendering  unnecessary  an  allotment,  and  a  notice  thereof  to  B. 
Notwithstanding  the  ai>plication  was  shown  to  have  been  ,so 
made,  Malins,  V.  C,  laid  down  the  rule  generally,  — "  In  order 
to  bind  a  person  us  a  shareholder  or  contributory  of  a  company. 
it  is  surticient  to  show  an  application  for  shares,  an  allotment  in 
consequence  of  such  an  application,  and  a  communication  uf  tiic 
fact  of  allotment  to  the  applicant."  ^ 

Two  actions  were  brought  by  the  plaintiffs  *  for  non-acceptance 
of  shares,  and  for  calls  ;  and  cross-actions  were  brought  for  rocov- 
ery  of  de[)osits,  and  for  damages  for  not  duly  allotting  shares; 
turned  into  a  special  case.  The  defendant  in  one  of  the  actions 
applied  for  shares  on  June  8,  but  no  allotment  was  made  till 
Nov.  23.  On  Nov.  8,  he  withdrew  his  api)lication.  The  facts  in 
the  other  action  were  the  same,  except  that  the  defendant  had 
never  withdrawn  his  ai)p'ication.  The  Court  of  ExehequtM-  iicld 
that  the  allotment  must  bo  made  ivithin  a  reasonable  time ;  that 
the  interval  from  June  to  November  was  not  reasonable:  and. 
therefore,  that  neither  defendant  was  bound  to  accept  the  shares 
allotted,  and  they  gave  judgments  for  both  the  defendants.'' 

The  case  of  In  re  British  and  American  Steam  Navigation  Com- 
pany, Ward's  Case,®  was  one,  where,  at  the  instance  of  the  pro- 
moters of  a  limited  company,  and,  as  he  was  was  io\{\,  pro  forimU 
W.  signed  an  application  for  200  shares,  and  at  the  same  time 
executed  a  blank  transfer.  He  paid  nothing,  never  exocuteil  the 
articles  of  association,  received  no  notice  of  allotment,  and  lieurd 
nothing  about  the  company  till  he  received  noti  o  from  the  li(|ui- 


J  Biiil^'oi's  Case,  L.  R.  9  Kq.  74. 
See  r.'lhitt's  Case,  L.  K.  2  Ch.  527  ;  Klk- 
ington's  ras.-,  L.  H.  2  Cli.  .'51 1  ;  Thom- 
son's Case,  34  L.  J.  Cli.  525  ;  Harrison's 
Cuso,  L.  K.  3  Ch.  633 ;  Simpson's  Caso, 
L.  1{.  4  L'h.  184;  Ko^.-rs's  Case,  L.  U.  3 
Cli.  t.'?3  ;  Oriontai  Inland  Sti'am  Co.  v. 
Brijj-^s,  4  Do  <;.  K.  &  .1.  191  ;  Shack'.!- 
ford's  ("as.-,  L.  R.  1  Ch.  567,  570  n.  ; 
Lanjji-r's  Case,  37  L.  .T.  Ch.  292. 

«  5  S.  <'.  of  (an.  K.  417. 

•  Hridger'sCase,  L.  R.9  Eq.  at  p.  78. 

*  Ranisgato    Viutorial    Hotel    Co.    v. 


Montefiore;  S.ime  v.  Ooldsmid,  I..  1!.  1  Ex. 
109. 

*  In  this  case  it  was  chiimcil  that  slmips 
might  be  complete!}'  allottfil  witiuint  any 
conimunieation  to  the  applicMnt,  ni  ;ii> 
ceptance  by  liim,  and  Ex  pm-l''  I'.l.ixnni, 
33  L.  J.  Ch.  519,  574,  and  /:-■  /"/'' 
Cookney,  3  Do  (5.  &  .1.  170,  wimv  ivliid 
on  ;  but  the  eourt  di.stingiiislicil  thi'^i 
rases,  and  referred  to  the  (iiiljiiiiciit  ot 
Turner,  L.  ,1.,  in  Ex  jinr/i'  ISiox mi.  .'ill 
L.  J.  Ch.  575,  57(i,  and  dissuntL'd  I'roiii 
the  claim  maile  as  aliove. 

«  L.  R.  10  Ei\.  659. 


[book  II, 

eat  as  to  the 
oing  made  a 
be  registered 
larcs,  ho  was 
ry.*  Ill  tliis 
the  company 
1(1  of  Ritcliic. 
light  of  tliiit 
thereof  to  B. 
ave  been  so 
—  "111  order 
f  a  cunipanv. 
aHotniont  in 
cation  of  tiic 

>n-accoptanci' 
rht  for  rocov- 
iting  shares; 
if  the  actions 
:as  made  till 
The  facts  in 
L'foiidaiit  had 
cheiiucr  held 
le  time ;  that 
oiiable  :  and. 

)t  the  shares 

ndaiits.'' 
ligation  Com- 
of  the  pro- 
,  pro  fiintiiU 

e  same  time 
xcciitcii  the 

t,  and  lieard 

1)111  the  liiitii- 

Lil,  L.  \l  1  Ex. 

Jitni'iltliat  •shares 

Itnl  witlidiU  any 

l)|ilRMHt,  or  ai> 

jtitrt'-  lil'ixaiM. 

mill    A'.''  i>'ii't' 

170,  wiTi'  ivlii'il 

|ii;^uislii'il   tlii'M' 

le    jiiilL,'iiii'iit  ot 

\r>r  Uiox  Mil,  :W 

dissontiMi  I'rom 


PART  v.] 


CORrORATIONS. 


365 


dator  appointing  a  day  to  settle  the  list  of  past  members.  It 
was  held  by  Stuart,  V.  C,  that  he  was  entitled  to  be  taken  off 
the  lists,  though  it  appeared  that  the  shares  liad  been,  in  fact, 
allotted  to  him ;  that  deposits  and  chills  had  been  paid  on  them  by 
some  persons  without  his  knowledge  ;  and,  that  by  the  tran.«fer 
executed  i)y  him  in  blank,  and  subseipiently  lilled  up,  the  shares 
had  been  transferred  to  one  of  the  promoters. 

In  dealing  with  the  case,  the  rcmaiks  of  the  court  are  peculi- 
arly applical)le  to  the  dissenting,  and,  we  tliink,  entirely  errone- 
ous jiidgu.'  :it  of  llitcliic,  C.  J.,  in  Nasmith  v.  Manning,'  in  the 
Supremo  Court  of  Canada.  It  will  be  noticed  that,  in  this  case, 
a.s  ia  that,  the  application  for  shares  was  made  at  the  instance  of 
the  promoters  of  the  company,  as,  in  fact,  in  large  nunil)ers  of 
such  cases,  applications  are  so  made.  As  that  is,  notwithstand- 
ing the  extraordinary  stress  laid  upon  it  by  Ritchie,  C.  .J.,  an 
entirely  immaterial  matter,  it  is  in  this  case  altogether  disre- 
irarded.  Ihit  the  necessity  of  a  notice  of  allotment  undcM*  such  a 
state  of  facts  is  clearly  shown.  In  dealing  with  this  point  in  the 
ease,  Stuart,  V.  C,  said  :  — 

"The  case  against  them  is  rested  upon  two  grounds:  First, 
that  Messrs.  Ward  became  by  contract  shareholders  or  partners 
in  this  company.  In  my  opinion,  th.at  ground  is  unsustaiuable, 
and,  indeed,  it  was  not  very  much  relied  on  by  the  counsel  for  the 
liipiidator.  In  order  to  have  a  binding  contract,  then;  must  be 
certainty  as  to  the  8ul)ject-matter,  and  the  assent  and  full  kuowl- 
edire  of  both  the  contracting  parties.  What  is  said  in  this  case 
to  constitute  the  contract  is  an  application  for  a  certain  ninnber 
ot  shiires,  or  for  such  other  nunibei'  as  should  be  allotted.  lUit 
tiiis  is  no  agreement  to  take  any  certain  number  of  shanks.  When 
an  a|)plication  for  shares  is  made,  and  that  a[)plication  is  granted, 
and  certain  shares  allotted,  and  the  allotment  is  conimunicatcd  to 
the  applicant,  a  contract  may  be  said  to  be  entered  into.  IJut  in 
this  ciise  nothing  Avas  communicated  to  the  applicant  as  to  the 
iiunilier  of  shares  allotted,  or  whether  any  shares  were  allotted  to 
liim  at  all.  There  is  not,  therefore,  here  that  sort  of  assent  or 
iieceptaiice,  or  that  certainty  as  to  the  sul>ject-matter,  which  is 
necessary  to  the  validity  of  a  contract."  ^ 


'  nS,  p.  ofCnn.  R.  417. 

•  Wallis'Oiisr.  I,.  It.  4Ch.  32.');  Craw- 
l-',v'<  Ciis,..  //..  ;iJ2  ;  Koliinson's  ('use,  //;. 
Mil;  (iiinii's  Ciis..,  L.  1{.  3  Ch.  40,  and 
tli.Mvli.ilf  tivn, I  of  tliL'  wcll-dt'cidiMl  Kn^- 
li»li  casi's,  nro  to  tlic  siiine  rll't'rt.  Any 
Mses  wliicli,  ii|iiiarcntly,  hold  a  difTcrciit 
liwtrini',  arc  citluT  explained  on  their  spe- 
cial ciiLiiDistances,    or    are  disapproved. 


In  Oiinn's  Case,  !..  R.  3  Ch.  40,  .Sir  .lolm 
Holt  fullv  discusses  the  easi-s,  .showing 
that  liotli  llloxarn's  C  ise,  H:\  I'.env.  .O-Jit, 
ami  Cookney's  Case,  3   I)e  C.  &  .1.  170, 

deiieiidi'd   on    s| iai   circuinstaiiees,    and 

dill  not,  as  was  contended,  deteiiiiine  the 
simple  i|nestion  that  all  that  was  ne- 
cessary to  constitute  a  shareholder  in  a 
company   was,  that  there  should   be  an 


I   '1 


1 1 


866 


COMMENTARIES  ON  SALES. 


[book  II. 


Where  a  party  signs  the  memorandum  of  association  of  a  com- 
pany he  contracts  to  take  the  number  of  shares  for  which  iii' 
subscribes.  Thus  S.,  in  1865,  agreed  to  become  a  director  of  a 
company,  and  signed  the  memorandum  of  association  for  200 
shares.  The  articles  of  association  empowered  the  directors  tu 
decUne  to  commence  business  unless  two-thirds  of  the  capital 
were  subscribed.  S.  attended  the  lirst  meeting  of  the  diicctofs, 
and  liaving  unsuccessfully  opposed  a  resolution  to  connntiicc  Ijiisi- 
ness  before  two-thirds  of  the  capital  had  been  subscrilitd,  stated 
that  he  should  resign  his  directorship;  but,  at  the  recpicst  of  the 
directors,  postponed  his  resignation  till  a  further  day,  wiien  it 
was  accepted.  The  company  carried  on  business  and  niiul''  sorac 
dividends,  but  was  in  February,  1870,  ordered  to  be  wound  up. 
S.  was  not  treated  as  a  member  of  the  company  after  his  resi<;iia- 
tion,  and  no  shares  \vere  allotted  to  him,  and  his  name  was  never 
placed  on  the  list  of  shareholders.  Held,  that  he  was  not,  liy  the 
lapse  of  time,  and  by  the  circumstances  of  the  case,  exouorateii 


'iV 


Bppliciitioii  for  sliares  to  tlio  compiiny, 
and  thiit  thu  iipplicant's  name  shoiiUt  he 
placed  by  the  company  on  the  i'('{(ister  in 
pursuance  of  that  application  ;  that  mere 
appliuiitioii  and  entcrinj;  on  thu  i-i'iri-iter 
of  shareholders  must  Iw  held  sulficirut. 
Lord  Justice  Rolt,  in  refutiii<;  this  i-dmIvii- 
tion,  said:  "I  think  that  on  principle, 
and  without  reference  to  the  authorities, 
that  proposition  is  not  sound.  I  cannot 
a^ree  that  there  is  any  fallacy  in  likenin<? 
tlie  contrai't  between  a  company  and  a 
person  who  makes  an  anplication  to  be- 
come a  meinlier,  to  an  ordinary  contract, — 
the  circumstances  are  dilferent,  but  the 
priniiiples  are  identical.  Theri;  must  be 
the  consent  of  two  parties  to  a  contract. 
One  man  may  make  an  otfer  to  another, 
and  .say,  '  1  agree  to  buy  your  estate ; ' 
but  the  pei'son  to  whom  he  has  made  tho 
offer  must  say,  '  I  a«ree  to  .sell  you  the 
estate,'  or  he  must  do  something  eipiiva- 
lent  to  an  acceptance  ;  something  which 
satisfies  the  court,  either  l)y  words  or  con- 
duct, that  the  offer  has  been  acce|ttcd  to 
the  knowledge  of  the  person  who  made 
the  olfer.  /  t/iiiih  that  is  i-eqimiti'  in  Ihc. 
case  of  (in  appliciition  for  slutirs,  just  as 
ill  the  disc  of  anil  other  contract."  It 
were  stranj^e  indeed,  if  it  were  otherwise. 
And,  further,  after  disposing  of  l<loxam'.s 
Case,  33  Bi'av.  .Iii),  and  Cookncy's  Case, 
3  De  G.  &  ,1.  170,  he  says  —  "  The  case  of 
Oakes  I'.  Tuniuaml,  L.  K.  2  H.  L.  325,  is  of 
the  .san»e  character.  In  that  ca.se  there  was 
nn  application  for  .shares,  and  a  letter  in 
the  ordinary  form,  in  the  fullest  manner 
announcing  the  nccei)tancn  of  the  nnnli- 
cant's  offer,  and  that  lie  was  a  shureholuer. 


Everything  was  complete;  ami  tliprofof 
to  draw  a  conclusion  from  that  cum;  tliatn 
mere  ap))lication  for  shares,  followi'd  In- 
placing  the  name  on  the  regist<r,  is  suffi- 
cient, i.s,  I  think,  out  of  the  ijuostion.' 
Then,  in  Pel latt's  Ca.se,  L.  K.  2  <  li.  .v.>:. 
Lord  Cairns  says,  clearly  :  "  i  tliiiik  that 
where  an  individual  applies  for  >li:irtsi:i 
a  company,  there  In'iiig  no  oMi^jalioii  to 
let  him  have  any,  tlurc  must  hr  c  iys))iw^r 
by  the  company,  otherwise  fkrri-  is  nn  con- 
tract." tlunn's  Ca.s»',  L.  U.  :{  cii.  ji.  \-\ 
et  scq.  And  sec  Fletcher's  Cusi'  (licfnri' 
Wood,  V.  C,  Nov.  11,  181)7,  ntnl  m 
Gunn's  Case,  I,.  R.  3  Cli.  4:i ) ;  Slmciil'- 
ford's  Case,  L.  K.  1  Ch.  Ml  ;  Moziiv  r 
Tinkler,  1  C.  M.  &  U.  6!»2  ;  Hoiitl..lj;M-. 
Grant,  -I  IJing.  C.IS  ;  Kennedy  r.  I.e.'.  :i 
Mer.  441.  So,  in  Kobin.sons  Case,  4  Cli. 
332,  Lord  Justice  Selwyn  said  :  "  It  h 
clear,  whether  in  the  case  of  a  tnistci'  ur 
any  other  per.son,  that  tliere  must  W  tluit 
which  the  law  requires  in  onliT  to  cim- 
stitute  a  contract,  and  one  of  tin'  tliiiif'i 
now  determined  to  be  essential  to  tin' inn- 
stitution  of  a  contract  is  tli;it  tlu'  li'ttcr 
of  application  should  be  fdlinwi'i  by  an 
allotment  and  communication  of  tliut  illicit- 
ment.  The  form  of  the  i-ominiiiii  •ntinn  \* 
not  material  ;  but  it  litis  been  li'i  i'l'il  i" 
ca.ses  of  which  (Junn's  Ciisc,  I,.  I!.  '■)  'li 
40,  may  !«  taken  as  an  exainiili',  that 
tcnlfss  there  is  a  comminiicninin  i\f  tli' 
allotment  to  the  jierson  irho  h'ls  nt'idi'  Ik 
application  for  the  shares,  thnv  /«  no  (•««• 
eluded  contract,  and  he  dois  iu>t  lu-comt  ii 
shareholder.  That  rule  npplii  s  to  a  [lor- 
son  in  the  position  of  a  trustee  as  much  as 
to  anybody  else." 


fi;r^^ 


PART  v.] 


CORPORATIONS. 


867 


from  liability  to  take  the  shares  for  which  he  had  subsf^ribed  the 
mcinoranduin  of  association.' 

The  defendants,  metal  brokers,  having  previously  sold  ore  of  an 
American  mine  on  a  commission  of  two  and  a  half  per  cent,  ar- 
raii^'od  with  a  proprietor  to  assist  in  selling  the  mine  to  a  company 
to  bo  raised  by  him  in  Kiigland.  He  was  to  procure  the  appoint- 
inoiit  of  llie  defendants  as  metal  brokers  of  the  company,  at  the 
usual  rate  of  English  commission,  viz.,  one  per  cent.,  and  he  prom- 
ised that  the  defendants  should  be  liberally  remunerated,  to  the  ex- 
tent, at  least,  of  £5000  for  their  assistance,  and  to  be  comi)cnsatcd 
for  the  loss  of  the  higher  commission.  Thoy  were,  as  he  knew, 
acquainted  with  facts  detrimental  to  the  rcputaticm  of  the  mine, 
and  ho  promised  the  liberal  remuneration  to  ensure  their  silence 
respeoting  them.  The  defendants  assisted  him  in  his  endeavors 
to  sell  the  mine  to  a  company  to  bo  formed  for  the  purchase  of  it, 
hut  loft  him  to  fix  the  price,  get  up  the  company,  and  manage  all 
details  respecting  the  sale.  He  procured  the  formation  of  the 
plaintiff  company,  and  the  purchase  by  it  of  the  mine  for  j£100,000, 
liulf  to  1)0  paid  in  cash,  and  half  in  paid-up  shares.  The  defend- 
ants were  appointed  metal  brokers  of  the  company,  at  the  one 
per  eont  commission,  allowed  themsolves  to  be  named  in  the  pro- 
spectus as  being  ready  to  answer  any  inquiries  relating  to  the 
mine,  and  answered  such  inquiries,  but  kept  silence  with  respect 
to  the  detrimental  facts  known  to  them.  Payment  having  been 
made  for  the  mine  to  the  proprietor,  2o0  fully  paid-up  shares  out 
of  those  recovered  from  the  company  were  transferred  by  him  to 
the  defendants,  and  were  subsequently  sold,  and  the  proceeds  re- 
ceived bv  them.     This  transaction  was  not  disclosed  to  the  com- 


'  In  re  Itoliiiison  k  Preston's  Brewery 
Company,  Si.lnfy'sl'iisc,  L.  15. ,  13  Ivp  228. 
Tlic  luitliiiritif.s  are  rlcar  that  a  imrty,  by 
sigiiiii};  the  iiu>innraii(liiin  of  a.ssociation 
of  a  cuniiiaiiy,  contracts  to  take  tho 
iuiiiiIkt  of  s'lures  for  wiiicli  lie  siiliscrilHss. 
In  liiiU's  Case,  L.  K.  f.  Cli.  "07,  it  was 
lu'lil,  tliat  where  a  man  had  si<,'ni'(l  a 
nii'inoraiiiluni  for  500  shares,  he  was  liable 
for  the  whole  .lOO  siiares,  thcinKh  he  had 
ai'ttiailv  been  allotted  oldv  250  shares. 
It  wa^  Ii.M  in  Kvans'  Case,  L.  U.  2  Ch. 
i'l',  that  a  snbscrilH'r  to  the  nieniorandnni 
of  assiiiiation,  being  a  direi'tor,  having 
eiitiMi'd  into  a  contract  to  take  a  certain 
miniU'r  of  shares,  is  Ixnind  to  see,  in  his 
iliarailir  of  director,  that  that  contract  is 
carricil  into  ell'ect  as  regards  himself  and 
the  sliaii'li.ilders.  Hut  in  Snell's  Case, 
h.  R.  T)  ('h.  22,  there  was  jiower  in  the 
dwil  fur  the  directors  to  accept  the  sur- 
ri'iiiicM  of  shares,  and  Snell,  after  sub- 
Scribing  the  memorandum  of  association, 


resigned  his  office  of  director,  ami  sur- 
rendered his  shares,  which  thi'  directors 
accepted,  and  it  was  held  tliat  the  sur- 
render was  good.  See  I  lot  ton  v.  Scar- 
iKirough,  &c.  Co.,  i:$  W.  It.  tjiil,  105'J.  .See 
as  to  hability,  notwitlistanding  lapse  of 
time,  Levick's  Case,  40  L.  ,1.  Ch.  130  ; 
Kvans'  Case,  L.  R.  2  Ch.  427;  Touth's 
Case,  before  (iitl'anl,  I..  J.,  cited  in  Sicl- 
ney's  Case,  L.  K.  i;{  K.i.  230. 

When  a  party  becotiKs  a  member  of  a 
company,  induced  to  do  so  by  niisre|ire- 
sentation  of  the  promoters  of  the  forma- 
tion of  the  company,  and,  after  lieconiing 
aware  of  the  groiinil.sof  misrepresentation, 
acts  as  a  shareholder  ami  allirms  his 
contract  as  owner  of  shares,  he  cannot 
threafter,  on  the  affairs  of  the  company 
becoming  disastrou.s,  obtain  a  rescission 
of  the  contract  on  the  grouml  of  fraudu- 
lent misrepresentation.  Petrie  v.  (iuclph 
Lum1>er  Co.,  U  S.  C.  of    an.  U.  460. 


■  it- 


^? 


'•■ 


'  I 


: 


i|i 


I 

hi 


I! 


,[• 


ii! 
ill 

f 


1 


\ 


': 


II 


;s,i 


1* 


i':i 


868 


COMMENTARIES  ON  BALEfl. 


[book  II. 


pany.  In  an  action  to  recover  the  proceeds  as  secret  profits  made 
by  promoters,  the  judge  left  the  (juestion  of  promotcrship  without 
any  definition  to  the  jury,  who  found  tliat  the  defendants  weio 
promoters,  and  gave  a  verdict  for  tlic  plaintiff.  Held,  that  tlutc 
was  ample  evidence  for  the  jury,  and  the  learned  judge  was  not 
bound  to  give  them  a  definition  of  the  term  "  promoter  ; "  tliat  it 
has  no  very  definite  meaning,  but  involves  the  idea  of  exertion  fur 
the  purpose  of  floating  a  company,  and  also  the  idea  of  some  duty 
towards  the  company  imposed  by,  or  arising  from  the  position 
which  the  so-called  promoter  assumes  towards  it ;  and  that  tiio 
defendants  were  in  a  fiduciary  relation  to  the  company,  and  tlieio- 
fore  liable  to  refund  the  secret  prolits,  even  although  the  contract 
ot  sale  was  not  rescinded.* 

It  was  the  duty  of  the  secretary  of  a  company  to  procure  the 
execution  of  certificates  of  shares  in  the  company  with  all  requisite 
and  prescribed  formalities,  and  to  issue  them  to  the  persons  entitled 
to  receive  the  same,  liy  a  resolution  of  the  directors  of  the  com- 
pany, it  was  provided  that  certificates  of  shares  should  be  siirncd 
by  one  director,  the  secretary,  and  the  accountant.  The  secrctaiv 
of  the  company,  having  executed  a  deed  purporting  to  transfer  cer- 
tain shares  in  the  company  to  one  G.,  a  purchaser  of  such  siiaros, 
issued  to  G.  a  certificate  stating  that  he  had  been  registered  astlie 
owner  of  the  shares.  Such  certificate  was  in  the  usual  and  author- 
ized form  and  sealed  with  the  company's  seal ;  but  the  signature 
of  the  director  appended  thereto  was  a  forgery,  and  the  seal  <»f  the 
company  was,  in  fact,  affixed  thereto  without  the  authority  of  the 
directors.  G.  deposited  the  certificate  with  the  plaintiff  as  a  se- 
curity for  advances  ;  and  subsequently  executed  a  transfer  of  tlie 
shares  to  the  plaintiff.  Neither  G.  nor  the  plaintiff  had  any 
knowledge  or  reason  to  suspect  that  the  certificate  was  otherwise 
than  a  genuine  document,  or  that  the  matters  stated  therein  were 
untrue.  The  company  refused  to  register  the  plaintiff  as  owner 
of  the  shares,  stating  that  there  were  no  such  shares  standiiii:  in 
G.'s  name  in  their  books.  On  a  special  case  to  the  Queen's  Hench 
Division,  it  was  held  that  the  company  were  estop|)ed  by  the  cer- 
tificate issued  by  their  secretary  from  disputing  the  plaintilT's  title 
to  the  shares.^ 

The  ground  of  the  decision  is  that  the  company  was  responsiide 
for  the  fraud  committed  by  its  agent  while  acting  within  the  or- 


1  Tho  Emma  Silver  Mining  Co.  v. 
Lewis,  4  C.  1'.  D.  396.  See  Hagnall  v. 
Carlton,  6  Ch.  Div.  371 ;  Emma  Silver 
Mining  Co.  v.  Grant,  U  Ch.  Div.  918; 
Troyncross  v.  Grant,  2  C.  P.  Pi  v.  469  ;  In 
re  Barry  Ry.  Co.,  4  Ch.  Div.  315  ;  Upton 


V.  Grecnleos,  2.'>  L.  J.  C  P.  5)  :  VAinvr 
V.  Now  Sombrero  Piiosiihiite  (.'o.,  3  .\!'l'' 
Cas.  1218,  1'2:?6. 

2  Shnwr.  Port  Philip  Gold  Mining  Co., 
13  Q.  B.  Div,  103. 


PART  v.] 


COBrORATIONS. 


869 


diiiary  scope  of  his  employment,'  and  that  there  was  no  difference 
us  to  .such  responsibility  between  a  fraud  carried  out  by  means  of 
forjroiy  and  any  other  fraud. 

IMuiutilT,  the  owner  of  railway  shares  in  two  companies,  took 
certilicutes  from  tl»c  companies,  for  wiiieh  he  gave  receipts,  lu 
.so  (loiiijr,  he  gave  his  address,  in  one  instance,  at  the  ollice  of  a 
liaiikiiiii  company  ;  in  tlie  otlier,  at  u  club.  He  deposited  the  cer- 
tiliciiti's  witli  the  manager  of  tiie  baulv  for  safe  custody.  Tlie  man- 
aL'ci-  Iraudulently  sold  ti.  '  shares,  and  forjred  the  name  of  tho 
plaint  ill  to  transfer  deeds  of  the  shares.  The  companies  wrote  to 
tiie  |ilaiiitill',  informin*^  him  of  the  transfers  ;  and  receiving  in  one 
iiistaiR'c  no  answer,  and  in  the  other  an  answer  purporting  to 
ooiiii'  Intni  the  jdaintiiT,  i)ut,  in  reality,  forged  by  the  manager,  rcg- 
istiivd  tiie  sliares.  On  bill  (iled  against  one  of  the  companies  and 
tiic  purcliaser,  |)raying  that  the  purchaser  miglit  be  decreed  to  de- 
liver up  tlie  certificate  to  the  plaintilT ;  that  the  comjirny  might 
be  dcciccd  to  cancel  the  alleged  transfer,  and  the  entry  of  it  in 
their  hooks  ;  to  deliver  to  the  plaintirt"  a  stock  certificate,  and  to 
pay  the  dividend  then  due,  and  all  future  dividends,  —  it  was  held 
tliat  the  plaintiff  was  entitled  to  the  relief  prayed,  but  without 
ppfjiKlice  to  any  question  at  law  or  in  equity  between  the  co- 
(lolViidaMts.^ 

M.  airrced  to  take  shares  in  a  company  incorporated  by  an  Act 
of  Parliament,  providing  that  the  con)pany  should  not  issue  any 
sliaro.  nor  should  any  share  vest  in  the  j)ers(m  accepting  the  same, 
unliss  and  until  a  sum  not  less  than  one-fifth  of  the  amount  of 
such  share  had  been  paid  in  resi>ect  thereof.  M.  transferred  his 
shares  without  paying  one-fifth  of  the  amount  thereof ;  the  trans- 
fer was  duly  registered,  and  Jl.'s  name  was  removed  from  the  re- 
sistor of  shareholders.  More  than  a  year  afterwards,  the  company 
commenced  to  be  wound  up.     Held,  that  M.'s  original  agreement 


'  t 


. 


'  III  ?v  Riiliiafc  Sun  Franrisro  Hv.  Co., 
L  U.  :!  (.».  H.  r)84  ;  P.unvi.k  v.  Kiis^lisli 
■li>iiii  St(.,k  liaiik,  L.  It.  2  Kx.  -ly.i ;  Swilt 
I-.  Wimiilidltoiii,  L.  1!.  8  Q.  I'..  '244; 
Swire  c.  I'iMiicis,  L.  K.  3  .App.  ('as.  Idii. 

*  .Idhiistiiii  I).  Kt'iitoii,  Joliiistoii  V. 
Parsiv,  I,.  U.  9  Kij.  181.  Cottnin  »•. 
Kiistmi  Coiiiiti.'s  Hy.  Co.,  1  .1.  &  11. 
2lS,  was  a  casfl  siniihir  to  tlii'so.  Tlicrt! 
a  fit'gid  iiistriiini'iit,  to<;cthi'r  with  tho 
powssidii  dl'  liilc-doctls,  was  presented  to 
till'  cDiiiiiaiiy  ;  the  company  acted  upon 
that ;  tlie  person  who  claimed  under  tho 
t'ir<;p(l  iiistiiiiiu'nt  was  made  a  defendant ; 
theeiiiii|iaiiy  Was  also  made  n  th'fendant ; 
anil  the  ijeereo  in  the  case  wa.s  to  restore 
the  delieiiiures  to  the  plaintiff  whose  name 
VOL.  I.  24 


had  been  forj;ed.  In  all  of  these  cases, 
however,  it  wa.s  held  thai  the  ne<;lifjenea 
or  mistaken  eontideine  of  the  plaintiffs 
disentitled  tlieni  to  costs  ai,'ainst  litlierdu- 
fenilant.  See  further,  on  the  niain  jioint 
involved,  Ilililvanl  r.  South  Sea  Co.,  2  P. 
Wms.  7<>;  Ashi)y  v.  Hlarkwell,  .\nii..  .503; 
Hare  r.  London  &  N.  W.  Uy.  Co.,  Johns. 
722  ;  Tayler  v.  (ireat  Indian  liv.  Co.,  7 
W.  15.  182;  SlDUian  f.  Hank  of  Knfjland, 
14  Sim.  475;  l>.ivis  v.  I?iink  of  Knf,dand, 
2  Binj».  3!t:! ;  B.ink  of  Ii-eland  v.  Kvans' 
Trusts,  8  W.  H.  4(11  ;  .I  II.  L.  Cas.  389, 
413  ;  Tavlor  v.  Midland  Hv.  Co.,  8  W.  K. 
401  ;  C.irter  v.  Carter,  3  Kay  &  .1.  617; 
Cottani  I'.  Eastern  Counties  liv.  Co.,  1  J. 
&  H.  213. 


!   I 


870 


COMMENTARIES  ON  SALES. 


[book  II, 


to  take  shares  was  discharged  by  the  transfer,  which  operated  as 
A  new  contract  biitwccn  the  company,  M.,  and  the  transferee' 

Where  A.  signed  an  application  for  shares  in  a  company,  upon 
condition  that  lie  siiould  be  ap|)ointcd  secretary,  and  his  acceptance 
of  the  oftiee  was  to  be  subject  to  further  in(piiries,  which  he  had 
cauHod  to  be  made  respecting  the  position  of  the  company  ;  the 
shares  were  allotted  the  next  day,  but  A.,  in  consequence  of  infor- 
mation he  received,  declined  the  appointment,  and  required  that  the 
allotment  should  be  cancelled  ;  the  court  held,  that  his  namo  mua 
be  removed  from  the  register  of  shareholders.* 

A  shareholder  in  a  limited  company,  A.,  which  was  being  amal 
gamatcd  with  an  unlimited  company,  H.,  received  a  printed  foT 
of  applicatiim  for  shares  in  li.  company,  which  he  filled  up  with 
an  application  for  ten  shares,  inserting  in  writing  after  the  word 
♦'  company,"  the  words,  "  if  limited."  The  answer  ho  received  in 
May,  1869,  was  that  the  directors  of  B.  Company  had  coiisidoml 
his  application,  and  had  allotted  him  ten  shares  "  in  pursuance 
thereof,"  and  had  entered  his  name  in  the  register.  On  June  1. 
1869,  he  wrote :  "  Send  me  certificate  for  my  ten  shures  in  ex- 
change for  this  allotment  letter."  Tho  certificates  were  sent 
Nothing  more  was  done  until  Nov.  6, 1869,  when  the  company  was 
ordered  to  be  wound  up.  In  the  form  of  application  for  shares. 
and  in  the  allotment  letter,  the  A.  Company  was  always  propeih 
described  as  "  limited,"  and  the  B.  Company  was  properly  de- 
scribed without  that  word.  The  applicant,  upon  being  settled  on 
the  list  of  contributories,  sought  to  be  relieved,  on  the  grouiul  that 
what  he  had  contracted  for  were  shares  in  a  limited  company; 
held,  that  the  absence  of  the  word  "  limited  "  was  sufTicient  notice 
to  the  applicant  (especially  to  a  shareholder  ih  a  limited  com- 
pany), that  the  company,  for  shares  in  which  he  was  applyinir, 
was  unlimited;  and  that  the  insertion  by  him  of  the  words  "if 
limited  "  into  the  form  of  application,  was  not  eFectual  in  impos- 
ing a  condition  upon  the  contract ;  and  held,  further,  that  he  had 
lost  any  right  to  relief  against  the  company  which  he  might  other- 
wise have  had  by  delay  and  acquiescence.^ 


*  In  re.  Towns'  Drainage  and  Sewage 
Utilization  Co.,  L.  H.  IG  K(i.  104.  The 
agreement  to  take  shari-s  rested  in  fieri, 
and  was  (;«pal)le  of  Iwing  discharged  by  a 
freah  agn-einent,  as  was  decided  in  Ex 
parte  Beresford,  2  .Mac.  &  G.  197. 

2  In  re  National  Kiiuitable  Provident 
Society,  L.  K.  15  K(i.  236. 

•  /»  re  United  Ports  Insurance  Co., 
Perrett's  Case,  L.  R.  15  Eq.  250.  Though 
under  Lawrence's  Case,  L.  R.  2  Ch.  412, 
421 :  Kincaid's  Case,  lb.  420,  426  ;  Peel's 
Case,  R.  674,  684  ;  Heymann  v.  European 


Central  Ry.  Co.,  L.  R.  7  E^].  IT)),  an^l 
Taite's  Case,  L.  R.  3  E.[.  705,  it  wm  m- 
dent  that  Perrett  was  condinliii  I'.v  lii' 
delay  and  acquiescence ;  the  v.im'  iiwiiily 
turned  on  the  fact  that  the  giiicml  la* 
requires  that  a  limited  company  sliiiil  nm 
exist  unless  the  word  '*  limitcil  "  is  an- 
nexed to  the  namo  of  the  coMiiniiiy,  ami  if 
that  word  is  not  so  annexed  the  loiiipiny 
is  prohibited  from  having  any  liiwfiil  ex- 
istence as  a  limited  company.  !^t>.  i"  •'" 
form  of  application  for  snares,  luid  in  the 
allotment  letter,  he  had  suflicieiit  notice 


[book  II. 

pcratcd  as 
force.* 
pany,  upon 
acceptance 
ch  he  hail 
ipanv  ;  the 
CO  of  infor- 
■0(1  tliat  the 
name  must 

)cing  amal 
inted  fo"i". 
0(1  up  with 
r  the  WDrd 
received  in 

considered 

niu'suaiicc 
)n  June  1. 
lires  in  c.\- 

wore  sent. 
)inpany  was 

for  shares. 

k's  properly 

iroperly  de- 

f  settled  on 

rround  that 

company; 

Mit  notice 

mited  eom- 

a|»plyin|r, 

words  "if 

in  inipos- 

lat  he  had 

lij^ht  other- 


El].  V>\,  nn'l 
)5,  it  w;w  fvi- 
llllilfii  I'V  Ill's 
e  ciisi'  Miiiiiily 
ircni'nil  lii* 
imiiv  sliiill  nut 
iiiiti'il"  is  an- 
imimiiy,  ami  if 
1  tin"  i''OMi|wny 
nny  iawful  ex- 
y.  So,  in  the 
cs,  II  ml  in  the 
.fticicnt  notice 


PAUT  v.] 


CORPORATIONS. 


871 


31( 


C.  applied  for  and  was  allotted  Hharcs  In  a  hanking  company; 
paid  the  first  instalment  in  tho  usual  way,  and  received  provis- 
ional certificates,  which,  on  payment  (if  the  second  instalment, 
iuid  in  executing  the  degd  hy  a  given  day,  were  to  be  exchanged  for 
siiaies;  hut  in  default  of  payment  the  rights  and  privileges  appur- 
tenant to  the  certificate  W(;re  to  he  forfeited.  lie  failed  to  pay  the 
second  instalment  and  to  exchange  his  certificates.  The  company 
passed  into  liquidation.  It  was  held,  tiiat  he  was  under  no  obliga- 
tion to  take  shares;  that  his  interest  was  forfeited,  and  that  he  was, 
therefore,  not  liable  to  l)o  phicod  on  the  list  of  contriltutorios.' 

On  May  U,  tho  [tlaintifT,  through  his  brokers,  sold  200  shares  in 
0.  eonipany  to  the  defendants,  who  were  8tock-jobl)ers,  the  settling 
day  being  May  15.  On  tho  lOtli  tho  company  stopped  payment, 
and  the  |)ctition  for  winding  up  was  presented  on  May  11.  The 
piuehase-moncy  was  paid  by  tho  defendants  on  the  15th,  and  the 
certificates  of  tho  shares  wore  tlien  delivered  i>y  tho  piaintift',  and 
transfers  were  executed  by  him  to  seventeen  persons  as  nominees 
of  the  defendants.  Tho  transfers  could  not  bo  registered  in  con- 
sofpienee  of  tho  winding  up  of  tho  company.  It  was  held  by 
Malins,  V.  C,  upon  bill  for  specific  performance,  that  tho  defend- 
ants were  bound  to  fulfil  the  contract;  to  reftay  tho  amount  of 
calls  paid  by  the  plaintiff,  and  to  iiulemnify  him  against  future 
calls.^  In  so  holding,  Malins,  V.  C,  cx|u'esscd  his  satisfaction 
with  knowing  that  tho  defendants  could  recover  over  against  the 
seventeen  princi|tals  to  whom  they  had  resold  tho  shares.  Ihit  on 
appeal,  it  was  hold,  reversing  tho  decree  of  Malins,  V.  C,  that  the 
contraet  between  the  plaintiff  and  tho  jobbers  must  bo  inter- 
preted according  to  tho  rules  of  the  Stock  Exchange,  and  that 
after  the  jobbers  had  paid  to  tho  vendor  his  purchase-money,  and 
[riven  the  names  of  the  transferees  to  whom  t..e  vendor  executed 
transfers,  and  after  these  transferees,  through  their  brokers,  had 
received  the  transfers  and  paid  their  purchase-money  to  the  jobbers, 
the  lial)ility  of  the  jobbers  cea.sed.^ 

The  plaintiff,  a  holder  of  40  shares  in  a  public  company,  sold 
that  number  on  tho  Stock  Exchange,  through  his  broker,  to  a 


tliat  the  romjiiiny  was  not  a  liniifeil  com- 
iMiiv.  iVm-tt'.s  I'Hsp,  L.  li.  1.')  Ki|.  '.i.')4. 
'  III  n:  ,\siatic  Banking;  ('oriioratioii, 
Er  iiin-lc  C.illmii,  L.  K.  '.«  K-i-  2:{ti. 
Till'  rii,'lits  a(-i|iiii-L>il  by  tht'  allDttccs  are 
ii'it  iiliMiliitc,  but  are  rijjlit.s  which,  nc- 
foriliiij;  to  tlic  authorities,  ilo  not  cnipo.vtT 
the  ilirei'toi-s  to  compel  the  holiiers  of  these 

\m\Ui il  certificates  to  clothe  themselves 

Willi  the  I'haracter  of  sharehoKlers.  Kns- 
tme  v.  Diil.lin  Trunk  Ry.  Co.,  L.  R.  6  K.]. 
I*''.',  and  Ortnerod's  Case,  L.  U.  6  Va\.  110, 
are  cases  in  [mint.     And  by  non-payment 


of  tlip  second  instalment  the  certificates 
and  the  ri;;lit  to  shares  were  forfeiteil,  and 
after  that  tiie  allottee  could  not  claim  to 
be  a  shareholder  or  be  liable  to  be  placed 
on  tiie  list  of  coiitributorins.  Ex  parte 
Beresford,  2  M.ic.  &  (J.  ll>7. 

■•«  Coles  V.  BristowK,  L.  It.  6  E<i.  149. 

•  Coles  c.  Bristowp,  L.  R.  4  Ch.  3.  See 
Shaw  V.  Fisl  er,  5  De  G.  M.  &  O.  596  ; 
Shepnard  v.  Murphy,  1«  W.  R.  948 ; 
Shepherd  v.  Oillespie,  L.  R.  5  Eq.  293  ; 
I..  R.  3  Ch.  764  ;  Evans  v.  Wood,  L  R. 
5  Eq.  9. 


It! 


1 


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1^ 


1^ 
il 


llliil 


11 

I? 
t 


1 .  t 


< 


n 


I 


?J2 


COMMENTARIES  ON   SALES. 


[book  II. 


jobber,  for  .£202  lOs  The  defendant  subsequently  bought  on  the 
Stock  Exci;ange,  through  a  broker,  100  shares,  and,  in  accordance 
with  the  usage,  the  name  of  the  defendant  was  given  to  the  plain- 
tiff's broker  as  the  purchaser  of  his  40  shares.  The  plaintifl'  exe- 
cuted and  gave  to  his  brokers  a  deed  transferring  tlio  sliares  to 
the  defendant,  the  consideration  being  left  blank.  The  brokers 
filled  up  tlie  consideration  with  <£145,  which,  with  the  sums  paid 
by  the  defendant  for  the  other  60  shares,  made  up  the  price  he 
had  agreed  to  pay.  This  <£145  was  paid  by  the  defendant,  who 
thereupon  received  the  transfer  and  certificates  of  the  sliaros 
The  defendant  njver  executed  tlie  transfer,  but  he  kept  it  ami  the 
certificates  in  his  possession  and  never  repudiated  the  transuction, 
An  order  was  made  for  winding  up  the  company,  and  the  i)liiintil! 
was  compelled  to  pay  two  calls.  It  was  hold,'  afiirming  the  jiidir- 
mcnt  of  Lord  llomilly,  M.  R.,  that  tliore  was  a  contract  between 
the  plaintiiT  and  the  defendant  entitling  the  plaintiff  to  indcm- 
nifcy  by  the  defondaut. 

This  case  followed  Coles  v.  Bristowe  ;-  the  principle  decided  in 
both  cases  being  tiiat  hi  each  case  the  contract  between  tlic  par- 
ties was  so  far  completed  that  it  could  have  been  enforced  In  the 
respective  purchaser.  If  facts  arose  in  the  case  which  would 
justify  him  in  doing  so,  the  contract  should  have  been  pn)ni|)tly 
repudiated,  otherwise  it  would  be  held  binding.  ]>ut  in  another 
case,'*  where  the  qu  ?stion  was  between  the  seller  of  shares  and 
the  jobber,  the  latter,  under  the  state  of  facts  there,  was  held  lia- 
bh  to  indemnify  the  estate  of  the  seller  for  calls  made  upon  him. 
In  this  case  a  firm  of  stock-jobbers  agreed  on  the  Stock  Exclianirc 
to  buy  100  shares  for  a  certain  day.  and  on  tlie  sale-note  were  the 
words  "  with  registration  guaranteed."  The  jobltcrs,  before  the 
day,  gave  the  name  of  a  transferee,  who  duly  paid  the  pnychase- 
money  ;  the  seller  executed  the  deed  of  transfer,  and  delivered  it 
to  the  transferee.  The  transferee  never  registered  the  traiisiVr.  and 
calls  were  made  upon  the  seller,  who  filed  a  bill  against  tin'  jol)- 
bers  for  I'ldemnity,  which  was  sustained.  In  this  case  tin  re  was 
a  special  co  itract  by  the  jobber,  which  he  had  not  |)erforni(Ml,  ami 
for  the  breach  of  which  he  was  liable.  The  other  cases  dillereil 
from  this  ir  that  respect,  and  the  question  here  was  between  the 
seller  and  joblter;  not  between  the  jobber  and  the  buyer  as  in 
some  of  t'lc  other  cases.* 

1  HawkiiiH  V.   Maltby   (second  cnsc).  '  Cruso   it.   Painr,   L.   R.  C  Iv].  ')<1: 

L.  K.  6    K(j.   TpO.';  ;    alliimod,   on   iii)peul,  afliniiml  on  appc-il,  I,,  k.  4  <'li.  A|i.  4il, 
1.   !l.  4  Ch.  Ap.  200.  «  Lord    IIhiIi.tI.'V  siiid  tli.it  Vol-,  r. 

»  L.    K.    4   Ch.   Ap.   3,   reversing  Uio  Rristowe,   L.   It.   4  t'li.  3,  nii.l    i'lim'  t'. 

judgment  of  Malins,  V.  C. ;   L.  li.  8  E:i.  Hutchinson,  I..  It.  3  Ch.  3S8,  lial  i^t^il" 

149.  lislicd  tlmt  in  the  cane  of  an  orJiimry  sale 


3  .'  !' 


PART  V.j 


CORPORATIONS. 


378 


A  pcrso.i  to  whom  shares  in  a  company  had  been  transferred 
while  he  was  an  infant,  became  adult  nearly  two  years  before  the 
company  commenced  to  be  wound  up,  and  during  tiiat  time  tooic 
no  stoi)S  to  repudiate  the  shares,  thou<;h  proceedings  had  been 
taken  to  enforce  calls,  was  held  to  be  a  contributory.' 

It  is  a  good  plea  to  an  action  against  a  shareholder  for  calls, 
tliiit  tlie  defendant  was  induced  to  become  a  shareholder  by  the 
framl  of  the  plaint' Ts;  that  he  had  never  recognized  since  Jioticc 
of  the  fraud  any  rigiits  or  liabilities  in  iiimself,  as  such  sharc- 
hokler,  nor  receiveU  any  benefit  from  his  shares  ;  and  that,  within 
a  reasdualjle  time  after  notice  of  the  fraud,  he  had  repudiated  the 
sharrs  and  given  notice  to  the  plaintiffs  of  his  repudiation.'^  The 
(hstiiietiou  is  taken  in  this  case,  as  in  many  o+i>'m-s,  between 
the  liability  of  subscribers  f  )r  stock  as  between  tin  mselves  and 
the  KinijKiny,  and  as  between  themselves  and  creditors  of  the 
company.  In  the  latter  case,  a  liability  has  been  held  to  attach 
in  luany  instances  where  the  reverse  would  be  held  as  between 
subscribers  and  the  company. 

4.  Saj.es  of  Stock  in  Incorpouatkd  Companies  in  the 

Umteh  States. 

It  was  held  by  the  United  States  Supreme  Court  in  Fourth 
National  l>ank  v.  Francklyn,''  where  stockholders  were  made 
liable  (or  the  debts  of  the  corporation,  that  the  remedy  given 
by  tlu!  statute  must  be  followed ;  and  tlat  where  the  remedies 
were  e(juliued  to  pro(!eedings  ia  equity,  or  to  an  action  upon 
a  jiKh^nient  against  the  corporation,  an  independent  action  at 
law  upon  the  original  liability  of  the  stockholder  could  not  be 
maintained. 

The  individual  ))     ''"ty  of  stoc'rholders  in  a  corporation  for  the 

'  /)(  ■/•(•  Niirwt'fiiaii  ('Imrcoiil   Imii  Co., 

MitclifU's  I'lisi',  I,,  li.  It  K.(.  ;}t;:j.     s«'o 

liUiiisdi'ii's  Citsc,  I..  H.  4  I'll.  Ul;  Duljjiii 
&  \Vi(klow  Uv.  Co.  V.  Bhuk,  8  Kx.  181. 
In  \Vil.son'.s  Case,  1,.  1!.  8  K.i.  i>10,  tlic 
inlaitl  dill   iiiit  attain    his  niajmity  nntil 

after  tin'  \viiiilin.i,'-ii|i  liad  coniimii I,  iind 

lii>  waH  liidil  niil  lialili'  as  a  rontriliutoiy. 

-  IJwlcli-n-riwni  Lead  Minin;,'  (^o.  v. 
HayiK-.s,  L.  H.  2  V.y.  :VJ4.  Tlit-  rnlin;,'  of 
Willt's,  t).,  II!  Claniuiji.in.sliirL-  Iron  K  Coul 
Co.  r.  Irvine.  4   I''.  &  F.   '.'47,   i.s  in   fitvor 


to  a  jdliliiT  till'  rcil  oontraet  was,  that  iit 
till' siitliiii!-(lay  he  would  either  take  the 
shiiii's  liiiiisi'll'  or  give  tlu!  inunes  "!'  onit  or 
liiHii'  tiiinsl'eree.s  who  wo\ild  pay  sor  th,' 
sli;ii'is,  and  to  whom  no  reasonalile  idijee- 
tiun  riHiid  hi'  taken,  in  the  rase  of  Cruse 
I'.  I'.aiR'  {siiiini),  liowever,  there  wa.'-: 
Mi|»riiiMiil  an  e.xpress  |irovision  that  tin! 
siilc  Hiis  not  inadi'  ordiinirily  and  .siniply, 
but  Willi  refiistratioli  j;narant(ed.  These 
wiirils  iiiiriiilui'i'd  ii  material  distinelinti, 
tliiiliivi  hviu^  not  merely  that  the  johlier 
i<limilil  TmiiI  a   puri'liaser  who  would   ]iay     (d'  s'leh  a  |> 


8e 


tie 


I" 


It.    He. 


tile  shares   and    aeeept    the    tranidVr,  liosil  I,ife  .\ssoe.  Co.  i'.  Ayseoii„di,  ti   K.  & 

but  tlial   the   johher  .should    tind   ii   juir  H.  701;   Mi('rei^'ht  v.  .Stevens.  I    II.  &  C. 

fiiiisiT  who    would    do    tliat,   and    wmild  4r)4,  show  in;,' the  necessity  ol  aviirin>{  not 

iil'o  r'^'i>ter  the  trauKler  ;   and  until  that  mlv  the  fraud,  hut  a  repndiation  of  the 

liul  liirn  done  the  jolilicr  was  not  di.s-  thares,  in  defeiiee  to  an  action  against  a 

iliiiii,'iil  iViini  his  eni^'aKemuut.     Cruse  v.  B.uireholder  for  rall.s. 


''■iiiie,  I,,  i;.  4  Ch.  443. 


*  120  U.  S.  747,  rOS. 


i 


1  ! 


II 


iiii 


i 

\ 

X 

♦ 

■ 

» 

'  ■? : 

Mi 

374 


COMMENTARIES  ON  SALES. 


[book  II. 


Hi  r 


■V 


payment  of  its  debts  is  always  a  creature  of  statute.  At  common 
law  it  does  not  exist.  The  statute  which  creates  such  liability 
may  also  declare  the  purposes  of  its  creation,  and  provide  for  the 
manner  of  its  enforcement.  The  liability  and  the  rcmcdv  beiiv 
created  by  the  same  statute,  the  remedy  provided  is  exclusive 
of  all  others.  A  "general  liability  created  by  statute,  without  a 
remedy,  may  be  enforced  by  an  appropriate  common-law  action. 
But  where  the  provision  for  the  liability  is  coupled  with  a  piovj. 
sion  for  a  special  remedy,  that  remedy,  and  that  alone,  must  be 
employed.^ 

In  Le  Sassier  v.  Kennedy,'^  the  question  involved  was  as  to  the 
remedy  of  the  vendors  of  bank  stock  aj^ainst  the  i)urchascr,  be 
cause  the  latter  had  failed  to  insert  his  own  name,  or  that  of  some 
other  responsible  person,  in  the  blank  which  had  been  left  liv  the 
sellers  in  the  transfer  they  signed  on  the  books  of  the  liaiik.  for 
the  stock  sold  to  the  defendant.  The  bank  havinfi^  failed,  the  le- 
ceiver  had  recovered  against  the  plaintifTs  for  their  individual  lia- 
bility under  sec.  .0161  of  the  Revised  Statutes.  The  court  held 
that  the  defendant's  liability  to  them,  if  there  was  any,  arose  out 
of  his  contract  vith  them  us  a  purchaser,  and  not  out  of  the 
banking  law,  thus  presenting  no  federal  (juestion.  There  is  noth- 
ing in  the  banking  law  which  makes  it  the  purchaser's  duty  to 
save  his  assignors  from  harm  by  reason  of  their  former  owner- 
ship, or  which  recjuires  him  to  register  his  ownership  for  tlioir 
protection. 

In  the  absence  of  a  statutory  provision,  unsecured  floating  (1(  htsi 
for  construction  are  not  a  lien  on  a  railroad  superior  to  the  lion  of 
a  valid  mortgage  didy  recorded,  and  of  l)onds  secured  thcpbv, 
and  held  by  bond  fide  jmrchaser  for  value.-^  The  judgnicnt  in 
this  case  was,  on  application  for  a  rehearing,  aflirnied.^  The 
court  held  that,  whatever  is  tl.e  rule  applicable  to  locoinotivis 
and  cars,  and  loose  property  susceptible  of  separate  ownership 
and  separate  liens,  and  to  real  estate  not  used  for  raihoail  pur- 
poses, as  to  their  being  unaffected  by  a  prior  mortgage  giver,  liy 
a  railroad  com{)any,  covering  after- acquired  property,  it  is  well 
settled,  in  the  decisions  of  the  court,  that  rails  and  other  aitichs 
which  become  allixed  to  and  a  part  of  a  railroad  covered  !»y;i 
prior  mortgage,  will  be  hehi,  hy  the  lien  of  such  mortgatn'  in 
favor  of  bond  fide  creditors,  as  against  any  contract  between  the 


I  Sen  Polliicil  V.  naili-y,  20  Wiiil.  520, 
B2fl;  Mills  v.  Sootf,  l>l»  II.  S.  2.'» ;  Tci rv  ». 
liitllc,  101  IT.  S. -21(5;  riitti'i-soM  w.  Lvnile, 
)0t(  IJ.  .S.  f,Ii);  FIiinIi  v.  Conn,  10!)  "U.  S. 
..,1;  Bliiir  v.  V,n\\  I04  U.  S.  7rt!»;  Chnso 
V.  Curtis,  1111  I'.'S.  452,  4»iO;  ShillinKtoii 
V.  lluwliinJ,  53  N.  Y.  371;  AtiHonia  liru.sii 


&  CoppiT  Co.,  53   \.  Y.   123;   HI  V  S. 
(i'jfi:  C'lmnittfilin  r.  Hiij^ctiot  Maimt.  I'o., 
lis  Misx.  .IS-J. 
■■«  123  V.  S.  521. 

•  I'ortiT  1'.  rittsliurcfh  Rt'sspiniT  SU'd 
Co.,  120  IT.  .S.  »!4t»,  t!71. 

*  Ibiil.,  122  L'.  S,  2(57,  283. 


f  J 


.!  ,1 


in  ^  I 


PART  V.J 


C0BP0RATI0N8. 


875 


furnisher  of  the  property  and  the  railroad  company  containing 
stipuliitions  such  as  that  the  furnishcrt*  was  to  retain  the  posses- 
sion of  and  title  in  them  until  payment  was  made  in  fnll.' 

A  purchaser  of  all  the  stock  in  an  incorporated  associatiim  as- 
siiriK'd  portions  of  the  stock  as  collateral  security  to  meet  his 
notes,  lie  subsecjuently  sold  the  mass  of  the  property  of  the  asso- 
ciation, which  consisted  of  real  estate,  t(}  the  plaiiitiff,  j^-ctting  the 
(jiroftors,  as  he  met  them,  to  execute  a  deed  of  the  property,  but 
whicli  deed  was  executed  without  proper  legal  formalities  or  au- 
thority. The  holders  of  the  assigned  stock  transferred  it  to  oth- 
ers, who  had  notice  of  the  plaintitrs  deed,  and  a  sul)se(pumt  deed 
was  executed  by  the  directors  to  tiiose  otheis.  The  court  held 
that  those  others  simply  took  the  rights  of  their  assignors,  and 
that,  although  the  plaintilFs  deed  was  not  K'gal,  he  was  the  e(iuit- 
al)li'  owner  of  the  property,  and  was  entitled  to  redeem  it  on  pay- 
iiiont  of  the  amount  of  the  notes  to  secure  the  payment  of  whicli 
the  stock  had  been  assigned.'^ 


1  Duiilmin  V.  I.'iiilway  f  o.,  1  Wall  254; 
(l.ilvr^tu,!  i{ailr.;Mil  r.  Cowdicy.  11  WmI!. 
4'il',  f*",  4H-.';  I'liitfil  Stitcs  i).  Now  Or- 
Uiu>  K.  it..  12  ^Viill.  ;}•)•->,  -Ml,;  Dillon  v. 
Bainml,  'Jl  Willi.  43(!.  -140  ;  Fos.lick  i: 
S.li;iii,  !i!»  I'.  S.  ii:J'.,  251.  It  (>  a  Wfll- 
M'ttii'il  |iriii  ipli'  that  i,iilisci|U('!it  cri'ililors 
r.ii.'iot  Ire  inard  to  iiii|)fai  li  an  i-xnutcil 
inn'  t  wlirn-  their  ili'alinf,'.s  with  tlu' 
Kiiii  ■  '■  which  tlicy  <'laini  the  lii'iiclit, 
iK'cii  :  .iT  tli<M'(,Mtract  lici'aini' an  I'Xc- 

outi'cl  1  (iMiiact.     (hahani  v.  Railroad  Co., 
111-.'  !'..•<.  148. 

-  \Iiiiin'a]H)lis  A.s.socintion  r.  CanficM, 
I'il  1'.  .S.  'iii'i.  This  case  was  iiri'V'ously 
IkIihi'  till'  ."^iii) villi'  Court  of  Sliniit-sota 
(«'.(«.  Ii;i|.lwiii  •.  Caiilirhl,  "J"!  Minn.  4;i), 
wliiMi'  tile  i|H(".iion  a.s  to  tin-  hj^'ality  of 
till'  i'n^t  liii'cl,  cv.'i'iitt'ci  .si'paratclv  l>y  the 
liiiirtors,  '.las  (loti'rniini'il.  15y  thf  ar- 
I'lli's  (il  iiirorjioiatioM,  thr  niana;,'('in('iit 
III  Its  all'airs  was  vi'sti'il  in  tin;  Uiaril  of 
iliiviliirs.  Thi'  court  hi'hi,  that  the  1c<,m1 
I'tl'ict  (if  this  was  to  invest  the  ilirectois 
Willi  Miih  (iiiverninent  and  inana^i'iiii'nt 
OH  a  Ik  ii-d,  and  not  olln'iwi.sc.  This  is  in 
itcciiidancc  with  the  fjencril  rule  that  tin 
({iivcriiiii;;  iKiily  of  a  cor|Hiraticin,  as  sucli, 
ail'  uiidits  of  (lie  cor|ioration  only  as  a 
Iki;iii|,  and  not  individually.  Hence  it 
tiilliiws  that  they  have  no  authority  to 
;iit  Kave  when  assemliled  at  a  lioard  rneel- 
iiitf.  T!ie  se|iaratc  action,  iniiividually, 
III  the  |ieisons  coni|iosin},'  .such  >;(pvi mini,' 
l«iilv  is  not  the  action  of  the  constituted 
luiily  of  men  oloth.d  with  cor]H)raie 
|H)\vcTs.  In  re  Marseilles  K.xlen.sioii  i!y. 
Co.,7t'h.  Ap.  Itil;  It'Arcv  v.  Taiiiar.  &c. 
Ry.  Co.,  I,.  It.  2  Kx.  \M  ;  Inhuniin  r. 
Si'ymuur,  24  N.  J.  E<j.  143;  First  Nat. 


Bank  i'.  Christopher,  40  N.  J.  L.  4.35  ; 
.lunction  Ify.  Co.  v.  Ileeve,  15  Ind.  237; 
Caniniever  f.  I'nitcd  (ierinan  Churchfa, 
2  .SaiiilV.  Ch.  18o;  Yellow  Jacket  Silver 
Miniu}r  C^o.  r.  Stevenson,  C  Nev.  51  ; 
istoystuii,  &c.  Iload  Co.  r.  Craner,  45 
I'a.  St.  ;?8tj  ;  Kdf^erley  i'.  Kinerson,  23 
N.  II.  .'(.*i5.  But  where  an  a^eiit  of  a  eor- 
poiatioii  has  jiower  to  iuaiiaf{e  its  allaira, 
authoiity  to  do  all  acts  necessary  to  this 
jiurpose  in  the  ordinary  coiir.se  of  hnsinctui 
IS  iin|ilied,  and  will  he  presnined  to  this 
extent  till  the  contrary  appears.  Hroower 
r.  Ilailieck,  1  Diier,  114;  .\iiKMsta  Bank 
V.  Ilainhlet,  ;{5  Me.  4iM  ;  Bank  of  V'er- 
^rennes  i'.  Warren,  7  IliU,  '■'!;  (  onover  ». 
.Mutual  Ins.  Co.,  .'{  Keiiio,  255;  Bateau. 
Keith  Iron  C<i.,  7  Met.  2-'4  ;  Beers  v. 
I'lioiiix  (ila.ssCo.,  14  Bail).  MS.  In  the 
ISank  of  .Midillehiiiy  c.  liutland  k  WaHh- 
inf,'ioii  i{.  \{.  Co.,  ;jii  Vt.  15'.t,  the  court 
held  (liedtield.  C.  .1.,  delivering,' the  judg- 
ineiit)  tliJit  diitctiirs,  in  the  ahsence  of 
re>.trictioiis  in  the  charter  or  hy-laws, 
have  all  the  authority  'if  the  corporation 
itself  ill  the  conduct  of  its  ordinary  biisi- 
IIC-.S  :  addin;{,  "And  it  is  not  important 
that  this  aiitliority  b<'  eoiileried  at  un  na- 
.senilily  of  the  directors,  unless  that  is  tho 
usual  mode  of  tlii'ir  doiii},'  such  acts.  If 
they  ailopt  the  piaciice  of  ^ivin^j  a  sepa- 
rate absent  to  the  execution  of  contracts 
liy  their  a^jeiits,  it  is  of  the  .same  force  ns 
if  done  at  a  regular  nieetiuu  of  tl.e  lioai'd. 
If  this  were  not  so  it  would  le.id  to  Very 
>;re,»t  injustice  ;  for  it  is  notorious  that 
the  tran.saction  of  the  ordinary  lni.siiiess  of 
railway.s,  hanks,  and  similar  corp<iraf ions 
in  this  country,  is  without  any  formal 
meetings  or  notes  of  the  bourd.    The  caww 


!■ 


!'  ' 


h 


'A 


I  I 


t.    i 


lli 

'I 


In 


i\ 


f  i  ! 


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If 


'HI 


\  t 

H 


'I 


If 

If 


376 


COMMENTARIES   ON   SALES. 


[book  II. 


r  ?■!*' 


By  sec.  5,  139  of  the   Revised   Statutes,  those   persons  only 
have  ihe  rights  und  liabilities  of  stuckhulders,  whu  uppeur  to  w 


are  imincroiis  wIuti'  llio  consent  of  a  inii- 
iority  ol  tin-  tliii'i'tors,  jjivcn  »t'|>uriitclj', 
ha.s  Ihh'Ii  liclil  hinilin;;  U|i>in  tliu  i'uni|iaiiy. 


Anil  if  it  Were  not  mi  lu'lil,  it 


il.l 


able  till-  n\iijoiity  of  tin;  Imsini'ss  corporu- 
tioiis  of  till!  country  to  I'scapc  from  many 
contractii  whicli  rc(|uirt!  tlic  action  ol  tlio 
<lircctor.s  for  their  execution,  whenever 
they  chooso  to  tlo  so.  'I'jiis  is,  no  far  an 
I   know,  a  universal  rule  in  re;.;arii  to  th< 


action  of  uoriiorations  within  the  hco 


their 


liiirter  jiowers. 


:.f 


Aiiil  in  numerous 


well-coii>iil  •reil    cases    in     this 


I'ountry, 


wlieri)  till'  iia'/iiiriziil  ((ijciils  1/  the  roiH' 
pan;)  [the  italics  art)  ours,  Ai'rii.J  have 
exteniletl  its  liusiness  lieyctiiil  the  strict 
limits  of  those  functions  lor  witicli  the 
charter  wis  j^ranted,  tin'  ccuuiiauy  lias 
been  hehl  liuunil  l>y  iIk'  cxliniiun  unl(^^« 
thd  corjioralors  interfereil  to  restriiii  sucji 


extension   ;it  tin 


•  iiiest    Mioniint, 


I'll 


mill  was  s'liiciiiiui'il  l)s  ihiseourt  inNoves 
V.  Uutlauil  &  IliirliiiKl'Ui  \ly.,  27  Vi.  11<). 


Tl 


lere  IS  now, 


1 


aopn'Men 


1,  " 


10  ^roum 


1  t.i 


question  that  a  .'oi{Mir:iii<iu  is  tiouinl  l>y 
tilt'  arljoii  of  a  niaj.irily  of  ilie  luanl  of 
•iircetori,  e\|uesse(l  in  tho  Usual  mode 
whi.h   tiiey  adopt   in  tin"  transaction   i>f 


th 


e    hiiNllir^s  I 


d'  the   lioanl. 


tml 


Hor  thb  jiosiiion  noaiithority  ih  ei 
Nov'M  c.  It  iiliii>l,  Ate.  Uv.  (w'/'/'f),  ill 
whii  h,  ttNo,  It.'dlield,  ('.  ,i.,  delivers  tho 
judi;in.  lit,  iieiiiu'  slliljilv  to  the  elfi'ct  that 
a  c.>m|iaiiy  is  lioiiud  hy  the  acts  (within 
the  s:-o|ie  id  their  auliioiity,  of  cnurM')  of 
"  tilt)  aut!iuii/ed  a;.;ciil:t  (d'  tin'  eiiin|i my." 
A  cm  jionili'in   usually  ads  hy  its  author- 


U{.  Ills,       Not    int'rei|ileully  the    jiresi.       hody,  they  must  111. 'el   in  smiie  |i|ai 


iziil 

tl'.'iit    nets   in  miiiiairei,   and,  theref 

till)  atrent  ol'  tic  roiujiuny.      In  so  lar  as 


allirnied.)  In  I)"Arcy  r.  The  Taiii.ir,  &c. 
Ify.  Co.  L.  1{.  2  Kx".  Ia8,  tho  jaonilH-,! 
iiuorum  of  (lireckors  in  the  deriiid.n.i'^ 
ciiinpany  heiiig  three,  the  secreiai y  ;iilix,.ii 
the  seal  of  the  coiiiimny  to  u  iMind,  ;ii(.,r 
having;  ulitaineil  the  written  autliouiv  i>! 
two  directors  at  a  iiiivati-  iiilerviiw,  iii:,| 
at  anotlur  {irivate  interview  the  \.'|>m1 
lu'oinise  of  a  third  to  si<{n  the  amliuii'.v. 
I'he  coni|iany  liciiiji{  sued  i.i|iiin  tlii>  ii.Jiii, 
it  wjs  held  thai  ihe  seal  of  Ihe  ediiiji.iny 
was  allixed  without  lawful  autiioiiiy.  anil 
that  the  coliipaiiy  was  tlicreliHe  liul  lublr 
on  the  lioiid.  Karon  .Martin  says  :  •'hi,* 
not  m  ressary  that  tin  re  slioulil  I'c  any 
lixed  jilace  of  liiectinjj,  liiil  it  is  c|iii|.' ,  icar 
thai  the  directors  iie  to  act  toni  tiei.  .iiid 
in  a  iiieciiuK'  '  And  liiamiveil,  li.  :  ••|tis 
llcre  shown  alliiinalivcly  lliat  the  .-.cd  hjj 
not  |irii|ieily  atlixed  ;  lor  this  couid  net  In; 
done,  exce|i'  liy  the  alilliniily  <i|  -.m  h  ,1 
iiuinlier  ol  directors  as  had  power  tn  uit 
for  the  cotiijiaiiy,  acting  jointly  and  i*  a 
hoard.  .  .  It  is  an  ohvioiis  con^idii.itioii 
that,  it  it  wcit"  otherwise,  a  i|Uwniiii  of 
diliilors  nii;illt  meet  at  lUie  plaee  with 
|Hiwer  to  act  lor  the  .'oiniiany,  and  aiMlliot 
i)uoruni  nii;;lit,  at  the  same  time,  nieet  at 
another  |d<ice  with  ei|iial  |iovver,  and  cnim.' 
to  an  o|ipositi)  detei'ininatioii.  B'lt  it  » 
matiiiesl  that  ilii'  scil  w.is  allixeil  witlidiii 
llie  authority  of  the  directors  ineetiuj.'  11.1  a 

Uiard,  uinl  tii.'  Ixind  is  thelefore  v>ild.' 
■Si.  too,  Channel,  II.:  "  WilliMiit  savuiu 
til  at  the  hoard  are  luiuiid  to  unit  a!  .my 
[larticiilar  jiLicc,  yet  whiii  an  iniiliDniy  i» 
Kiveii    to  a    less    iiuinlier  to  hind  the  wlnilc 


ho 


or  aiiv  other  inemoer  o 


f  ;h. 


d,  is 


llni  ai^eiiJ  of  the  comniiiv,   tin*  ]irinei|de 


.f  th 


il.'d 


iiiphes  to  I, IS  acts. 


\V, 


think  that  Itiiield.  <'.  .).,  has  cmfounded 
the  acts  of  a  director  as  aj^eiit  of  a  1  (i>m. 
|iiiiy,  and  as  ni'inlxM'  of  the  Uiard  liy 
which    the    all'iirs    of    the    c paiiv    aro 


r   case  the  wlol 


governed.  In  the  latti 
ri)aHoninf{  w.eil.l  s,.ein  to  he  with  the  Mm- 
iiosota  ih'cisioii  in  BildAin  v.  Canli.  I  1,  2d 
Minn.  t:l,  and  a^^.iiiiit  the  deiiNJun  of  lite 
Vermoir,  Court.    .\s  a  inemher  u!  the  hoard 


a   director    his    no 


in.l.' 


it'O'l-'iit    entilv. 


He  acts  .aniply  as  i>iie  ni  a  hoiiiil,  as  an 
Hrliitiiilor  does  nil  an  uliitration  ,see  i'ct«>r- 


Non  0.   .11 


re,  1.-,  «'.  II.  7-i\  •  \Vi 


Dowl- 


in;(,  4   Kl.  k  n\.   U  :  llinton  r.  Mead,  27 


L.  .1    Kx.    11(1;  St; 


Iwortli  I',    Inns 


1:!  M. 


of 


\V.  Itltt)  ;  or  as,  in  K,i.;land,  a  nienilici-      1 1 


sirv  il 


les  in  rmineelion  \Mth  vesfrv 


mei'liniLfs.     (.See  .■^rail.li'n;  ''.   l.iKaiit.  :t  II. 
li.  Can.  413  ;  h.  r.  in  Q.  H  .  It  (.,».  U.  7»,'0, 


all  miy  lie  pfi'Miil,  ami  m.iy  havi'  tin' 
opportunity  of  ■•\pti's-.inn  their  ,l^sellt  er 
disseii!."  'Ah.I  l'ii;olt.  IJ.  :  '  N  >  .l.i'ilit 
this  is  the  dci'd  of  tin"  e.inip.iliV  if  It  !•*  tin" 
deecl  of  the  directors  pi-.|>,'tly  done  Tin' 
ipicstion  is.  whctli"r  it  w  so  done.  Tli'' 
special  act  in.'ikes  lh"i|uonni  ><(  a  iiii'>t 
iin;  "(  directors,  three,  ainl  the  i;i'liinU 
iii't  speak.^  al.so  of  nie.'tinifs  cif  dii'  lor*. 
Thici'  directiu's  have  iiivi'ii  their  as..nt  to 
the  issul.it;  uf  this  hind  ;  Iml  wei.'  ilieya 
nieetiiij;  .'  Clearly  they  weie  nut:  Imt, 
on  the  contrary,  the  se.  letarv  c.isa:diy 
piclceil  up  three  ineiiihers  of  the  Imir I  nf 
direrlors,  and  ohiained  their  ii'^seiil  -.I'lia' 
lately.      T'      seal  has  Id'cn  li\ed  williuit 

the   aiithoiity  of  a   n tini?  oi  diieetor.s 

!in  I  tl'.e  bund  is  tliei.lorc  invalid.  "  The 
dceisi.iii  W.IS  under  the  Kiij^diili  Ciiiniiil- 
nie»  .Act,  IHJ.'i,  ami  a  speiial  a.t,  but 
Ihe  r<iliii  il'-'ili mil  of  the  case  i>  as  ai'l'li- 
c.ahlf  (o  iiK  'iiporateil  ciunpinies  lur  ui 
Kn^laiKl.  .So,  ill  St..ys|..n,  &r.  C.  .  v. 
Ciav.'r,    [j  V,i.   .St.  3»ti,  it   was  well  held, 


1. 1 


PAUT   v.] 


CORPORATIONS. 


377 


such  as  arc  registered  on  the  books  of  the  iussueiiition,  the  stuck 
being  transl'oraiile  un[y  in  that  way.     Nu  person  becomes  a  Htoek- 


v^lidi-  ii  mlilrurii  liml  !h".'|i  lliaili'  l?y  the 
Kwiil  "I  i!pi!i.i;^fis  on  OIK'  .-^iil''  ami  Ihnvt-r 
on  tiie  uihi'i,  licit  >li  1  Kiiiiiioiis  ot  oiu\  or 
iiifii  of  tiji'  lriaim>;cr.s  (in  cllV'-t,  "  tiiivct- 
ors  ),  !!"'  ■'!  ■'  iin  Ttiiig  of  tilt'  iMwrii,  tli;it 
t!uv  wi'M  lit'  'Ajlliii^  to  chaii}.';c  tlio  cou- 
tiiii,  'liil  not  iiiiiii  llu'  ii>iii|>any,  iiiul  \v,>8 
Hut  I'viilfiiiv  i:;!!!!!.-.!  ilii'ciiiiniiiiiy.  ''Thf 
I'liiiinu't  "ouiil  1)1'  1  liiiiii;ii|  only  I'.v  the  inu'- 
l!(,s,  uii'l  till'  i(j!ii|iaiiy  c.iiiM  iiiiitc  in  tlif 
cl),ii!;;i' oi:l,\  liy  st.s  !i '.inl  m'tini^'  in  ntntfii 
i'oi;ii>'l.  i'li'l  iii>t  liy  Uie  si'Vcral  iiji'niliris 
ol  till'  luaiil,  aiiswi  liuj^  III  ,i[i|hmU  oI  tile 
iitlii'i'  piiily.  Ndili  •  .inviTNitiiiiis  :iiiil  (ii'c 
l;ir.i'.i"ii^  '•ii;;ht  not  to  lj<'  iciiivrtl  in  wi 
litii.i'.  Till  ml  ol  ilic  iiiiitcil  l)onni,  .iinl 
ii.ii  i>l  if>  ilifiunitfii  I'li'ini'iit-i,  is  tile  niiu'iT 
to  Ih  jii'i'Vi'il. "  /'"</.  The  siiiiie  piin- 
iijili' ,i|ij>'i('>  not  only  to  tin  rasrs  of  iiriii- 
tr.itoi^  an. I  \ff-U\  nii'ii,  as  \vc  Imvc  jminti-i! 
out,  iiiit  to  nil  laif.s  wiiirc  two  oc  inorc 
jiiiiiii^  li.'.M-  to  a' t  III  II  .iiiclnial  rliar.'-'trc. 
Tim-,  in  liix  c.  llalnslall-Uuiwari',  '■'•'['.  II. 
'M>K  it  wa.  licM,  thai  wlii'ii'  iin  aiit!uii;ly 
mis^iviii  !iy  Vi  Kli/.  cli.  2,  to  iiinil  i  liilif- 
ri'ii  a^  a|i|iirntii-i"(  •'  liy  till'  u.sscnt  of  two 
jiwict's"  iin  iinli'iitnif  ol  an  iipiiri-ntiic  as- 

SCillrll     to     liy     till'    two    JllMlilcS     vyij /•((/.'  // 

was  viiiil,  ami  no  .scttirini'iit  was^ainril  liy 
sciviiii;  nndi'r  it.  So,  ajjain,  tin-  >;ciirial 
piiii' ipli-  in  M'lalioii  to  ajii  n' i.'s  is  tlnit 
wii.ii  an  antlioiity  i-  ^.'iv'  n  to  twoor  inon- 
]H r^iiii-- til  ilo  a  piivat.  art,  tin' act  issaliil, 
to  Kill. I  till'  |iiinii|ial,  ■•iily  wlu'iiall  of  tln'm 
iiiii'iii  in 'loiii',' it.  Ainlovt'r  c.  (Iiul'ti'n. 
r  .\.  11.  :io|  ;  .Irwctt  i\   Alton,    /A    'J.;i. 

1m   l>i>|i;ilrli    Lilli'   of   I'a.ki-Is    IV    Itijlainv 

.M.uml.  I'll.,  TJ  N.  II.  •JO.-,,  -j.jr.  I'arkcr, 
<'.  .1.. -.aiil:  "  W'r  ari' lit  ii|iinioii,  that  vvlicn' 
till'  li\!a«:<  111  a  |>ii\ati'  I'oriioralion  ((iiiliT 
iij".!!  ll\i' ilin  I  toi-  jiowir  to  act  in  liilialf 
111  till'  .'.ii|iciration,  witliont  spiciul  li'nila- 
limi  1-  tn  tin-  niaiiiii  r,  a  niaj.irity  may  .nt, 
wiliiiii  '.111'  M'o|if  111  till'  aiitlimily  '^ivi'ii  to 
till'  li<.;ii'.|,  mill  liiml  '111-  <'or|iiii-atioii,  citlnr 

wlini'    lliL-ri'    is    II    rollMlllatliil'    ol    all    to- 

X'' till  I,  ami  u  roni'mi-i'iic'i'  ol  a  inajoiity  ; 
Mr  ttl;,),.  till. re  is  a  if^ialar  tai'i-tiiij,;,  at 
wlii.li.ill  ,,iii;lil  l«.  |ii'i'si'nl,iiiiil  a  inajiii'ity 
iitiiilly  ini'ri  iiiiil  art  Uy  a  major  votr. 
Siivinijs  Hink  ■•.  Davis,  M  <'oiim.  ii'l.  Amf 
wl.i  11  ill.'  ai'l  |iiM|iii|'t..>  lo  Iw  ilif  in't  i»f  tin- 
'iiaiil,  it  may  Ih-  |.|i-siiii,.  -I  <feM  it  Wiw  thf 
i.'t  III  a  inai'irilv.  wn'o  *•»«•  ciiiitriiry  is 
^liiiwii.  W'l-  arr  imK  a«.iii'  of  anv  \v.l!- 
M'til.'il    firini  i|>li',    or    nsai;.',    wlii.'li    Hill 

irrv  ii>    i:!rtlii.r    Mian   this.       'I'l asi  s 

ilii.'li  liiiM  tli»t,  a  majoritv  of  u  ilrtiniti' 
■  niL!  avw-mlilnl.  a  inaji-r  jinrf  of 
—  nililfil  nniy  iU't,   |iri'siiiii«i«i»»   a 

ll'^;.li■ll    iii..i'*ii|o,  or  oiir  ml  noliri'.  '      ,%!iil 

A^nr. ;   "  Tlii'ic  lif*  MilVguartls  in  eoiiBul- 


tation .  ami  ■  onsiiknttion  i  of  [mliry,  ns  well 
as  ol  roii.^tniitioii,  which,  in  tin  iiliscncf 
uf  MjK'cial  aui.hiirity  aiiili'Mixin;;  u  ilill.i'tnt 
ciiiii'sr,  lui'iiisit  all  ai^nnifiit  in  tavor  uf 
till'  |Hisitioii,  Hull  Hit  authority  tn  two  or 
inori!  o!lii'i'i>  m  ajjdits  of  a  i'<ii  jiocation,  in 
liR'ir  ilisrU'limi,  to  do  n'ltai  ;  ai'Is.  IS  not 
wi  II  fxciuti'il  hy  tin-  asM Hi  ol  all,  it  >;ivi'n 


(HI  rail 


tn  th. 


\h'> 


iti'ii  I 


inc  ol 


Tavki'ts  r.  Hilliiiin   Manul.  Co.,  12  .N.  11. 
•Ji:>i,,>,r  I'aiii.r,  V.  J. 

Nolwiilisti.niiiiii;  the  holiliiig  of  livd- 
tii'M,   ('     .1.,  in   lii.iik  of   Miililli'linr\   r. 


Kutia 


&i.  U.  \i.  ( 


io  Vt,  l.'i'.i,  17ii, 


ami   hi.'    stalciin'iit  thrir,  tiiat  "  tli 


ail'  nnmiions  ivoiii'  ilo 
ioiity  ol    thr  iliiri'ti 


111 


hdil 


I'  ra.-i'.'i 
'iiscnl  of  a  mil.. 
^'ivi  n  si'iiaialily, 


iniiiii);  n|iiin  tin  conipany, 


think    till'    hiii<li'i;i   in    tlir   Mininota 


11 


I. in  i'.  t'anliciil,  'Jti  .Minn,  -lo,  is 


till'  hi'tttl  l.iw  ;  anil  that  '. iir  ^ilirl'il  nih' 
that  llii!  si'|iaiati'  iii'iii.ii.  iiiiliv  iliialiy,  of 
till'  jicrsons  roiiiiMi,ii|j;  ihi.  fiiivi'inin;.:'  limiy 
ol  the  >iir(iiiiali.iii,  is  i:ot  tin'  iirtioli  "t  iht' 
con.stitnlril  IwkIv  of  ini'ii  I'iothri!  with  mr. 


jmra'i'  |iowiis,   is  thf   morr  rational  .-iin', 
anil  i.s  snjiiiorti'il  hy  tii-'  j;it'!it  wciijht  ol 


I'l 


tl 


ontv. 


loiii'.ii'): 

Was   ailnl 


th. 


In  (.'aiif.irii 
ill'  111 


r.'.solnluin  an- 
riuiiiitioii  iiio|ii'rty 


it  a   stork nolihrs'  iiirit 


ftl  vihirii  ihi'  tni.sici's  ol  till'  i'om|iany,  ainl 


!l>l    tl 

Th. 


n'  oihi'r  s 


torkil. 


I" 


miiliinrrnnt    ol     Ilif    ('iiiii||iii'iy    was 


vi'sli'd  ill  till'  trii>ti 


i  ithont  aliN  llii'.'t- 


in^  as  IS  lioini,  tli>  y  a.tril  on  tin-  ri'so'iitioii 
of  till'  sl'irkhi'li'.fl-  ini'rting  Tin'  rn'.irt 
Inhl  that  tin  ri'  .Mis  iioihin),;  in  thr  inlni'i' 
if  111"  I  dill's,  ,'i.s  riimii'i'lril  \Mlh  till    olijii't 

I  hii'li 


aim  Inisin  s,  i 


•f  1 1 


a  ;.;rm'ial  |.ii\m'I  in 


II  romiiai'.N 


IliSll'l 


I'l  on  I 


I  hi'  t 


1  hi'i 


I 
I  not 


arlim,'  as  a  iKaii'.,  to  si  il  ami  mnvrv  thii 


n.ijiriiy  I 
111'   roiiit 


ifth. 


M|.|.!i!iy,  I'Miili 


lU 


i|ilii'i|. 


Till'   roiiit    sav   :    '    Tin 

tioil  Was   the  |i|i.l.rlly  id    the   artillri.l   111 


|iiiilnity  in  i|n. 


int, 


fpaii'il    liv    l! 


si  itlltl', 


rii. 


wlioh' 


ti;h'  was  in  th«'  rnriiniaiion.     Tin-  stork- 
liol.l TN  Wi-n*  i.ot  in  till  ii   imlividnal  i  aju 


ritlis  oWiirrs  <» 


f  thi 


|iiii(ii'rty  lis  truants 


tn  i-omnion,  .jomi  ii-nanls,  ('o.|xirini'r.s  oi 
iilhi'rwi-i.  ((.i.ihain  I',  (illisoii,  'J8  Cal. 
fil;  Mi.  (..li'.s  r.  Kmh.'-t.  r  (  iiy  Ihink,  II 
I'ai);! .  1','."*.)  This  jijin-'iinoii  is  s-i  plain 
that  no  citation  of  ainhoiitii's  is  iii'cih'il. 
Had  the  stoi  kti'ihliTs  ali  cxcciiti'd  ,i  ih'iil 
of  the  )i|..|>«  ify,  they  loiihl  have  conv.'yid 
no  title,  lot  the  reasiiii  Ih.it  it  Was  liot  in 
th.Mi  i  WTii'i'Iock  V.  .Monllon.  I'l  Vi,  .''.■.'1 )  , 


and   what   they 


ill   not 


tl 


irliisclv(<s 


tlii'V  could  not    hv  ri'siihiliiin  or  otln-l  wine 


Hiithiii'i/e  another  to  do  Ini  tin  m. 


;Ti. 


Hinitinn  lonll   inlyait  — .-oiil.l  •■nlys|.«!Hk 
—  Ihiuugh  the  iiH'diiiiti  |>rc»<'nliL'<l  \iy  litw, 


[!  hflfiii 


m 


in  ^ 


V  ;.  'i 
r„:   it 


1::(-^' 


378 


COMMENTARIES  OH  SALES. 


[book  II. 


holder,  subject  to  such  liabilities,  and  succeeding  to  such  rightg, 
except  by  such  trausfci*.     Until  such  transl'cr,  the  prior  holder  is 


1^ 


and  tliut  is  its  board  of  tristi-es.  It  is 
suid,  iiowtwiT,  that  the  truiitees  woiv  uU 
prosi'iit  iiinl  participutiMi  in  the  proceed- 
i)i<{s  lit  the  stock hohlers'  :iiicetiii<r,  and 
assented  to  the  resolution  ;  iliat  tlie  reso- 
lution therel'oic  was  ajipruved  l)y  all  of  tlie 
constituents  of  lliu  eorporution,  nud  the 
powers  of  tlie  corporation  were  fxliaiist- 
ively  exerrisi^d.  But  tliey  were  acting  in 
their  individual  characters  us  stockhold- 
ers, and  not  as  a  boartl  of  trustees.  In 
this  character  they  were  not  authorized  to 
perform  a  corporate  act  of  the  kind  in 
ijuestion.  The  power  to  sell  and  convey 
could  only  l)e  conferred  l>y  the  trustees 
when  assembled  and  acting  as  a  board." 
Gashwiler  v.  Willis,  3:J  Cal.  11.  See,  fur- 
th"r,  ,\li'(_"iillouj{h  V.  Moss,  5  Denio,  ."»7.'> ; 
Conrou.  I'ort  llenry  lion  (,'o.,  12  Marb.  27, 
«:j  ;  Hex  V.  llend,  1  Uurr.  -^jIj,  '2.V.J1  ; 
Cainineyer  v.  United  (iernian  Lutheran 
Churches,  2  .Siiidf.  Ch.  208,  221,  228  ; 
State  V.  Aucker,  2  Uich.  215,  281,  283. 

VVo  have  ivl'errecl  to  the  faitt,  in  answer 
to  the  position  taken  by  Kedlield.  C.  .(., 
in  the  liank  of  Miildlebury  t>.  Uutlan<l  & 
Washington  U.  15.  Co.,  30  Vt.  l;')'.),  that 
where  the  act  of  a  director  is  done  iu  the 
capacity  of  an  ngeiit  of  tlie  company  rather 
than  ill  that  of  a  director,  sui'h  cast;  would 
come  within  the  rule  that  the  acts  of  thii 
agents  of  the  company,  within  the  scope 
of  their  employment,  bind  the  company. 
This  rule  would  cover  all  such  cases  as 
those  where  a  director  acts  as  the  min.iger 
of  a  comi)aiiy  or  in  a  clerical  capai  ity. 
And  there  is  another  distinction  which 
might  lie,  tiikeii,  namely,  that  while  direct- 
ors acting  as  such  can  only  act  in  their 
jiidici't/  posit  inn  as  members  of  a  tioaid, 
yet  where  tliey  have  to  perCoiin  any  acts 
of  a  iniiiiil^n'ii/  cliai  aeter  tliese  can  be  per- 
formed by  them  without  meeting  together 
as  a  bo. lid.  Thus,  we  should  say,  where, 
at  a  meeting  of  the  board,  an  order  was 
made  for  the  execlltiuii  of  a  >ieed  !iy  the 
president  attaching  the  seal,  the  aci  of  at- 
taching the  seal  lould  Mi!isei|Ui'ntly  be 
dime  by  the  president  ministerially,  with- 
»iut  the  presence  nf  the  rest  of  iho  board. 
Or  if  property  were  vestcii  in  a  board  of 
trusti-es,  and  at  a  meeting  t»4'  the  board  an 
onler  was  made  fur  I  lie  conveyance  of  such 
property,  the  act  of  ixecuting  tiie  deed  be- 
ing then  not  jiidii'ial,  the  deed  would  be 
valid,  though  siibsecpieiitly  <'Xecuted  sep- 
aratelv  bv  the  trustees.  In  the  California 
case,  (iasliwiller  i'.  Willis,  3;{  Cal.  11,  20, 
and  in  other  cases  cited  in  this  note,  the 
<piestioii  iif  directors  acting  as  agents  is 
<!overe(l.  Thus  in  the  California  case  at 
p.  20  the  court  say  :   "Tlie  power  to  sell 


and  convey  could  only  be  confern-d  by  the 
trustees  wluui  assembled  mid  actiiig'as  a 
board.  As  u  board  they  could  piriuna 
valid  corporate  acts,  and  confer  autiioiity 
witiiiii  the  lU'oviiice  of  their  pn.veis  iipuii 
the  'rustees  individually,  or  U|i<iii  any 
othe.  parties,  to  iierlorm  acts  as  the  .igeiitjj 
of  the  corpiiratioii."  The  ipiotiuii  li;u, 
often  been  decided  that  where  parlies  act 
in  it  iiiinuleriul  and  not  in  a  jtulicml 
capacity  their  acts  may  be  perfoiiii.il  m|i. 
urately  ;  but  where  they  act  jiidicinllv, 
('.  f.,  wliere  it  is  necessary  for  tlieiu  in 
exercise  a  juilgnielit  U|ic)  i  the  siilijett, 
then  they  can  <mly  act  when  togetlut, 
Thus  it  has  been  held  in  Kiigland  fnuii 
the  very  earliest  times,  on  this  priii.  iplr, 
that  the  acts  of  magistrates,  wlieiv  iln'  ;m 
is  to  be  the  result  of  their  joint  opiiiiuu, 
can  only  be  performeil  by  thrm  at  a  mcTt- 
iiig,  — such  as  ill  making  onh'tsipfiiiiiiival 
(lle.Y  i:  Wykes,  Aiidr.  'S.IS  ;  2  .Stl.  l(i!i:i; 
Uex  r.  Colli,  Burr.  iJiii);  orders  of  filia- 
tion  (Ilex    V.   West,  ti    Mud.    KSO;    r,illiri;rs 

V.  I'riun,  2  W.  IJl.  1<>17),  and  appuintiiniit 
of  overseers  (Ui'X  r.  l''oie.st,  :i  1".  IJ.  :;«|. 
Ill  this  last-named  case  Lord  Keliyoii  s.iij: 
"  It  is  admit ti'd  that  in  the  case  of  nnlii^ 
of  removal  the  magistrates  iiiiisi  let  In. 
gether,  and  for  this  reason  that  they  slmiilil 
assist  each  other,  and  that  the  result  et 
their  conference  should  be  the  gioiiiil  iil 
their  deti'rmiiiation.  Now  1  e.iiiiint  iliv 
tinguish  this  ca.se  from  that.  This  is  not 
merely  a  minixUriitl  act  ;  if  it  wcic,  hko 
signing  a  rate,  that  might  perhajis  vaivtlu' 
i|Uestion.  But  it  is  a  judicial  act,  wlniviii 
the  justices  are  to  exercise  a  discictinii. 
And  in  order  to  make  this  a  ^'ood  a{>|"iint- 
nii'iit  the  Justi(tes  should  have  arii-.l  tn- 
gether."  Hex  v.  Forrest,  ,>  T.  i;.  •'!'.! ;  H'.v 
V,  (Jreat  .Marlow,  2  Hast.  241,  me  in  m- 
coitl.  So,  ill  Buttye  i\  (iressli'V,  8  Kiist, 
3h<,  it  was  lii'ld  that  where  juiliiial  ait< 
are  to  1m'  done  by  two  or  inoh'  peisoin  it 

is  reijiiisite  that  tliosi-  acts  should  lie  ai^'r 1 

Upon  by  such  persons  together  ;  Imt  alur 
they  have  di-lilieiatcil  and  agreeil  toLirtliiT 
upiui  the  act  to  be  clone  they  liiiv  tlii'ii 
si'paratidy  sign  the  warrant  or  iinler  to 
carry  that  act  into  execution,  Tlie  same 
principle  was  acted  on  in  IJi'X  r.  .iiistii' il" 
Don'hester,  1  Str.  ;{'.»;>,  with  refeiiiicc  to 
justi(!es   si;;ning   a    ]ioor's   rate,  wlieie  it 

was  held  that  the  two  justices  are  i es- 

snry  to  sign  the  rate  only  by  way  of  Innii, 
for  it  is  the  chiirch-wiirdens  and  ovriseeis 
that  have  the  power  of  making  it,  aiid  tin' 
jiistiei-s  liaving  insisted  on  their  riL;lit  to 
act  judic  ially  instead  of  niiiii>ii'iially,  an 
altaclinieiit  was  ordeied  a^zain^t  tlii'iii. 
W.'  think   these   distinctions   lully  meet 


[book  II. 

:U  rights, 
huldor  is 

I'livtl  liy  llic 
iunili^  as  a 
ilil  |«rloriii 
er  iiutliunty 

iiiWlTS   UJiun 

'  uiiuii  any 
IS  llic  ,ij5i'i]is 
Uc.^tliiii  li;ia 
\  liiii-lics  act 

\[o\\\\i'\    si'||. 

b  jiiilii'i;illy, 
lor  lliciii  Id 
ihe    siilijirt, 

.'II     tlll^i'llllT. 

ii,i{l.iii<i  t'i'diii 

li.S    jll'ilK  i|lll', 

vlii'ii-  till'  ;iit 
lint  iii>lniuii, 
III  al  it  iiii't't' 
I's  III'  iniiiival 
•i  Sir.  lu;i-j; 
ilcls  of  tilia- 
80 ;  Uilli'i'fs 
a|>i>'jiimiiriit 
;!  T.  11.  :!-). 
Ki'iiyiiii  -..lij: 
use  1)1'  iiiilirs 
iiiu>l  iiii  til. 
It  llicv  -li.iilU 


VMXl  v.] 


CORPCilATIONS. 


379 


IVlUlt     (it 

i^ni  iii'l  111 

llllliil    (lb- 

riiis  is  nut 
WiMi',  lilic 

|1S  VillV  till' 

■1,  whi'iviii 

iji^rrilinll. 

m1  ii|i]iiiiiit- 
'  aili-.l  I"- 
;.  :v.i ;  H's; 

HIT  ill  ill'. 
y,  8  Kast, 

liliiiill   lU'tH 

|ii'rsiins  it 

,|  lie  ai^iwil 

;  Imt  iilU'r 
,m1  to'ji'tiii'r 

V   111. IV  tlll'Il 

ul'   .inl-r  I'l 

rill'  siniP 

.liiNtii'  till 

iv|i':i':iri'  ti) 

wlii'iv  it 

arc  iii'i'i'S- 

V  of  li>riii. 

|(i    (iVllTil'lT" 

it,  ami  till' 
lir  riu'lit  t» 
.ii'iiailv,  an 
in-t    ilii'iii. 

lullv  mi-'i't 


tlio  stockholder  for  all  purposes  of  law.  ITcnce,  in  Richmond  v. 
lions,'  it  was  held  that  the  delivery  ut"  certilioutes,  and  a  power  of 
attorney  authorizing  their  trausfrr,  to  the  proslilent,  not  as  prcsi- 
lii  nt,  but  as  vendee,  did  not  relieve  the  vendor  tioni  his  liability 
as  stockholder  on  the  insolvency  of  the  bank  ;  tuid  that,  in  respect 
to  such  shari'S,  sales  made  by  him  in  l"'el)ruury  and  June,  1873, 
left  liini  still  the  statutory  owner  of  the  shares  on  tlie  insolvency  of 
till'  biiiik  in  St'ptemlKjr,  1873.  llis  liability  Jis  such  stockholder  was 
the  same  as  if  he  had  sold  and  transferred  the  shares  to  the  presi- 
dent tin  the  day  of  the  insolvency  of  the  bank,  when,  as  siieh  a  sale 
could  only  have  been  made  by  him  in  contemplation  and  actual 
knowledge  of  the  suspension  of  the  bank,  it  would  operate  us  a 
fiaud  on  the  creditors  ;  an  eil'eet  which  the  law  would  Jiot  |>ermit. 

Where,  with  reference  to  the  ownership  of  stock  in  a  company, 
the  issue  is  between  the  receiver  representing  the  creditors,  and 
tile  person  standing  on  the  register  of  the  bank  as  a  shareholder, 
the  creditor's  generally  are  entitled  to  know  wlio,  as  shareholders, 
have  pledged  their  individual  liability  as  set.'urity  fur  its  delvis,  en- 
ijiigeinents,  and  contracts.  If  a  perstuj  permits  his  name  to  appear 
and  remain  in  its  outstanding  ecrfilieates  of  stock,  iuul  on  its  rc- 
<rister,  as  a  shareholder,  he  is  estopped,  as  l>etweeu  himself  and  the 
cieilitnrs  of  the  liank,  to  deny  that  he  is  a  sliarrholdi'r :  and  his 
iinlividual  liability  continues  until  there  is  a  transfer  of  the  stock 
on  the  book  of  the  bank,  even  where  he  has  in  good  ftiilh  pre- 
viously sold  it  and  delivered  to  the  buyer  the  certilieate  of  stock, 
\vitli  a  |)ower  of  attorney  in  such  form  as  to  enable  the  tninsfer  to 
1)1'  niade.- 

lii  Whitney  r.  Ihitlcr,''  tlie  court  held  that  where  the  seller  de- 
liveis  the  stock  certilicates  and  iiower  o(  attorney  to  the  buycu*, 
relying  upon  the  promis(>  of  tiiu  latter  to  have  tin'  nec<'ssar_;  trans- 
fer made,  or  where  the  certiliciite  and  ptuvcr  of  attorney  were  de- 


ili.  ililliiiiltii's  wliii'Ii  li'il  to  till'  ili'i'i.-.ii>n 
111  111.-  I'.aiik  nf  MiiliUi'hurv  v.  l.'ullainl  A; 
Wa-liiii-Kiii  K.  \{.  Co.,  :{•»  Vt.  ir.i'.  -i» 
iliiUiuii  whiili,  obviously, not \vitlisia!iiliti« 
till'  >tii'iin  o|iiiii(iii  of  its  coir-fnii'-''  i-x- 
|M-^.il  liy  Iti'il'ii'lii,  C.  .1.,  wf  think  <mii- 
niit  Ih'  sitstiiiiietl  citluT  on  priii' ii'ii'  or 
aiitlioritv. 

iiiit  uncle,'  the  .statiiti-  of  tS  Kli/alx'th. 
ell.  '2,  rri|iiiiini,'  the  iisni'iit  of  two  iiiNii.c.s 
t')  a  |iaii>li  iiiil'-ntiirc  ot'  iiipH'iitii't-sliiii, 
till' a^si'iit  III'  till-  two  niHi^istnitt's  is  surti- 
'ii'iitly  --iiriiilii-il  liv  oni'  of  tliciii  first  iiiai- 
iiij;  it  aliiiic,  ami  Ix'ini,'  aft<  vituls  pii  wnt 
«lii'ii  till  iitluT  .'*ijrris  it  ;  Cortlii'i.  in  I'lfi't, 
i-*  :is  tlioiiyh  both  sipni'il  totri'tlK-r,  fortlii'V 
tin  II  MMit  ami  ,iit  juiliiiallv  in  a;Tt'cm|[» 
tilth.'  |iro]>rii'ty  of  tli**  nn.iisiiii>.  Rc-x  r. 
Wiiiwiik,  8  T.R.  454.     St-u  Uatik  of  ln«- 


laiiil  .  Kviuis'Cliaiitii's.  f.  II.  I.,  ('as.  S89, 
^ilni.  ili'iih  iliily  si^;iii'il  liy  Irnsift's  uf  an 
incoriMii'iituil  I'lniiity,  Imt  to  >\liii'h  tlin 
I'orponiti'  .si'iil  wus  liaiiiliili  iitly  iillixiil  l>y 
till'    scrli'tary     of    tlic    llUsti'cs,    Well'    lirld 

invuliil. 

'   I'Jl  IS.  27,  58. 

-  havis  I'  .'<i)i'it'ty  of  F.sscx,  44  <'oiin, 
.';S2  ;  A.liliily  r.  Stoi'ini.  ti  Mill.  (i'.i-J  :  An- 
ilcrsoii  r.  riiilaili'l)iliia  WiiM'lmiisi' Co.,  Ill 
r.  .*<.  17'.'.  l*"''  ;  .lolmston  f.  I.al'in.  WA 
V .  a.  80(1.  8114  ;  Tnrnliiill  r.  rayson,  Ha 
V.  ^.  418:  ISrown  »'.  Ailams  ."i  Hiss.  181  ; 
ftitvis  i\  StfVfns,  17  r.lat.  Ii  2.'.!»  ;  Irons 
c.  Maniif  Nmi.  I'.ank,  '.'7  K.il.  Ki'i..  .'.''I  ; 
Uow.l.'il  V.  Nat.  Bank,  IWowu  Nul.  Buuk 
Cits.  \m. 

«  11»U.  i.  «». 


ti 


i     •  i 


t  ■  ' 


yj 


M  :  li 


880 


COMMENTARIES  ON   SALES. 


[book  II. 


livcrcd  to  the  hnnk  without  coininunicating  to  its  ofTiccrs  the  name 
of  the  buyer,  the  seUer  wouhl  be  held  liable  as  a  shareholder  un- 
til, at  least,  he  should  have  doue  all  that  he  reasonably  could  liave 
done  to  elTect  a  transfer  on  the  stock  register.  IJut  the  (  i:::t 
further  held,  where  the  deleudauts,  through  their  agents,  tlic 
brokers  who  sold  the  stock,  and  through  whom  they  received  tlio 
money  paid  for  it,  surrendered  the  certilicates  and  power  oi  attor. 
ney  to  the  president  of  the  company,  he  receiving  them  with 
knowledge,  not  only  that  the  defendants  had  parted  with  all  till*' 
to  the  sto(;k  and  had  been  paid  for  it,  but  ahso  that  it  had  hwx 
purchased  at  auction  by  the  vendee,  the  responsibility  of  llie  de- 
fendants must  be  held  to  have  ceased  upon  the  surrender  ol'  the 
certificates  to  the  company,  and  the  delivery  to  its  president  of  a 
power  of  attorney  sulhcient  to  ell'ect,  and  intended  to  ell'ect.ti) 
that  odicer's  knowledge,  a  transfer  of  the  stock,  on  the  booiis  of 
the  association,  to  the  purchaser.' 

In  IMack  i\  Zacbarie,*  which  was  an  attachment  of  shares  in  a 
corporation  for  an  alleged  debt,  it  was  held,  1.  That  a  provisimi 
in  the  charter  of  a  corporation  that  transfers  of  its  stock  shall  he 
nnide  only  on  its  books,  is  for  the  benefit  of  the  corporation,  ami 
tiond  fide  purchasers;  attaching  creditors  cannot  take  advantai:*' 
thereof.  The  provision  applies  only  to  transfers  of  the  legal.  nMt 
of  the  ecjuitable  title."  2.  Though  the  positive  or  customary  law 
t>f  the  place  where  the  C(u*poration  is  created  governs  the  Iraiisiir 
t)f  its  shares,  yet  if  there  bo  no  positive  ()r  customary  law  to  the 
contrary,  a  transfer  good  by  the  law  of  the  place  of  the  owner's 
domicile  is  valid  everywhere.* 


4 


fn 


'  This  ciise  is  ilisliii^iiishcil  from  tiioso 
ill  notii  2  to  |i.  U7'.'  ill  tl.Mt  in  tliosc  cusi's 

the  fortillrilli's  of  stm'k  iiiul  tlic  iiowits  of 

attorney  wcii-  ;{ivi'ii  to  llic  imri'lmscr  of  tlm 
Htock  illstt'Uil  of  to  the  liiillk,  Hi  w;is  itollu 
ill  Wliilncy  v.  Hutl.T,  118  I'.  S.  (i.'i.'j.  In 
this  ciiM^  it  is  tl'cati'il  IIS  iiiiiilo;;i>iis  to  that 
of  a  ^I'lintor  of  a  tlt'cil  (lc|iosititii;  it  in  tin! 
projHT  olllif  to  be  iccoriicii.  Tilt'  ^mi'tul 
mil'  thru  is  tliat  the  ilcfil  is  I'onsiilcii-il  us 
ri'coidcil  lioin  till"  tinii'  of  sii.'h  lit'iiosit. 
2  Wash.  U.  r.,  H.  .1,  oh.   I,  §  h-Z. 

••'  W  How.  4S:l. 

'  Till"  ;,'i'ni'ral  construction  wliii-h  has 
In'imi  put  u|ion  till*  I'liartrrs  of  Itiinks  con- 
tainiii;;  similar  |>i'ovisioiis  us  to  tlii>  trans- 
fer of  tlicir  stock  is  that  tlu'  provisions  urn 
dcsi^llfil  solely  for  the  safety  rtlid  seeiirily 
of  tlie  hunk  itii'lf,  and  of  purchasers  with- 
out notice  ;  mill  that,  as  Is-twcen  vciiilor 
and  veiiih-e,  a  tniiisfcr  not  in  conforn.ity 
with  such  provisions  is  frood  to  |msH  the 
fiiuitahle  title,  and  ijevrst  the  vendor  of 
til  iiiluruHt  iu  the  stuck.     Bank  of  Utica 


V.  Sinalley,  2  Cow.  778  ;  OilU.rt  iv  M  in- 
cheater  Iron  Co.,  11  Wend.  tiJS  ;  Cniii- 
inercial  Kaiik  of  lliitfalo  r.  KoilwiiL'lit,  'I'l 
Wend.  ;tt;2  ;  Qiiiner  r.  The  .M.irliMira.l 
Ins.  Co.,  10  .Mass.  47ii;  Ser(,'eant  v.  Flank- 
tin  Ins.  Co.,  H  I'ick.  IKi. 

*    It    is   Well    retlled    ns    rt    (hxlrilic  of 

international  jurisprudence  that  |irrs.iiial 
property  has  no  locality,  iiiid  Ih.il  I  lie  liw 
of  the  owner's  domicile  is  to  d't'tnillii' 
the  validity  of  the  transfer  or  alii  tiii'i"ll 
thereof,  unless  there  is  some  |Mi>llivc  or 
customary  law  of  the  country  where  it  is 
found,  to  the  contrary.  This  do. nine  wis 
rcc(ii{ni/ed  and  iillirmed  by  tin'  Sii|iiviiie 
Court  of  i.ouisiana  in  the  case  nt  I'lii' 
I'liited  States  f.  The  I'nited  States  H.iiik, 
8  Uoh.  (I.a.)  'liVl,  as  a  part  of  its  int.  iiia- 
timial  Jurisprudeneo.  It  was  appiicij  m 
support  iin  aKsit;nment  made  in  rcimsyj- 
viinia  hy  the  liank  of  t!ie  I'liitcd  St.ili>  lo 
certain  assijrnecs,  who  wen'  iiitervciiois  nf 
Koods,  di'liLs,  credit.s,  ami  elfects,  in  Luiii-.- 
lann.      Thu  court   hehl  that   tliu   asMi^'ie 


PART   v.] 


CORPORATIONS. 


881 


The  obligation  of  the  contracts  of  a  corporation  is  not  impaired 
l)v  its  liiasolution;  such  ohlij^ution  Rurvivt'9,nn(l  the  creditors  may 
I'liltdio  their  claims,  in  any  mode  permitted  I»y  tlio  h)cal  laws, 
ajruinst  any  property  beh)n<j;in}?  ti)  the  corporation  which  has  not 
piissfd  into  the  hands  of  fnnid  Jiilr  purchasers,  hut  which  is  held  in 
triot  fur  the  company,  or  for  the  stockholders  thereof.' 

I>y  Rule  1)4,  of  the  rules  of  practice  for  courts  of  ecpiity  of  the 
I'liilid  States,-  rijrht  of  action  is  pfiven  to  stockholdi'rs  of  a  cor- 
poral iou  where  the  directors  fail  to  take  proceedin<.'8  to  enforce 
tiic  iJLilits  of  a  corporation.  Hut  the  stockholder  so  nctinji:  must 
show  tliut  he  has  made  an  honest  and  earnest  effort  to  induce  the 
coi|M)rulion  to  take  the  necessary  steps  to  obtain  relief.'*  In 
QiiiiKV  r.  Steel,"'  the  plaintilV,  without  so  brinjrini;  himself  within 
this  rule,  filed  a  bill  to  i'uforcc  a  claim  of  one  corporation  ajjainst 
aiiiitlicr  for  a  violation  of  a  coutruet,  but  the  court  held  that  it  was 
piiiily  ami  simply  a  suit  to  reeitver  money  on  a  written  contract 
ill  an  iiftion  in  the  nature  of  assumpsit,  and  dismissed  the  bill.^ 

.\ii  au'reement  for  the  purchase  by  a  syndicate  of  the  controlling 
interest  in  a  mini;  that  one  of  tlp'ir  numlier  was  to  "  control  Mjo 
maiiaircment  of  the  mine,"  was  held  to  be  necessarily  subject  to 
^iii'li  reascmable  rules  and  reirulatious  as  should  be  adopted  in  a 
|tr()|it'r  way,  cither  by  the  stockholders  or  the  directors,  for  the 
f,'()V(  rmiient  of  the  conduct  of  the  oHieers  of  the  company.^ 

An  aetual  manual  sultscription  on  the  books  of  a  railroad  com- 
pany is  not  indispensably  neccssaiy  to  bind  a  municipality  as  a 

iiH'iii,  lH'iii<;  nrovrd  to  l)c  vali>l  iiiiil  vfti't'.-  net    ill    t)ii>    iiiiittcr,    iini(iuiitiiiK   tii    Hiich 

tiiiil   I'V  till'   law  of  I'fiinsylviiiiiii,  was  to  ^'rossly  i'iiIikiMi'  coiitliiit  iis  woiiM  Iciid  to 

he  lii'i'iiiril  i'(|iially  viiliil  ami   rll'i'c'tiial  to  ii'ii'iiK'iJi.ililc   loss   to   iiiiii   if  lie  were  not 

pii"  till'  >,'i">'N,  iTi-iIits,  iiiitl  I'lfivts  of  the  |ii'iiiiiltri|  to  liiiii^'  tlif  matter  IwConi  tlio 

Imiik  to  till- assi^iii-i's  ill  Louisiana  au'iiiiist  coiirts,       Aii<l    siiili    in'i^lcit    uii>l    rcfiiHal 

till'  lilt  iiliini,'  I'l'i'ilitors,  who  )ia>l  iiotii-r  of  must  not  be  siimilafcii,  Imt  real  and  jicr- 


till'  a>'-I^Mnii'iit   lit   tliu  tiiiM!  of  their  al- 

t.irlllli'lll. 

I  M  iMima  V.  Tht'  rotoiniu;  Co.,  8  IV- 
li-rs,  'Jsj. 

■  Ml  IT.  S.  ix..  X. 

'  ll.iwes  V.  Oakliind.   lOi   V.    S.    4.'iO. 


sisiiij  ill,  after  earnest  elfuits  to  overeuiiio 
it.     jietroit  r.  jieaii,  Inti  f.  S.  M7. 

1  Ciaiit  I'.  Parker,  \\r,  V.  S.  51. 
The  ('i>iii|>l.iiiiant  was  the  ]iresiilciit  of 
the  eoiii|)aiiy,  and  the  rules  and  regiihi- 
tioiis,   whiili    Were    held    leasoiiahle,    |)ro- 


4*51;  lltiulinu'ton  M.   I'uliiier, //).  48'2,  'LSil ;      liihileil    the    tnasiirer    from     j'ayiii);    tlin 


Di'llMit  r.   jleail,   10(5  U 

*  IJo  |-.  .S.  -Jtl. 

'  .\  Miii;le  stoekholder  in  it  eor[ior,iti'>n 
has  iiii'liiiilitedly  the  same  rii,'ht  to  itisti- 
tiili' I'',m1  |iroeeedinxs  ai,'ainst  the  enrpoia- 
tieii  I'lir  the  |iroti!ftioii  of  his  inili\idiiil 
riiilils  that  a  third  jiarty  not  a  stoi-khoMer 
|xissessi'H  ;  hut  when  he  lesoi  ts  to  siieji  |iro- 
('iM'iliiii,'s  to  proteet.  Hot  sim|ilv  siieli  iiiti'r- 
eit<,  hut  the  |iro|M'rty  and  ri;u'lits  of  the 
eorpiiration  against  tlio   aetioii  or  threat 


el ks  of  the  eom|>aiiy  unless  tliey  wuro 

si>;iied  by  the  )iresii|ent  or  viee-presideiit, 
aiel  i'i);intersii;neil    by  the  .seeretary  ;    di- 

lerti'i!  that  sll|i]ilies  reiiuiled  should  U) 
ordered  tlirou^di  the  lii'ad  olliee  ;  and  ail- 
thoii/i'd  the  vii'e-|iresident  to  si;;n  for  the 

eom|iiiliV  ill  the  absi'lii'e  iif  the    ]iresidellt, 

and   the    sii|ieiiiitendi-nt    at   the    mine   tu 

draw    III    the   aliseii i'    the    |iresident   on 

the  loMipany  for  debts  incurred  at  th« 
mine.      It    WIS   held    that   there  wa.s  lioth- 


Ptii'd  ii'ti'in  of  third  jmrties,  thus  assuming;  in^  in  this  to  interfere  with  the  eoiiiiihiiii- 

iliitii's  |iro|>erly  devolviii|(  iipoii  its  diree-  ant's  control  ax  general  iiiaiiugiT.     Grant 

tors,  he  must  show  h  clear  breach  of  duty  v.  I'arkcr,  siijini. 
on  till  ir  part  in  neglecting  or  refusing  tu 


\i: 


: 


m 

hi 


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♦  ^ 


I 


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S'M 
I 


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y  I 

I 

V 


882 


COMMENTARIES  ON  6ALES. 


[book  II. 


Hiibscribcr  to  the  capital  stock.  If  the  body  or  aprciicy  having 
aiithurity  to  nmko  such  a  subscription  pusses  an  ordinance  or 
rcsohitiun  to  the  eiToct  that  it  dues  thereby,  in  the  name  iind  on 
behalf  of  the  municipality,  subscribe  a  specified  amount  of  stuck, 
and  presents  a  copy  uf  that  ordinance  or  resolution  to  the  com- 
pany for  acceptance  as  a  subscription,  and  the  company  docs  in 
fact  accept,  and  notifies  the  municipality,  or  its  proper  a<;cnt,  to 
that  cifect,  the  contract  of  subscription  is  complete,  and  binds  tin- 
parties  acconlinj;  to  its  terms.' 

Thou<;h  purchasers  of  negotiable  securities  arc  not  ehargoal>le 
with  constructive  notice  of  the  pendency  of  a  suit  affect iiitf  llio 
title  or  validity  of  the  securities,*''  those  who  buy  such  securities 
from  litigating  parties,  with  actual  notice  of  the  suit,  do  so  ut  tliiir 
peril,  and  must  abide  the  result,  the  same  as  the  parties  from  wliuni 
they  got  their  title.' 


>  Rates  County  ».  WintPis,  112  U.  S. 
325  ;  NiiKi'iit  i'.  Tlie  Sii|M-rvi.s()r.s,  111  Wall. 
241  ;  Countv  of  Mnultrii;  v.  Itui'kiiij^haiii 
.SiivinjfH  Hiiiik,  '.•2  L'.  S.  C3I  ;  C.miity  of 
B.ites  t>.  Wintt'is,  97  I'.  S.  «:),  !•(». 

■■^  County  of  Warivn  r.  Maivv,  l>7  V.  S. 
96  ;  White  v.  Vermont  At  .Mass.'ll.  R.  Co., 
21  Mow.  tt7ii ;  Moran  v.  Ci>niniissii)iicrH, 
2  Blutk,  T2-2. ;  M.-icei  County  v.  Hackct, 
1  Wall.  83;  (ielpcke  «.  l)ulm(|ue,  1  Wall. 
175;  Cityot  Lexinjiton  i>.  Ihitler,  H  Wiill. 
'JS'i  ;  St.  .losciih  TowiLsliip  c.  lioj^erf),  W 
Wall.  (S4t. 

•  a.otlimil  County  v.  Hill,  112  U.  S. 
183.  The  established  rule  is  that  a  lin 
j)f.iutem,  duly  prosecuted,  and  not  eollu- 
sive,  is  notiee  to  a  purehaserso  as  to  alleet 
and  hind  his  interest  l>y  the  decree  ;  and 
the  Uh  pciitlr)i.i,  under  the  old  ehaneery 
pnmtiee,  hesjan  from  the  servieo  of  the 
subpiuna  al'tiT  the  hill  was  tiled.  The 
leading  Aiuerieaii  ease  on  this  sulijeet  is 
Murray  r.  Ballon,  1  .lohns.  Ch.  56«J,  when) 
the  (|ue»tion  is  exhaustively  diseussed. 
The  same  >{iMieral  principle  that  all  per- 
sons who  (^ome  in  as  purchasers,  pcniU'ntc 
lite,  thouj;h  they  are  no  parties  to  the  suit, 
they  and  their  interests  shall  lie  hound 
and  avoided  bv  the  decree,  is  very  old 
Kn^lish  law.  Haens  v.  Canning,  1  Ch. 
("as.  301;  Fleming  r.  I'asjc,  IJcp.  temp. 
Finch,  321  ;  Cnlpipia'r  v.  Austin,  2  Cli. 
t'as.  115,  221  ;  Preston  v.  Tulthin,!  Vern. 
28rt  ;  Anon,  lb.  318;  (Soldsoii  i*.  'lard- 
ncr,  cited  in  Self  v.  Madox,  lb.  45!) ; 
Fineli  v.  Newnhani,  2  Vcrn.  216  ;.Sorr«ll 
V.  Carpenter,  2  P.  Wms.  482  ;  Bishoj)  of 
Winchester  ».  Paino,  11  Ves.  200.  Ixird 
Haiilwieke  hail  fretiuont  occasion  to  review 
tho  doctrine.  Mid  ne  always  held  that  a 
purehasiT,  pendente  litr,  was  Imutul  by  the 
decree  in  the  suit.     The  iicndeney  of  the 


suit  was,  of  itself,  notice  ;  and  he  nh- 
served  that  the  rule  was  to  prevent  u 
fjreater  mischief  that  would  arise  Ky  pen. 
pl(^  purchasing  nmler  liti^'atinn.  (laitli 
V.  War.l,  2  Atk.  174  ;  Worslcy  e.  S,;ir. 
Iiorou^'h,  3  Atk.  3!)2.  In  Walker  i'.  Sinui- 
wood.  Amb.  075,  Lord  Camden  said  ;  "I 
hold  as  a  general  rule,  that  an  alii'iiaiinii 
pendiii<{  a  suit  is  void."  And  Sir  Win. 
•  Iraiit,  in  the  Bishop  of  Windn  stcr  r. 
Paine,  11  Ves.  I!t4:  "lie  who  puriiiUM's 
during  the  pendency  of  the  suit  is  Unuul 
by  the  decree  that  may  be  made  aj;aiiist 
the  person  from  whom  he  derives  title 
The  litijfatin^  parties  are  excniptnl  liom 
the  necessity  of  taking;  any  notice  of  a  title 
so  acipiired.  As  to  them,  it  is  as  ii  im 
such  title  existed.  Otherwise,  suits  «(iul.l 
be  interminable,  or,  which  would  !"'  tlu' 
same  in  elfcct,  it  would  be  in  the  |>|ea>iir>' 
of  one  party  at  what  peri'id  the  suit  sliouM 
be  dctermiin-d.  The  rule  may  sniiirtinii's 
operate  with  hardship,  but  general  ciiiivt- 
nience  reijuircs  it." 

The  courts  in  this  country  have  gcin'r- 
ally  adopted  the  same  rule  as  well  to  >ali's 
of  personal,  as  to  sales  of  real,  propeity.  •"'I'l' 
Murray  i'.  liylburn,  2  Johns.  Cli.  141  ; 
Park  V.  .lohiison,  11  Wend.  4");i  ;  Kellnu't,' 
V.  Fancher,  23  Wis.  1  ;  McCutiliemi  r. 
Miller,  31  Miss.  83  ;  Scudder  r.  Van  .\ni- 
bulbil,  Ftlw.  Ch.  30;  Maddens  c.  Spulii-t, 
20  .I.dins.  .'173  ;  Mcllary  v.  Files.  4  .Imi'S 
(N.  C.)  Ki|,  234;  Fletcher  r.  Feirell.  !' 
l>aua  (Ky.),  377  ;  Lcitch  r.  Wells,  ii 
Barb.  650.  In  tho  County  of  Wamni'. 
Marcy,  »7  U.  S.  101),  tlie  court  say : 
"  Whilst  the  doctrine  of  constnn  tive  nn- 
tice  arising  from  lis  pendeni>,  thoni,'li  often 
severe  in  its  application,  is,  on  the  wlioli', 
a  wholesome  and  necessary  one,  all'eiiing 
the  authoritative admiiiistratioucfjustii'i'; 


PAIIT   v.] 


CORPORATIONS. 


383 


In  a  suit  for  the  transfer  of  stock  claimed  to  bo  wron^rly  stand- 
ing ill  tlic  name  of  another,  not  only  that  other  perbun,  but  the 


the  i'Xi'i'|itioii  (of  sftli'Mdf  ii<-){otiuhli>  |iu|«'r 
til  its  a|i|ilii'iiti(>ii  iH  ilciiiiiii(lc(l  Ity  otlicr 
I'liiisiiii'iiitioiis  t>i|iiiilly  iiM|Nii'tant,  iiHiitlVi't- 
jiijj  till'  In-f  o|M'riitioiis  of  (■oniiiifi'cc,  and 
tli.il  I'liiilidi'iK't'  ill  tliu  iiiNtiiiiiii-nts  by 
whi.li  it  in  I'airinl  on,  whicli  Im  .ho  nccfs- 
Miiv  ill  a  liii.><iiii'H!<  (■oiuiniiiiitv."  <Mi  tin! 
Miiiii'  i">iiit  M'l'  Lciti'h  v>  Wcll.s,  48  N.  Y. 
fiSti :  Si. III.'  V.  Klliott,  11  oliio  St.  '2^2; 
Ki.lli  I  r.  Khlcr,  IS  I'li.  St.  ;i«8  ;  Diiniiit 
V.  huva  t  oimtv,  1  Woolw.  ((l» ;  Winston 
r.  W.stli Mt.  'h  Ala.  7»>0  ;  National  Hunk 
of  WiisliiiiLiioii  r.  Tixas,  20  Wall.  7'.;  ; 
Oi.'dtt  r.  Sii|iiTvisoix,  l(i  Wall.  «i78  ;  Minis 
V.  Wist,  ;\H  lia.  IS.  In  Diaiiiontl  v. 
hiwivim-  (bounty,  U7  i'li.  St.  ;J.'»3,  it  whh 
licld  tli:it  till'  piii'i'lia.st'i'  ol  county  IkiihIs 


)  Hiiit  ami  tln'ir  nxHigtiH  nrr  con'onii'd,  Ity 
till*  suit  so  |M'nilin^.  If  it  witc  not  so,  us 
lias  ol'ti'n  Ihtii  statcil,  tlic  lit  ignition  Moiilil 
III!  intcrniiiialili*.  Wlicn  wi-  ronsitii'i-  what 
lis  /M'litlnis  is,  we  ut  oner  must  SIT  how  con- 
cliisivf  this  is.  LokI  Cranuiii'tli,  in  \M- 
laniv  V.  Sal.iiii',  1  He  (i.  &  .1.  Titlil.  .178,  m'cII 


i«i>> 


It  is 


ai'i'ily  I'oiii'it  to  spea 


k  of 


/i.«;»')i</i'/i.<i»sairi'rtin^'a  |iiiri'hasfr  tlii'ou^li 

tilt'  iliM'tritif  of  notii'c,  tlioii){ji  uiiilou)it<-<lly 

till'   lanf^iin^'c  of  the  courts  often   so  tic- 

scrilM's  Its  opci'ation.     It  iiU'ci'ts  him  not 

iM'causi'  it  amounts  to  notice,  Imt  Ix-ciiuso 

it  iliM's  not  allow  liliijiiiil  fiditiis  til  ijii'f  lo 

tiHirrs,  )H  ntliini  Ihr  liUijdlinii,  riijlits  to  the 

firn/H'iiii  in  ili.i/iiiti-,   xu  n.i  to  pirjiiilifc  thf. 

o/i/Kitil''    ixutij.      Where    a    liiipition    is 

fiiiiiliHli  till-  is  allei'teil  with  constructive     )H'iiiliii^    iK'tween   a   )ihiiiiliir  ainl   a  <le- 

notice  ;  hut  the  decision  is  ]ilaceil  s|M'ciallv     feinlunt   as   to   the   ri^'ht  of   a   partieulnr 

on  f 


ice  ;  hut  the  decision  is  ]ilaced  siM'cially 
tlic  ground  that,  in  IVnnsylvaiiia,  siicli 
txunUari'  not  dceinod  neijotiahlc  securities. 
Ill  till'  I  aM'  of  Murniy  r.  I^yllmrn,  a.lohns. 
eh.  411,  where  the  doctrine  as  to  //.v/wo- 
diitt  »a>  held  to  iipl'ly  to  rliDsis  in  actiim 
(ill  that  case,  it  liond  and  niort<;ii;{e),  as- 
si;,'iicil  l>y  one  of  the  parties  funili'iiti'  lite, 
an  iiii|»iiiaiit  distinction  was  taken  liy 
till'  ciiiiit  as  to  the  ell'ect  of  the  doctrine, 
ill  till'  sales  of  pcr.soiial  property,  thus  : 
"II  \V.  hull  held  a  mimU-r  of  iniMtjiiifjes, 
mill  other  securities,  in  trust,  when  the 
suit  was  coiiiliienced,  it  eaniiot  he  pre- 
ti'inli'd  that  he  nii;;iit  Hafcly  defeat  the 
oliject  of  the  suit,  and  elude  the  justice 
of  llic  court,  hy  sclliii};  these  securities. 
If  lie  piHscsscd  cash,  as  the  proceeds  of  the 
trii.-.!  estate,  or  Iie),'otiahle  paper  not  due, 
or  jierliaps  movahle  |H'rsoiial  prujierty, 
Hiiih  as  horses,  cattle,  f;raiii,  in-.,  I  am 
not  pii'parcd  to  say  thi'  rule  is  to  he  car- 
ried so  fir  as  to  ullV'Ct  such  sales.  The 
srtlety  of  commercial  dealing  would  reipiire 
A  limitation  of  the  rule  ;  hut  bonds  and 
niiirl},Mi.'cs  are  not  the  subject  of  ordinary 
coimiieive." 

Ic  is,  lis  will  hp.  seen  from  what  we 
hnvc  stated  in  the  forej^oinj,',  now  well 
settled  that  the  sale  of  nc<;otialile  paper 
is  an  exception  to  the  rule,  as  it  is  an  ex- 
ception to  most  of  the  rules  relatiii;^  to 
sales,  \Vc  can  see  no  good  ground,  how- 
ever, \\\\\  till-  rule  should  not  as  wi" 
apply  to  iH'i'siuial  property  as  to  real 
estate,  ir  A.  and  It.  are'iii  litigation 
with  refcieiice  to  either  real  or  personal 
property,  and,  iicnding  the  suit,  one  of 
tlieni  siimild  sell  the  subject  of  the  suit, 
that  should  not  nlfect  the  rightii  of  the 
other  party  to  the  suit  to  have,  as  bo- 
twi'cii  themselves,  and  nil  parties  deriving 
interest  under  tlieni,  the  question  of  title 
disposed  uf,  80  far  as  tho  parties  to  the 


estate,  the  necessities  of  inankind  rei|uir« 
that  the  decision  of  the  court  ill  the  suit 
shall  )m'  binding,  not  only  on  the  litigant 
parties,  but  u/.tn  on  tfin.ir  irlio  ilirivf  tdle 
iimlir  l/uin  by  uliiniition.i  niai/f  iifmliiifi 
thf  suit,  whetlicr  such  alienees  had  or  had 
not  notice  of  the  pending  proceedings.     If 


this 


were  not   so. 


tli< 


ihl   I 


le  no  icr- 


tainty  that  the  litigation  would  ever  come 
to  an  end.  A  mortgage  or  sale  made  Im'- 
fori-  liiial  decree  to  a  person  who  had  no 
notice  uf  th(^  pending  procei'dings  woidd 
always  render  a  new  suit  necessary,  and 
.so  iiitciiiiinable  litigatinii  might  Ini  the 
consei|ueiice."  This  is  ijuitc  as  ap]ilicable 
to  the  sale  of  pcrsoiiallx,  pending  litiga 


tmn,  as  it   is 


to  th< 


e    sale   ot    realtv 


I 


t»f 


course  the  iirinciiile  onlv  applies  to  a  title 


pp 


derived  fiiiiii  a  party  to  the  litigation,  and 
not  to  title  or  claim  of  title  dfhitrs  the 
litigants.  The  principle  simply  relates  to 
niattt'l's  that  are  rev  Jiiiliriitu,  whether  the 
silliject  1m'  realty  or  pefhUiiilty.  See  Uob- 
iiison's  Case,  r>  Co.  ;i'J,  where  a  plaiiititr 
was  defeated  who  chiinied  as  administrator 


jh  iiiliiitf  lilr,  and  yet  was  held,  notwith- 
standing the  judgment,  to  Ih-  able  to  main- 
tain an  action  as  executor. 

The  doctrine  of  ("uliii'iipcr  r.  Aston,  2 
eh.  fas.  ILI,  I'Jl.aiid  Snricll  v.  Carpen- 
ter, 2  r.  Wins.  48'J,  is,  that,  iicnding  n 
litigation,  the  defendant  cannot  by  alieiia- 
11  tion  allcct  the  rights  of  the  idaiiititf  to  the 
propel ty  in  disiiute,  and  the  same  prin- 
ciple is  applicalde  against  u  |)hiintiti',  so 
an  to  |)i event  him  from  alienating  to  the 
t>.cjudice  of  the  defendant,  where,  from 
the  nature  of  the  suit,  he  may  have  in  the 
result  a  right  against  the  plaiiitilf;  as,  on  a 
bill  by  iidevi.see  to  establish  a  will  against 
an  heir,  if  in  the  result  the  devise  is  de- 
clared void,  the  heir  is  not  to  be  preju- 
diced   by   the  alienation  of  the  devisee 


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Photographic 

Sciences 
Corporation 


23  WEST  MMN  STREET 

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^^ 


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884 


COMMENTARIES   ON   SALES. 


[book  II. 


company  also  must  be  made  parties  to  the  suit.     No  relief  what. 
ever  can  be  granted  unless  it  is  found  to  be  the  duty  of  the 


(plaintiff)  pendente  lite.  See  Garth  v. 
Ward,  2  Atk.  174  ;  Worsley  i^.  The  Earl  of 
Scarborough,  3  Atk.  3&2. 

In  these  ca.«e3  it  is  .said  that  lis  pendens 
i.'i  implied  notice  to  all  the  world.  Lord 
Cranworth,  comiiicntinf;  on  this,  says : 
"I  confess  I  think  that  is  not  a  per- 
fectly correct  mode  of  stating  the  doc- 
trine. What  ought  to  be  said  is,  that, 
pendente  lite,  ncit/ier  party  to  th£  litigation 
call  alienate  the  property  in  dispute  so  as 
to  affect  his  opponent.  The  doctrine  is 
not  peculiar  to  courts  of  equity.  In  the 
old  real  actions  the  judgment  bound  the 
lands,  notwithstanding  any  alienation  by 
the  defendant  pendente  lite."  Bellamy  v. 
Sabine,  1  De  G.  &  J.  580.  So,  in  "the 
same  case,  Lord  Justice  Turner  said : 
"The  doctrine  of  lis  pendens  is  not,  as  I 
conceive,  founded  upon  any  of  the  pecu- 
liar tenets  of  a  court  of  equity  as  to  im- 
plied or  constructive  notice.  It  is,  as  I 
think,  a  doctrine  common  to  the  courts 
both  of  law  and  equity,  and  rests,  as  I 
apprehend,  upon  this  foundation,  —  that 
it  would  plaiidy  be  impossible  that  any 
action  or  suit  could  be  brought  to  a  sue- 
cessful  termination  if  alienations  pendente 
lite  were  fiermitted  to  prevail.  The  plain- 
tiff would  1)6  liable  in  every  case  to  be 
defeated  by  the  defendant's  alienating  be- 
fore the  judgment  or  decree,  and  would 
be  driven  to  commence  his  proceedings  de 
novo,  subject  again  to  be  defeated  by  the 
same  course  of  proceeding.  This  doctrine 
belongs  to  courts  of  law  no  less  than  to 
courts  of  equity  (2d  Co.  Inst.  375).  No 
case,  so  far  as  I  am  aware,  has  yet  oc- 
curred in  which  the  doctrine  has  been 
applied  so  as  to  affect  the  title  of  the 
alienee  of  a  defendant  by  virtue  of  a  claim 
not  interfering  with  the  title  of  the  plain- 
tiif  in  the  pending  litigation.  What  is 
said  in  the  cases  of  Worsley  v.  Lord  Scar- 
borough, 3  Atk.  392,  and  Mead  v.  Lord 
Orrery,  3  Atk.  243,  and  also  in  Metcalfe 
V.  Pulvertoft,  2  Ves.  &  B.  200,  seems  to 
me  to  tend  the  other  wav."  Bellamy  v, 
Sabin?,  1  De  G.  &  J.  584.  All  this  is 
applicable,  as  expressed,  to  judgments  in 
law  and  decjrees  in  eijuity,  and,  in  jjrin- 
ciple,  equally  to  persoinilty  ns  to  realty. 
Precisely  the  same  evils  would  result  from 
a  violation  of  the  principle  in  the  one  case 
as  in  tlie  other.  Lord  Romilly  said,  in 
Berry  v.  Gibbons,  28  L.  T.  N.  s.  5,  in 
deci(ling  that  lis  pendens  applies  to  per- 
sonalty, "The  whole  doctrine  of  lis  pen- 
dens would  be  cut  away  if,  when  a  suit 
was  registered,  a  person  could  say  he  did 
not  know  of  it,  or  if  the  doctrine  only  ap- 
plied to  real  estate.     The  old  rule,  that 


when  a  bill  was  filed  every  one  was  bound 
to  take  notice  of  it,  was  a  nuisanoe ;  but 
the  provisions  of  2  &  3  Vic.  c.  11,  §7 
with  regard  to  a  Hi  pendens,  were  reason- 
able, and  any  person  lending  inoiiey  is 
bound  to  see  that  the  property  on  which 
he  lends  it  is  not  affected  by  any  suit  so 
registered."  By  the  above  statute'iii  Eng- 
land, and  by  statute  in  many  of  the  States 
in  this  country,  registration  of  the  suit  is 
now  necessary  to  cause  the*  doctrine  of  lis 
pendens  to  api)ly. 

The  decision  in  Berry  v.  Gibbons,  28 
L.  T.  N.  s.  5,  was,  with  reference  to  per- 
sonalty, —  a  picture.  On  appeal,  it  was 
contended  that  the  doctrine  of  lis  priidem 
does  not  apply  to  chattels.  The  decision 
of  Lord  Romilly  was  reversed  (Bcriy  v. 
Gibbons,  29  L.  T.  N.  s.  88  ;  L.  1!.  8  Ch. 
747);  but  not  on  the  ground  that  the  Joe- 
trine  does  not  a])ply  to  personalty,  but 
that  the  decree  in  the  previous  suit  did 
not  affect  the  title  to  the  picture,  tlie  de- 
cree being  merely  that  the  defendant  in 
that  suit  should  administer,  and  did  not 
take  the  sale  of  the  [(ersonulty  out  of  her 
hands.  Numerous  authorities  were  cited 
to  show  that  Lord  Romilly's  decision  as 
to  the  applicability  of  a  lis  pendens  to  per- 
sonalty was  wrong;  but  none  of  the  cases 
cited,  nor  any  otlier  English  cases,  as  far 
as  we  are  aware,  sustain  such  a  view;  nor 
did  the  court  question  the  correctness  on 
that  point  of  Lord  Romilly's  statement  of 
the  law.  We  think  the  law  is  correctly 
stated  by  the  Mississii)pi  High  Court  of 
'Errors  and  Appeals,  in  McCutclien  v. 
Miller,  31  Miss.  60,  83,  thus:  "The  gen- 
eral rule  is  that  a  purchaser,  paid'-ntc  lik, 
takes  the  i)roperty,  subject  to  the  rislits 
of  the  complainant  or  phiintiff,  as  settled 
by  the  final  decree  or  judgment  of  the 
court;  for  otherwise  there  could  never  be 
an  end  to  litigation.  The  rule  had  its 
origin  in  con'.  ;■  iversies  touching  real  es- 
tate; but  it  may  be  conceded  that  at  this 
day  it  applies  with  etpial  force  to  contro- 
versies in  regard  to  personal  property;  and 
it  is  only  by  analogy  to  the  law  that  it 
is  applicable  to  proceedings  in  courts  of 
equity.  Where  the  suit  is  brouijlit  to 
recover  property,  and  tlie  party  is  suc- 
cessful, the  rule  is  one  of  almost  uiiiversal 
application  :"  the  purchaser  pendrnic  /'■ 
takes,  subject  to  the  righlr,  of  the  plain- 
tiff, as  settled  by  the  judgment  of  the 
court.  Nor  can  the  ])urehaser  in  such 
case  complain  of  the  harshness  of  the 
rule,  since  the  plaintiff,  even  if  driven 
to  an  original  action,  could  recover  upon 
the  strength  of  his  title  to  the  property, 
as  settled  by  the  judgment.     The  pur- 


PART  v.] 


CORPORATIONS. 


385 


Glibbous,  28 
'lice  to  per- 
pi'iil,  it  was 
;'  lis  prndens 
The  deuision 
;d  (Berry  v. 

L.  H.  8  Ch, 
that  the  Joc- 
■souiilty,  Ijut 
iou3  suit  ilid 
ture,  the  de- 
det'entliuit  in 

anil  tlid  not 
,ty  out  of  her 
ies  were  i:ited 
's  decision  as 
endcns  to  per- 
3  of  tlie  cases 
I  ciises,  as  far 
h  a  view;  nor 
jovrectiiess  on 
statement  of 
is  correctly 


company  to  transfer  the  stock,  and  as  to  that  controversy,  the 
company  is  an  indispensable  party.^ 

The  stockholders  of  a  Rhode  Island  corporation,  unable  to  meet 
its  liabilities,  were  individually  liable  for  the  debts  of  the  corpo- 
ration. C,  one  of  the  stockholders,  transferred  to  the  plaintiffs 
bonds  of  the  company  held  by  him,  to  meet  debts  due  by  him  to 
the  plaintiffs.  On  C,  becoming  insolvent,  his  assignee  disputed  the 
title  of  the  plaintiffs  to  the  bonds,  on  the  ground  that  their  trans- 
fer was  a  fraudulent  preference.  The  dispute  was  settled  between 
them,  the  plaintiffs  agreeing  to  indemnify  the  assignee  against 
any  loss  as  a  stockholder  of  the  corporation.  In  an  action  by  the 
plaintiffs  to  enforce  the  individual  liability  of  the  other  stockhold- 
ers, it  was  held  that  the  plaintiffs  did  not  by  this  contract  agree 
to  become  stockholders  of  the  corporation,  nor  to  indemnify  C. 
against  his  individual  liability  as  a  stockholder.     The   contract 

cliasor  from  the  defendant,  pending  the 
snit,  acquires  only  such  title  as  the  de- 
fendant can  convey  ;  and  the  judgment 
against  the  defendant  is,  by  operation  of 
law,  a  judgment,  so  far  as  it  relates  to  the 
recovery  of  the  property,  against  all  who 
ucqitln  his  title  or  possession  of  the  thing 
IHHilln;!  the  litiijation.  This  rule,  whether 
it  operates  harshly  in  some  cases  or  not, 
is  nevertheless  one  of  necessity,  and  as 
such  must  be  applied  in  all  cases  wlicrc  a 
pnrtij  is  adjudijcd  to  be  the  rightful  owner 
of  properly ;  and  where  another,  pendiitg 
the  conlruvcrsy,  comes  into  possession  of  it 
nmlrr  the  defendant  to  t/ie  suit." 

We  almost  wonder  how  there  ever  could 
have  been  a  doubt,  as  expressed  by  Chan- 
cellor Kent  in  Murray  i'.  Lylburn,  2  Johns. 
Ch.  441,  444,  or  a  contention,  as  made  by 
counsel  in  Berry  i'.  Gibbons,  29  L.  T.  N.  s. 
88 ;  L.  1!.  8  ( 'h.  747,  on  the  question.  The 
doctrine  of  lis  pendens  is,  in  effect,  nothing 
more  tiiiin  ati  applieation  of  the  unques- 
tioned doctrine  of  res  judicata,  which  is 
palpalily  as  iqiplieable  to  adjudicated  ques- 
tions connected  with  personalty  as  with 
real  estate.  The  doctrine  of  res  judicata 
extcnd.s  io  all  matters  of  fact  litigated  be- 
tween the  parties  and  adjudicated  upon 
Ly  a  court  of  conij)etent  jurisdiction  ;  the 
parties  and  all  persons  claiming  in  the 
same  ri<;lit  are  concluded  or  estopped  by 
the  results  of  the  litigation,  and  cannot 
a,s,'ain  dispute  the  same  facts  against  the 
same  jiarties,  or  those  claiming  under 
them,  See  Hoilenu  v.  Rutlin,  2  Kx.  6t)5, 
681;  Synjons  v.  Uees,  1  Ex.  Div.  410. 
"  When  there  is  res  judicata  the  original 
cause  of  action  is  gone,  and  can  only  be 
restored  by  getting  rid  of  the  res  judi- 
(ttln."  Per  Lord  Selborne,  in  Lockyer  «. 
Ferryman,  2  App.  Cas.  528.  And  per  Lord 
Blackburn;  "When  a  competent  tribu- 
TOL.  I.  25 


nal,  having  had  a  case  before  them,  have 
given  a  final  judgment,  it  is  res  judicata." 
Ibid.  Lis  pendens  is  simply  an  apjdica- 
tion  of  this  doctrine.  The  case  of  Murray 
V.  Lylburn,  2  Johns.  Ch.  441,  was  itself  a 
ease  of  a  chose  in  action,  to  which  it  was 
held  the  rule  applied.  The  same  doctrine 
was  held  in  Diamond  v.  Lawrence  County, 
37  Pa.  St.  353;  and  there  is,  in  principle, 
no  more  distinction  between  the  ap)dica- 
tion  of  lis  pendens  to  other  iMTsonalty 
than  to  choses  in  action  ;  and,  unquestion- 
ably, there  is  no  more  doubt  as  to  the 
application  of  lis  pendens  to  either  than 
there  is  as  to  the  application  to  either  of 
the  principle  of  res  judicata;  and,  we 
think,  the  application  of  them  both  is 
beyond  (piestion.  The  simple  principle 
is  that,  as  a  general  rule,  the  seller  of  per- 
sonalty can  give  no  better  title  than  ho 
posses.ses,  which  is  the  ba«is  of  the  doc- 
trine of  lis  pendens,  and  is  as  ajiplicable  to 
personalty  as  to  realty.  Sci^  fui'ther.  Park 
V.  Johnson,  11  AVend,  453;  Kellogg  v. 
Faneher,  23  Wis.  1;  Sciudder  v.  Van  Am- 
burgli,  Edw.  Ch.  30;  Haddons  v.  Spaders, 
20  Jolr.s.  573;  Mclinrv  «'.  Fries,  4  Jones 
(N.  C),  p:q.  234;  Fletcher  v.  Ferrell,  9 
Dana  (Ky.).  377;  Leitch  v.  Wells,  48 
Harb.  C50;  Grillith  v.  Gritfith,  1  Ilolfman, 
153;  Jackson  v.  Ketchum,  8  Johns.  479; 
Harris  v.  Carter's  Adnn.,  3  Stew.  233  ; 
Orwiggs  I'.  Myers,  3  iiibb,  279;  Jackson 
V.  Andrews,  7  Wend.  152;  Lodge  v.  Sini- 
onton,  2  Pa.  439;  Boiling  v.  Carter,  9 
Ala.  921;  Chandron  v.  Magee,  8  Ala.  570; 
Green  v.  White,  7  Black f.  242  ;  Walker 
I'.  Butz,  1  Yeates,  574. 

'  St.  Louis  &  San  Francisco  Rv.  Co.  v, 
Wilson,  114  U.  S.  60;  Central  Ry.  Co. 
V.  Mills,  113  U.  S.  249  ;  Thayer  «;.  Life 
Assoc,  112  U.  S.  717. 


Ill 


HI 


■i^ 


386 


COMMENTARIES  ON  SALES. 


[book  II. 


i^'IflB 


# 


was  made  for  the  benefit  of  the  assignee,  by  which  he  took  an  in- 
demnity for  himself  and  the  bankrupt  estate.  And  as  the  assignee 
was  not  liable  as  a  stockholder,*  the  plaintiffs  by  their  contract  of 
indemnity  assumed  no  liability,  and  held  the  bonds  unfettered  by 
any  equities  or  conditions,  and  retained  their  right  to  enforce  the  in- 
dividual liability  of  tiie  stockholders  for  the  payment  of  the  boiids.^ 

Statutes  icquiring  water  companies,  gas  companies,  and  other 
companies  of  like  character,  to  supply  their  customers  at  prices  to 
be  fixed  by  the  municipal  authorities  of  the  locality,  are  within 
the  scope  of  legislative  power,  unless  prohibited  by  constitutional 
limitations  or  valid  contract  obligations.  Wiiethcr  expedient  or 
not,  is  a  question  for  the  legislature,  not  the  courts.^ 

Bonds  were  issued  by  a  railway  company  in  the  Dominion  of  Can- 
ada. By  an  Act  of  Parliament  there,  it  was  enacted  that  new  bonds 
were  to  be  exchanged  for  the  old  ones ;  an  arrangement  to  that 
effect  having  been  previously  assented  to  by  a  large  majority  of 
the  stockholders  of  the  compan  ,  and  of  the  bondholders.  Tiie 
United  States  Supreme  Court  held  :  1.  That  as  there  was  no  con- 
stitutional prohibition  in  Canada  against  the  passing  of  laws  impair- 
ing the  obligation  of  contracts,  and  as  the  Parliament  there  had 
exclusive  legislative  authority  over  the  corporation  and  the  gen- 
eral subjects  of  bankruptcy  and  insolvency  in  that  jurisdiction, 
that,  therefore,  the  act  was  binding  there.  2.  That  parties  in  this 
country  who  were  holders  of  some  of  the  original  bonds,  having 
bought  them  with  notice,  in  legal  effect,  that  they  were  entering 
into  contract  relations  with  a  foreign  corporation  created  for  a 
public  purpose,  and  carrying  on  its  business  within  a  foreign  jnr- 
isdiction,  took  the  bonds  subject  to  the  principle  that  whatever 
disabilities  were  placed  upon  the  corporation  at  home,  it  retained 
abroad,  and  whatever  legislative  control  it  was  subjected  to  at 
home  must  be  recognized  and  submitted  to  by  those  who  dealt 


1  South  Staffordshire  Rj'.  Co.  v.  Burn- 
side,  5  Ex.  129  ;  Furdoonjee's  Case,  3  Ch. 
Div.  2(J8  ;  £x  parte  Davis,  3  Ch.  Div. 
463  ;  Streeter  v.  Sumner,  31  N.  H.  542  ; 
Aniory  v.  Lawrence,  3  Clitf.  523  ;  Hugely 
V.  Robinson,  19  Ala.  404. 

*  American  File  Co.  v.  Garrett,  110 
U.  S.  288.  As  purchasers  for  value,  they 
were  entitled  to  all  the  rights  of  bond  fide 
holders  for  value,  among  which  was  the 
right  to  enforce  payment  from  the  stock- 
holders of  the  company.  Swift  v.  Tyson, 
16  Pet.  1  ;  Gates  v.  Natioual  Bank,  100 
U.  8.  239  ;  Railroad  Co.  v.  National 
Bank,  102  U.  S.  14. 

*  Spring  Valley  Waterworks  v.  Schot- 
tler,  110  IJ.  S.  347,  353.  The  question 
was   settled   by   what    was   decided   in 


Munn  V.  Illinois,  94  U.  S.  113,  that  it 
is  within  the  power  of  the  government 
to  regulate  the  prices  at  which  water 
shall  be  sold  by  one  who  enjoys  a  vir- 
tual monopoly  of  the  sale,  and  that  such 
regulations  do  not  deprive  a  person  ot 
his  property  without  due  process  of  law. 
Where,  by  the  constitution  and  the  le- 
gislation under  it,  municipal  authorities 
have  been  created  a  special  trihiinal  to 
regulate  such  matters,  their  duties  are 
judicial  in  their  nature,  and  they  are 
hound  in  morals  and  in  law  to  exercise 
an  hone-st  judgment  as  to  all  such  mat- 
ters submitted  for  their  official  (iotcnnin- 
ation.  Spring  Valley  Water  Works  v. 
Shottler,  110  U.  S.  354. 


PART   v.] 


CORPORATIONS. 


887 


with  it  elsewhere  ;  and  that,  therefore,  the  Canadian  Act  of  Par- 
liament relating  to  the  bonds  was  binding  on  them.  3.  That 
the  Canadian  Act  of  Parliament,  in  dealing  with  an  embarrassed 
and  InsoKcnt  railway  company,  and  in  providing  for  its  reorgan- 
ization in  the  interest  of  all  concerned,  was  not  passing  an  act 
which,  if  passed  in  this  country,  would  have  been  in  conflict  with 
tiie  Constitution  of  the  United  States,  which,  although  prohibiting 
States  from  passing  laws  impairing  Iho  obligation  of  contracts, 
allows  Congress  "to  establish  uniform  laws  on  the  subject  of 
bankruptcy  throughout  the  United  States  ; "  the  Canadian  act 
being  in  entire  harmony  with  the  spirit  of  bankrupt  laws,  the 
binding  force  of  which,  upon  tliose  who  are  subject  to  the  juris- 
diction, being  recognized  by  ?.ll  civilized  nations.^ 

Where  an  individual  liability  attaches  to  a  shareholder  in  a 
company,  that  liability  continues  to  attach  itself  to  him  until, 
without  fraud  as  against  the  creditors  of  the  company,  for  whose 
protection  the  liability  is  imposed,  he  relieves  himself  from 
it.  That  he  can  do  by  a  bond  fide  transfer  of  the  stock.  But 
where  the  transferor,  possessed  of  information  showing  that 
there  is  good  ground  to  apprehend  the  failure  of  the  bank, 
colludes  and  combines  with  an  irresponsible  transferee,  with  the 
design  of  substituting  the  latter  in  his  place,  an*!  of  thus  leav- 
ing no  one  with  any  ability  to  respond  for  the  individual  liability 
imposed,  in  respect  of  the  shares  of  stock  transferred,  the  trans- 
action will  be  decreed  to  be  a  fraud  on  the  creditors,  and  he  will 
be  held  to  the  same  liability  to  the  creditors  as  before  the  trans- 
fer. He  will  be  still  considered  as  a  shareholder  quoad  the  credit- 
ors, although  he  may  be  able  to  show  that  there  was  a  full  or  a 
partial  consideration  for  the  transfer,  as  between  himself  and  the 
transferee.^ 


'  Canada  Southern  Railway  Company 
f.  GebhanI,  109  U.  S.  527.  See  Cam- 
brian Hallways  Company's  Scheme,  L. 
\l  'A  Cli.  294,  per  Lord  Cairns  ;  London 
Financial  Association  v.  Wrexliam,  &c. 
R.  H.  Co.,  L.  R.  18  E(i.  .566  ;  Bank  of 
Aiig\ista  r.  Karle,  13  I'et.  588  ;  Railroad 
P.  Ivwiitz,  104  U.  S.  12  ;  Relf  v.  Run- 
ilfl,  103  U.  S.  226  ;  Paul  v.  Virginia,  8 
Wall.  1G8. 

■^  liow.lcn  V.  Johnson,  107  U.  S.  251. 
The  question  in  this  case  arose  under 
the  Hanking  Act  of  1864,  c.  106,  which 
declares  that  every  person  becoming  a 
shareholdiT  by  transfer  succeeds  to  all  the 
liabilities  of  the  prior  holder.  But  it  was 
held  in  National  Bank  v.  Case,  99  U.  S. 
628,  that  a  transfer  on  the  books  of  the 
bank  is  not  in  all  coses  enough  to  extin- 
guish liability.  The  court,  in  that  case, 
declared,  as  one  limit  of  the  right  to  trans- 


fer, that  the  transfer  must  be  complete 
and  entire,  or  one  really  transferring  the 
ownership  as  between  the  parties  to  it. 
But  there  is  nothing  in  the  .statute  af- 
hrniing,  as  another  limit,  th.at  the  transfer 
must  not  bo  to  a  person  known  to  be  irre- 
sponsible, and  collusively  made,  with  the 
intent  of  escaiiing  liability  and  defeating 
the  rights  given  by  statute  to  creditors. 
In  such  case,  the  assignee  may  be  liable 
as  a  shareholder,  succeeding  to  the  liabili- 
ties of  the  assignor  ;  but  that  is  no  reason 
why  the  assignor  should  not,  at  the  elec- 
tion of  creditor.s,  .still  bo  treated  as  a 
shareholder ;  he  having,  to  escape  lia- 
bility, peri)etrated  a  fraud  on  the  statute. 
This  is  the  view  enforced  by  the  Chief 
Justice  in  Davis  v.  Stevens,  17  Blatchf. 
259  ;  liowden  v.  Johnson,  107  U.  S.  251, 
261. 


'VI 


V^ 


I  tit 


I 


il, 


ill 

i  1 


i 


, 


■■ 


I, ' : 


I 


388 


COMMENTARIES  ON  SALES. 


[book  n. 


A  subscriber  to  the  stock  of  a  company  is  not  liable  at  law  to 
creditors  of  the  company,  for  his  unpaid  subscription.  The  sub- 
scription is  part  of  the  assets  of  the  company,  so  far  as  creditors 
are  concerned.  The  stockholder  is  liable  to  the  extent  that  the 
subscription  represented  by  his  stock  requires  him  to  contribute 
to  the  corporate  funds,  and  when  sued  for  the  money  he  owes,  it 
must  be  in  a  way  to  put  what  he  pays,  directly  or  indirectly,  into 
the  treasury  of  the  corporation  for  distribution  according  to  law. 
No  one  creditor  can  assume  that  he  alone  is  entitled  to  what  any 
stockholder  owes,  and  sije  at  law  so  as  to  appropriate  it  exclusively 
to  himself.^ 

Coupons  detached  from  bonds  which  have  not  matured,  tbough 
the  coupons  are  overdue,  have  not  thereby  lost  the  quality  of 
negotiability  by  the  lav/-  merchant  ;2  and  being  made  payable  to 
bearer,  they  are  payable  to  anybody,  and  the  holder  is  not  al'lectcd 
by  the  disability  of  the  first  receiver  thereof  to  suc.^ 

Section  201  of  the  Revised  Statutes  of  the  United  States  prohib- 
its banks  making  any  loan  or  discount  on  the  security  of  their  own 
stock,  but  no  penalty  is  imposed  for  contravening  the  provisions 
of  the  act.  The  plaintiff,  having  borrowed  money  from  a  bank  on 
the  security  of  its  stock,  brought  an  action  after  default  by  him 
and  sale  of  the  stock  by  the  bank.  The  United  States  Supreme 
Court  held,  reversing  the  decision  of  the  Circuit  Court,  that,  as  the 
bank  and  borrower  were  equally  the  subjects  of  legal  censure  they 
would  be  left  by  the  courts  where  they  had  placed  themselves; 
that,  after  the  contract  had  been  executed,  and  the  security  no  lon- 
ger subsisted  in  the  hands  of  the  bank,  no  one  but  the  government 
could  urge  a  prohibition  against  the  legality  of  the  transaction.* 

In  Ottawa  v.  National  Bank,"  it  was  contended  that  an  assign- 
ment or  indorsement  of  the  bonds  by  the  payee  named  in  them  is, 
by  the  laws  of  Illinois,  a  prerequisite  to  pass  the  legal  title  in  the 
bonds,  and  to  authorize  a  suit  by  the  holder  in  his  own  name,  al- 
though they  are  also  made  payable  to  bearer.  But  the  United 
States  Supreme  Court  held  that  in  Illinois  as  in  New  York,"  the 


1  Patterson  v.  Lynde,  106  U.  S.  519  ; 
Sawyer  v.  Hoag,  17  Wall,  610  ;  Ladd  «. 
Cartwiight,  7  Oreg.  329. 

*  Thompson  u.  Penine,  106  U.  S.  589  j 
Cromwell  v.  County  of  Sac,  96  U.  S.  51. 

8  Thompson  v.  Perriiie,  supra  ;  Bank 
of  Kentucky  v.  Wister,  2  Pet.  318,  326 ; 
Thomson  v.  Lee  County,  3  Wall.  327  ; 
Bushnell  ti.  Kennedy,  9  Wall.  387  ;  City 
of  Lexington  v.  Hutlcr,  14  Wall.  282  ; 
Cooper  V.  Town  of  Thompson,  13  Blatchf. 
434 ;  Coe  v.  Cayuga  Lake  R.  R.  Co.,  19 
Blatchf.  522. 

*  National  Bank  of  Xenia  v.  Stewart, 


107  U.  S.  676.  There  i^,  also  another  view 
on  which  the  holding  in  the  caso  ciin  be 
sustained.  The  borrower  autlimizi'd  the 
bank,  in  a  certain  contingency,  to  sell  his 
shares.  This  was  not,  in  itsolf,  uiilavifiil. 
The  shares  being  sold  pursuant  to  tiic  au- 
thority, the  proceeds  would  be  in  tlic  l>ank 
as  the  borrower's  property,  and  tin'  money 
loaned  would  bo  an  offset  to  the  iirofmU. 
Ibid.  p.  678. 

5  105  U.  S.  342. 

'  Brush  V.  Admstrs.  of  llcpvcs,  3 
Johns.  439  ;  Dean  v.  Hall,  17  Wend.  "'4. 


[book  II. 

jle  at  law  to 
1.  The  sub- 
as  creditors 
cut  that  the 
to  contribute 
f  he  owes,  it 
directly,  into 
:'ding  to  law. 
to  what  ar.y 
it  exclusively 

fcured,  though 
he  quality  of 
le  payable  to 
is  not  affected 

States  jn-ohib- 
,y  of  their  own 
the  provisions 
•om  a  hank  on 
efault  by  him 
tatcs  Su[)reme 
,rt,  that,  as  tiie 
I  censure  they 
id  themselves ; 
3curity  no  Ion- 
ic government 
Tansaction.'' 
lat  an  assign- 
icd  in  thorn  is, 
^al  title  ill  the 
own  name,  al- 
ut  the  United 
cw  Yoi'l<,Hhe 

also  auothi-r  view 
11  the  ciisfi  ''•"'  1^"' 
er  lUitlioi-izt'J  the 
ngeiicy,  H)  ••^I'H  '''* 
in  itself,  unliiv'ful' 
mrsniiiit  to  tin'  au- 
uld  bn  ill  the  IwnK 
•ty,  and  tlu'  iiniiiey 
let  to  the  prdfeeds. 

rs.    of    Ui'ovcs,  3 
all,17Woml,''l4, 


PART  v.] 


CORPORATIONS. 


389 


V' 


holder  of  negotiable  securities  payable  to  a  person  named,  or 
bearer,  whether  they  are  indorsed  or  not  by  such  payee,  acquires, 
by  delivery  merely,  the  legal  title,  and  the  consequent  right  to  sue 
thereon  in  his  own  name.^ 

Parties  who  have  purchased  stock,  have  accepted  it,  and  re- 
ceived interest  on  it  for  years,  are  estopped  from  questioning  the 
validity  of  the  transaction,  and  of  repudiating  their  character  of 
stockholders  in  the  company  whose  stock  they  thus  hold.^ 

The  following  is  a  statutory  provision  of  the  State  of  Pennsyl- 
vania, regulating  banks :  — 

"  The  stock  of  the  bank  shall  be  assignable  and  transferable  on 
the  books  of  the  corporation  only,  and  in  the  presence  of  the 
president  or  cashier,  in  such  manner  as  the  by-laws  shall  ordain  ; 
but  no  stockholder  indebted  to  the  bank  for  a  debt  actually  due 
and  unpaid,  shall  be  authorized  to  make  a  transfer  or  receive  a 
dividend  until  such  debt  is  discharged,  or  security  to  the  satisfac- 
tion of  the  directors  given  for  the  same." 

In  National  Bank  v.  Watsontown  Bank,^  it  was  held  that  while 
this  gave  the  bank  a  lien  on  the  stock  for  the  indebtedness  of  the 
stockholder,  which  would  follov/  the  stock  in  the  hands  of  an  as- 
signee, yet  the  clause  docs  not  prevent  the  bank  from  waiving  its 
right,  nor  prevent  the  cashier  from  acting  fo:'  the  directors  by 
virtue  of  an  express  or  implied  authority.  In  that,  as  in  other 
matters  of  ordinary  business  within  the  general  scope  of  his  offi- 
cial duty,  he  is  their  appropriate  representative.* 


1  Jolinson  V.  County  of  Stark,  24  111. 
75;  Roberts  i-.  Holies,  101  U.  S.  119. 
The.  cases  of  Garvin  o.  WiswcU,  33  HI. 
21  fi,  and  Turner  v.  Peoria,  &c.  II.  R. 
Co.  95  111.  134,  are  distinguishable,  be- 
cause, ill  these  cases,  the  instruments  sued 
on  weie  not  negotiable,  in  the  sense  of  the 
law  nieieliant,  so  as  to  exclude  defences  or 
evidence  of  invalidity,  even  when  held  by 
A  1)0:1(1  fide  purchaser.  See  Wall  v.  County 
of  Mi)moe,  103  U.  S.  74.  In  Johnson  v. 
County  of  Stark,  24  111.  75,  Walker,  J., 
said,  ill  reference  to  municipal  bonds  and 
coupons  issued  to  railroad  companies  :  "  It 
seems  to  be  the  wdl-settled  doctrine  that 
state,  county,  city,  and  other  bonds  and 
securities  of  this  character  are  negotiable 
by  delivery  only,  without  indorsement,  in 
the  same  manner  as  bank-bills,  especially 
when  they  are  payable  to  bearer."  In 
that  case,  the  coupon  was  not  payable 
either  to  order  or  to  bearer,  but  the  prom- 
ise was  to  pay  the  amount  named  "  on  this 
coupon."  The  court  ruled  that  the  holder 
of  the  coiipon  could  sue  and  recover  in 
his  own  name.  See  New  Hope  Delaware 
Bridge  Co.  V.  Percy,  11  111.  467  ;  Super- 
visors of  Mercer  County  v.  Hubbard,  45 


111.  139  ;  Town  of  Eagle  v.  Kohn,  84  111. 
292. 

2  Branch  v.  Jesup,  106  U.  S.  468. 

8  105  U.  S.  217. 

«  So,  in  Case  v.  Bank,  100  U.  S.  446, 
it  was  held,  that  the  cashier,  who  repre- 
sented the  bank  in  the  act  of  transfer,  was 
authorized  to  bind  the  bank,  in  consum- 
mating the  transaction,  by  virtue  of  his 
office,  in  the  absence  of  any  by-law,  ac- 
cording to  the  usage  of  t:he  business  and 
the  practice  of  the  particular  bank,  pre- 
sumed to  be  known  to  and  approved  by 
the  directors.  See  also,  Wild  v.  Bank,  3 
Mason,  505  ;  Lloyd  v.  Bank,  15  Pa.  172  ; 
Bank  v.  Warren,  7  Hill,  91  ;  Bank  v. 
Steward,  37  Me.  519,  522.  It  may  be 
fairly  presumed,  that  the  principal  officer 
or  clerk  in  attendance  at  tlie  bank  during 
the  usual  hours  of  business,  is  authorized 
to  permit  the  transfer  of  shares  when  the 
case  presented  is  one  proper  to  be  allowed. 
Bank  v.  Kortright,  22  Wend.  348,  350. 
A  special  assumpsit  will  lie,  in  the  name 
of  the  party  injured  by  the  refusal,  against 
a  corporation  for  improperly  refusing  to 
make  a  transfer  of  shares  of  capital  stock. 
Kortright  v.  Bank,  20  Wend.  91. 


:     \i 


A  '•■. 


m 


I  I 


I    ' 


'■"'•''I  £  , 
if  ^- 


890 


COMMENTABIES  ON  RALES. 


[book  II. 


Under  the  above  statute,  A .  borrowed  money  of  B.,  to  whom  lie 
assigned  and  delivered  his  certificate  of  stock  as  collateral  secur- 
ity, with  authority  to  sell  in  case  of  default  in  payment.  On  A.'s 
default,  B.  sent  the  certificate  to  the  cashier  of  the  banii,  who  made 
the  requisite  entries  on  the  stock  ledger  which  he  kept,  it  being 
the  only  book  except  the  book  of  certilicates  showing  the  truusfer 
of  stock,  and  it  was  his  practice  to  keep  the  account  of  such 
transfers  without  consulting  the  directors  in  each  case.  The  lat- 
ter had  adopted  no  by-law  on  the  subject.  On  B.'s  instructiiii;  tlie 
cashier  to  sell  the  stock,  the  latter  informed  him  that  it  would  not 
be  necessary  to  send  him  a  certificate,  but  to  forward  a  power  of 
attorney,  which  B.  did.  Part  of  the  stock  was  sold  ;  the  proceeds 
were  remitted,  and  the  proper  entries  were  made  on  the  stock 
ledger.  A.  subsequently  became  insolvent.  Ho  was  indebted  to 
the  bank,  and,  on  the  directors  refusing  to  approve  the  transfer, 
B.  brought  suit  to  compel  the  issue  to  him  of  the  customary  cer- 
tificate of  stock.  It  was  held,  1.  That,  as  between  A.  and  B.,tlie 
titld  to  the  stock  passed  by  A.'s  delivery  of  the  certificate  with  the 
accompanying  power  of  attorney.  2.  That  the  acts  of  the  cashier 
were  binding  on  the  bank,  and  the  transfer  by  him,  made  on  the 
stock  ledger,  vested  in  B.  a  complete  and  unincumbered  title  to 
the  stock,  and  a  right  to  the  usual  certificate  as  evidence  of  his 
ownership.  3.  That  had  B.  acquired  merely  an  equity,  based  on 
his  contract,  the  legal  right  of  the  bank  to  assert  its  lien  was  lost 
by  its  own  laches,  and  the  enforcement  of  it  would,  under  the  cir- 
cumstances, operate  as  a  fraud.^ 

In  Scovill  V.  Thayer,2  the  following  principles  were  laid  down  :  — 

First.  As  a  general  rule,  corporations  can  have  and  exercise 
only  such  powers  as  are  expressly  conferred  on  them  by  the  act 
of  incorporation,  and  such  implied  powers  as  are  necessary  toll- 
able them  to  perform  their  prescribed  duties.^ 

Second.  A  corporation  has  no  implied  power  to  change  the 
amount  of  its  capital  as  prescribed  in  its  charter,  and  all  attempts 
to  do  so  are  void.*  The  attempt  to  increase  the  stock  of  the  com- 
pany beyond  the  limit  fixed  by  its  charter  being  ultra  vires,  the 


1  National  Bank  v.  Watsontown  Bank, 
105  U.  S.  217.  The  court  held  that  the 
clause  which  denies  to  the  stockholder  the 
privilege  of  making  a  transfer  of  his 
stock,  while  a  debtor,  until  his  debt  is 
discharged  or  secured  to  the  satisfaction 
of  the  directors,  does  not  forbid  the  bank 
to  waive  its  rights,  or  prevent  the  cnsliier 
from  acting  for  the  directors,  by  virtue  of 
an  express  oritnjjlied  authority.  In  this, 
as  in  other  matters  of  ordinary  busintiss, 
within  the  general  scope  of  his  otBcial 


duty,  he  is  their  appropriate  representa- 
tive.    Ibid,  at  p.  221. 

2  105  U.  S.  143. 

8  Fertilizing  Company  r.  Hvdi^  VA 
97  U.  S.  6.59  ;  Salomons  v.  'l-iiing,  1'2 
Beav.  339  ;  Eastern  Counties  Railw  uy  i'. 
Hawkes,  5  H.  L.  Gas.  331. 

♦  Mechanics'  Bank  v.  New  York  & 
N.  H.  R.  R.  Co.,  13  N.  Y.  599  ;  New 
York  &  N.  H.  11.  R.  Co.  v.  Soliuylci',  34 
N.  Y.  30;  Railway  Company  v.  Alleiton, 
18  Wall.  233  ;  Stace  &  Worth's  Cm, 
L.  R.  4  Oh.  Ap.  682,  n. 


PART  v.] 


CORPORATIONS. 


391 


increased  stock  itself  is  therefore  void.  It  confers  on  the  holders  no 
riglits,  and  subjects  them  to  no  liabilities.  The  contract  to  pay  for 
spurious  shares  is  without  consideration,  and  cannot  bo  enforced. 

Third.  Where  a  corporation  is  absolutely  without  power  to  in- 
crease its  stock  above  a  certain  limit,  the  acquiescence  of  the 
siiareholder  can  neither  give  it  validity,  nor  bind  him  or  the  cor- 
poration.* Tliercfore,  where  one  has  attended  by  proxy  the  mect- 
iiijrs  at  which  the  increase  of  the  stock  beyond  the  limit  imposed 
by  law  was  voted  for,  and  having  received  certificates  for  the 
stock  thus  voted  for,  and  after  such  increase  the  company,  by  its 
agents,  has  held  itself  out  as  possessing  a  capital  of  8400,000,  and 
iuvitoH  and  obtained  credit  on  the  faith  of  such  representations, 
he  is  not  estopped  from  setting  up  the  nullity  of  the  unauthorized 
stock  ;  the  case  differing  from  that  where  the  corporation  has  the 
power  to  issue  stock,  and  where  the  stockholders  have  been  held 
estopped  from  setting  up  informalities  in  such  issue. ^ 

Fourtii.  As  it  is  a  general  rule  that  a  holder  of  claims  against 
an  insolvent  corporation  cannot  set  them  off  against  his  liability 
tor  an  assessment  on  his  stock  in  the  corporation,  in  a  suit  by  an 
assignee  in  bankruptcy ,**  therefore  one  who  has  paid  calls  on  unau- 
thorized stock  cannot  set  off  such  i)ayments  against  calls  on  his 
authorized  stock. 

Fifth.  An  agreement  between  a  company  and  its  stockholders 
that  the  latter  shall  not  be  called  upon  to  pay  any  further  assess- 
ments on  their  stock,  is  valid  as  between  themselves,  and  in  Eng- 
land it  has  been  held  in  recent  cases  that  not  only  is  the  company, 
but  its  creditors  also  are  bound  by  such  a  contract.*  But  in  this 
country,  it  is  held  that  such  a  contract,  though  binding  on  the 
company,  is  a  fraud  in  law  on  its  creditors,  which  they  can  set 
aside,  —  that  when  their  rights  intervene,  and  their  claims  are  to 
be  satisfied,  the  stockholders  can  be  required  to  pay  their  stock  in 
full;S  the  reason  being  that  the  stock  subscribed  is  considered  in 
equity  a  trust  fund  for  the  payment  of  creditors.'' 

Sixth.  When  stock  is  subscribed  to  be  paid  upon  call  of  the 
company,  and  the  company  neglects  or  refuses  to  make  the  call, 
as  a  court  of  equity  will  do  what  it  is  the  duty  of  the  company  to 


'  Latliiop  V.  Kiieeland,  46  Barb.  432  ; 
Macklov'a  Case,  1  Ch.  D.  247  ;  Zabri-skie  v. 
Cli'vclutwl,  &c.  K.  R.  Co.  23  How.  381. 

•^  U|,toii  V.  Trihikock,  91  U.  S.  45  ; 
(ImW)  V.  Ui)ton,  95  U.  S.  665  ;  Pullman 
I'.  Upton,  96  U.  S.  328. 

'  Sawyer  v.  Hoag,  17  Wall.  610  ; 
SaDRor  V.  Upton,  91  U.  S.  56 ;  Scaminon 
V.  Kimball,  92  U.  S.  362  ;  County  of  Mor- 
gau  V.  Allen,  103  U.  S.  498. 

*  Waterhouse  v,  Jatniuson,    L.   R.   2 


H.  L.  (Sc. )  29  ;  Currie's  Case,  3  Do  O.  J. 
&S.  367;  Carlins;,  Hespeler,  and  WnUh's 
Casfis,  1  Ch.  1).  115. 

6  Sawyer  v.  Hoas;,  17  Wall.  610  ;  New 
Albany  v.  Btirki',  U  Wall.  96  ;  Burke  v. 
Smith,  16  Wall.  390. 

fi  Wood  V.  Dummer,  3  Ma.ss.  308  ; 
Mumma  v.  Potomac  Co.,  8  Pet.  2S1  ; 
Oi^ilvie  V.  Knox  Insurance  Co.,  22  How. 
387;  Sawyer  v.  Hoag,  supra. 


! 


1  ; 


f!f 


i  I 


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m 


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i:   '■ 


I' 


i; 


892 


COMMENTARIES  ON  SALES. 


[book  II. 


i  ' 


do,  the  court  may  itself  make  the  call,  if  tho  interests  of  the  cred- 
itors refjuiro  it.^  But,  under  such  circumstances,  before  there  is 
any  oljligation  upon  the  stockholder  to  pay  without  an  assessment 
and  call  by  the  company,  there  must  bo  some  order  of  a  court  of 
competent  jurisdiction,  or,  at  the  vci'y  least,  some  authorized  de- 
mand upon  him  for  payment.  And  the  statute  of  limitations  does 
not  begin  to  run  in  his  favor  until  such  order  or  demand.^ 

The  defendant  was  the  owner  of  eightj-five  shares  of  fully  paid- 
up  stock  in  the  National  Bank  of  Missouri.  On  May  10,  1877,  he 
sold  his  stock  to  a  broker,  to  whom  he  delivered  his  stock  cortili- 
cate,  indorsed  with  a  blank  power  of  attorney,  authorizing  the 
attorney,  whose  name  might  be  subsequently  inserted  by  tlie 
broker,  or  any  other  party  becoming  the  owner  of  tho  certilicute, 
to  transfer  it  on  the  books  of  the  bank  according  to  its  regula- 
tions. He  was  paid  by  the  broker,  who  withhe'd  from  the  doiend- 
ant  the  name  of  the  purchaser.  The  broker  was  representing  the 
president  of  the  bank,  one  of  the  bookkeepers  of  which  filled  iip 
the  power  of  attorney  with  his  own  name,  by  direction  of  the 
broker,  and  transferred  the  stock  on  the  stock  register  of  the  baniv 
in  tlie  president's  name,  as  trustee.  By  the  regulations  of  the 
bank,  stock  was  only  transferable  in  person  or  by  attorney.  The 
president  gave  his  own  check  to  the  broker  for  the  stock,  and  the 
check,  on  presentation,  was  paid  out  of  the  president's  own  funds. 
The  president  was  in  the  habit  of  dealing  in  the  stock,  and,  on 
May  29,  he  voted  on  the  stock  bought  from  the  defendant.  Tlie 
stock  in  the  other  bank  books  was  entered  as  bought  for  the  bank, 
and,  by  the  president's  directions,  he  was  credited  with  the  pur- 
chase-money, which  was  charged  to  the  bank.  Neither  the  de- 
fendant nor  the  broker  had  any  knowledge  of  this,  but  the  book- 
keeper, whose  name  was  filled  in  the  power  of  attorney,  had  such 
knowledge.  The  purchase  on  the  part  of  the  bank  was  illegal. 
The  bank  having  failed  on  June  20,  the  receiver  brought  an  action 
to  set  aside  the  purchase  of  the  stock,  and  to  have  the  defendant 
declared  a  stockliolder,  and  ordered  to  repay  the  money  which  he 
had  received,  on  the  ground  that  the  knowledge  of  the  attorney 
who  transferred  the  stock  was  the  knowledge  of  his  principal,  the 
defendant.  The  court  held  ^  that  the  validity  of  the  sale  and  ii:s 
completeness  had  to  be  determined  by  the  relation  which  the  con- 
tracting parties  at  the  time  openly  bore  to  each  other ;  that,  there 


1  Curry  v.  Woodward,  63  Ala.  371  ; 
Robinson  v.  Bank  of  Darien,  18  Ga.  65  ; 
Ward  r.  Griswoldville  Manuf.  Co.,  16 
Conn.  593. 

2  Van  Hook  v.  Whitlock,  3  Paige,  409  ; 
Salisbury  v.  Black's  Admstr.,  6  Har.  &  J. 


293  ;  Sinkler  v.  Turnpike  Co.,  3  Pa.  149 ; 
Walter  v.  Walter,  1  Whart.  2it2  ;  QuigS 
V.  Kittridge,  18  N.  H.  137  ;  Ninimo  i'. 
Walker,  14  La.  An.  581. 

«  Johnston  v.  Laflin,  103  U.  S.  800. 


PART   v.] 


CORPOHATIONS. 


898 


being  no  imputation  of  fraud,  the  validity  of  the  sale  could  not 
be  made  to  depend  upon  the  accident  of  the  immediate  purchaser, 
or  of  the  party  to  whom  he  might  transfer  the  ccrtiiicate,  employ- 
ing, to  make  the  formal  transfer,  one  who  was  acquainted  with 
the  secret  interests  of  others  in  tlie  shares.  Of  course  the  result 
would  have  been  otherwise  if  the  sale  had  been  made  by  the  de- 
fendant merely  to  evade  his  just  responsibility  as  a  stockholder. 
Of  to  work  a  fraud  upon  other  stockholders  or  creditors  of  tho 
bank.' 

The  agent  of  an  insurance  company  applied  to  the  defendant  to 
subscribe  for  stock.  He  assented,  and  executed  a  bond,  acknowl- 
edging the  receipt  of  ten  shares  of  the  stock,  in  consideration  of 
wliich  be  bound  himself  to  pay  the  price  of  the  stock  in  instalments, 
twcnty-dve  per  cent  '•  upon  receipt  of  stock  certificate,"  and  tho 
balance  at  later  dates.  At  the  time  of  executing  the  bond,  he 
paid  twenty-live  dollars  on  account  of  the  stock.  The  defendant's 
name  was  entered  on  the  books  as  a  stockholder,  and  published  in 
their  publications  as  one  of  the  stockholders  ;  the  defendant  having 
no  knowledge  of  the  publication.  Scm  after,  in  consequence  of 
losses  by  fire,  the  comjjany  became  bankrupt,  the  defendant  hav- 
ing paid  nothing  further,  and  no  stock  certificate  having  been 
delivered  to  him.  In  an  action  by  the  assignee  in  bankruptcy, 
the  judges  of  the  Circuit  Court  were  equally  divided  as  to  whether 
the  delivery  of  a  stock-certificate  was  necessary  to  make  the  de- 
fendant liable.  The  United  States  Supreme  Court  held  ^  that  his 
receipt  for  the  stock  was  an  acknowledgment,  so  far  as  he  was 
concerned,  that  he  had  become  a  stockholder,  and,  after  an  accept- 
ance by  the  company,  his  liability  was  fixed  whether  any  publica- 
tion was  made  or  not.  The  publication  was  only  important  as  a 
means  of  showing  that  his  subscription  made  to  an  agent  had  been 
accepted  and  ratified  by  the  company.     The  entries  on  the  book 


^  Tlie  transfer  of  shares  in  the  national 
lianks  is  not  governed  by  different  rules 
fioni  those  wliieh  are  ordinarily  applied 
to  the  transfer  of  shares  in  other  corpo- 
rate bodies.  Jolinston  v.  Laflin,  103  U.  S. 
804.  The  entry  of  tho  transaetion  on  the 
hooks  of  the  bank  where  stock  is  sold,  is 
required,  not  for  the  translation  of  the 
title,  but  for  the  protection  of  the  parties 
and  others  dealing  with  the  bank,  and 
to  enable  it  to  know  who  are  its  stock- 
holders, entitled  to  vote  at  their  meetings 
and  receive  dividends  when  declared.  It 
is  necessary  to  protect  the  seller  against 
subsequent  liability  as  a  stockholder,  and 
perhii]is  also  to  jirotect  the  purchaser 
against  proceedings  of  the  seller's  credit- 
ors.    Purchasers  and  creditors,   in  the 


absence  of  other  knowledge,  are  only 
bound  to  look  to  the  books  of  registry  of 
the  bank.  But,  as  between  ilie  parties  to 
a  sale,  it  is  enough  that  the  certificate  is 
delivered  with  authority  to  the  purchaser, 
or  any  one  he  may  name,  to  transfer  it  on 
the  books,  and  the  jirice  is  paid.  If  a 
subsequent  transfer  of  the  certificate  be 
refused  by  the  bank,  it  can  be  compelled 
at  the  instance  of  either  of  the  parties. 
Bank  v.  Lanier,  11  Wall.  369;  Webster 
V.  Upton,  91  U.  S.  65 ;  Bank  of  Utica  v. 
Smalley,  2  Cow.  770  ;  Gilbert  v.  Man- 
chester Iron  Co.,  11  Wend.  627  ;  Com- 
mercial Bank  of  Buffalo  v.  Kortright,  22 
Wend.  348  ;  Sargeant  v.  Franklin  Ins. 
Co     8  Pick.  90. 

2  Hawley'c.  Upton,  102  U.  S.  314. 


'■i 


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894 


COMMENTARIES  ON   SALES. 


[book  II. 


had  the  same  ciTuct.  And  although  tho  company  could  not  have 
recovered  against  hira  without  a  tender  of  the  certificate,  the  as- 
Hignec,  as  representing  the  creditors,  had  a  right  to  recover  from 
him  on  his  general  liability  to  pay  for  his  stock,  which,  by  lijs 
subscription,  ho  agreed  he  would  pay.* 

Under  tho  Bank  Act  of  1804,''*  the  stockholders  are  lialjlo  to 
the  e.vtcnt  of  the  amount  of  their  stock  tliciein,  at  tho  par  value 
thereof,  in  addition  to  the  amount  invested  in  such  shares,  but 
they  are  responsible  equally  and  ratably,  and  not  for  one  an»thcr. 
Hence,  solvent  stockholders  are  not  liable  for  deficiencies  caused 
by  the  insolvency  of  other  stockholders.'*  This  rule  has  been 
applied  under  statutes  not  containing  such  words  as  we  have 
italicized.* 


1  III  delivering  judgment  tho  court 
say:  "It  cannot  bo  doubted  that  one 
who  has  become  hound  as  a  subscriber  to 
tho  capital  stock  of  a  corporation  must 
pay  his  subscription  if  required  to  meet 
the  oblij^ations  of  the  corporation.  A  cer- 
tificate in  his  favor  is  not  necessary  to 
make  him  a  subscriber.  All  that  ne(;d  be 
done,  so  far  as  I'reditors  are  concerned,  is 
that  the  subscriber  shall  have  bound  him- 
self to  become  a  contributor  to  the  fund 
wl'.ich  tho  capital  stock  of  tho  corporation 
represents.  If  such  an  obligation  exists, 
tho  courts  can  enforce  tho  contributiou 
when  reiiuired.  After  having  bound  him- 
self to  contribute,  he  cannot  be  discharged 
from  tho  obligaticn  he  has  assumed  until 
the  contribution  has  actually  been  made, 
or  tho  obligation  in  some  lawful  way 
extinguished."  Upton  v.  Trebilcock,  91 
U.  S.  45;  Webster  v.  Upton,  91  U.  S.  65. 
This  is  a  very  different  case  from  those  we 
have  considered  previously  in  this  Part 
(see  ante,  p.  352  ct  scq.),  where  a  party  was 
simply  an  applicant  for  shares.  In  this 
case  there  is  the  express  acknowledgment 
of  the  receipt  of  a  definite  number  of 
shares  ;  a  payment  is  made  on  account  of 
them,  and  a  written  agreement  to  pay  the 
balance  for  tho  specified  number  of  shares 
is  signed  by  the  party,  and  delivered  by 
him  to  the  agent  of  the  company.  The 
court,  on  these  facts,  say  :  "The  paper  he 
signed  was  delivered  to  the  comjjany  by 
the  agent  who  got  it.  That  it  was  ac- 
cepted by  the  company  as  a  subscription 
[not  as  an  application,  maik.  AuTH.]  is 
shown  conclusively  by  the  fact  that  his 
name  was  entered  on  the  books  as  a  stock- 
holder, and  publication  made  accordingly. 
It  nuitters  not  that  he  had  no  knowledge 
of  such  a  publicatio!!.  His  receipt  for  the 
stock  was  an  acknowledgment,  as  far  as  he 
was  concerned,  tlint  he  had  become  a  stock- 
holder, and  after  an  acceptance  by  the 


company  his  liability  was  fixed,  whether 
any  publication  was  made  or  not.  Tlit 
publication  is  only  important  as  u  iiiuiiii:! 
of  showing  that  his  subscrintion  uimle  to 
an  agent  liad  been  accepted  and  ratitieii 
by  the  com]mny.  The  entries  on  the  books 
had  tiie  same  effect.  The  publication  only 
made  it  more  notorious.  The  ultiiimte  fact 
to  be  established  is,  that  a  subscription 
had  not  only  been  made  by  Hawlcy,  but 
accepted  by  the  company.  '  H:  v  v. 
Upton,  102  U.  S.  314.  The  dilUreiiM 
between  this  class  of  cases,  where  tlii' 
party  subscribes  for  shares,  and  binds 
him.self  definitely  by  his  subscription  for 
the  specified  number,  and  that  where  a 
mere  application  is  made  for  shares,  ns  in 
the  other  class  of  cases,  is  as  marked  in 
its  legal  effect  as  is  the  case  where  A. 
writes  B.,  "  Will  you  sell  me  from  500  to 
1000  barrels  of  XX  flour  at  $5  ]ier  Imrrel, 
deliverable  on  board  of  ship  at  your  port?" 
in  which  there  is  no  contract  on  the  part 
even  of  B.  (much  less  of  A.)  until  he  eoni- 
municates  a  definite  reply  to  A. ;  from  the 
case  where  A.  writes  B.,  "Ship  ine  1000 
barrels  of  XX  flour,  at  $5  per  biirrel, 
f.  o.  b.,  at  your  port,  and  draw  on  ine  at 
sight,"  in  which  A.  is  bound,  without  any 
communication,  on  the  ordered  flour  being 
so  shipped.  It  was  in  the  failure  to  notii'e 
this  distinction  which  led  to  such  strange 
confusion  in  the  Canadian  courts  in  deal- 
ing with  the  case  of  Nnsmith  v.  Manning, 
5  S.  C.  of  Can.  R.  417,  which  we  have 
examined,  supra,  p.  357  et  scq. 

2  Rev.  Stats.  §§  5,  151. 

8  United  States  v.  Knox,  102  U.  S. 
422  ;  Crease  v.  Babcock,  10  .Met.  525. 

♦  Crease  v.  Babcock,  supra ;  .Vttwood 
V.  R.  I.  Ag.  Bank,  1  R.  I.  276  ;  In  re 
HolUster  Bank,  27  N.  Y.  393;  Adkins  v. 
Thornton,  19  Ga.  325;  Robinson  v.  Lane, 
lb.  337;  Wiswell  v.  Starr,  48  Me.  40L 


I'AUT  v.] 


CORPORATIONS. 


895 


Stock  in  a  bank  was  pledged  to  the  plaintiffs  to  secure  the  pi^y- 
inent  of  a  note,  with  power  to  sell  the  stock  in  event  of  the  note 
not  boiiij^  paid.  The  note  not  having  been  paid,  the  plaintiffs  sold 
the  stock,  which  the  casliier  of  the  bank  refused  to  transfer  on  the 
ground  that  the  bank  had  a  lien  on  the  stock  for  the  indebtedness 
of  tlio  pledgor.  The  bank  having  failed,  tiio  court  held  that,  the 
bank  not  having  the  lien  which  they  claimed,  the  act  of  the  cash- 
ier wiiH  the  act  of  the  bank,  and  that  the  plaintiffs  had  a  right  to 
recover  against  the  receivers  of  the  bank.* 

By  statute  in  Georgia,  an  unlimited  liability  was  imposed  on 
stocldiolders  in  banks  for  the  redemption  of  all  bills  and  notes  in 
proportion  to  the  amount  held.  In  Mills  v.  Seott,^  it  was  held 
that  though  ordinarily  the  proceedings  to  enforce  this  liability 
against  individuals  was  in  equity,  yet  as  the  actual  amount  of  the 
outstanding  bills  and  notes  was  known,  is  well  as  the  proportion 
of  the  defendant's  stock,  which  was  ouc-twentieth  of  the  whole 
stock,  debt  at  law  would  lie  against  him,  as  his  indebtedness  was 
thus  (ixed,  and  recovery  could  bo  t  id  against  him  at  law  for  one- 
twentieth  of  the  amount  of  the  bills  and  notes. 

Suits  may  be  maintained  upon  unpnid  coupons  in  advance  of  the 
maturity  of  the  principal  debt,  and  witliout  ])roducing  the  bonds, 
and  the  holder  of  such  coupons  is  entitled  to  recover  interest 
thereon  from  their  maturity .^  And,  under  usual  statutes  of  lim- 
itations, such  as  that  of  Iowa,  the  right  of  action  runs  as  to  the 
coupons  from  their  maturity,  which  is  the  period  at  which  the 
riirlit  of  action  on  them  accrues  ;  and  this  rule  is  not  affected  bv 
the  fact  that  the  coupons  have  not  been  separated  from  the  bonds.* 

An  agreement  by  one  association  to  pay  the  bonds  of  another 
(Iocs  not  give  the  holder  of  such  bonds  the  riglit  to  maintain  an 
action  in  his  own  name,  for  the  amount  of  the  bonds,  there  being 
no  privity  of  contract  between  the  bondholders  and  the  associa- 
tion which  agreed  to  pay  the  bonds.^ 

In  National  Bank  v.  Case,"  the  court  re-affirmed  their  holding 
in  Pulhnan  v.  Upton,"  that  one  to  whom  stock  has  been  trans- 
ferred in  pledge  or  as  collateral  security  for  money  loaned,  and 


1  Case  V.  Bank,  100  U.  S.  446;  Minor 
r.  Michanics'  Hank  of  Alexandria,  1  Peters, 
46;  Wild  V.  Bank,  3  Mass.  505;  Smith  v. 
Northampton  Bank,  4  Cusli.  1,  11;  Lloyd 
p.The  Wist  Branch  Bank,  15  Pa.  St. 
172  :  The  Bank  of  Vergennes  v.  Warren, 
7  Hill,  yi;  Franklin  Bank  v.  Steward,  37 
Me.  519,  522  ;  The  Commercial  !?ank  of 
Buiralo  V.  Kortright,  22  Wend.  348,  350  ; 
Kortright  v.  The  Commercial  Bank  of 
Buffalo,  20  Wend.  91. 

»  99  U.  S.  2,5. 

'  Commis.sionors  of  Knox  County  v. 


Aspinwall,  21  How.  539;  Gelpcke  v.  City 
of  Dubuque,  1  Wall.  175  ;  The  City  i-. 
Lamson,  9  Wall.  477;  City  of  Le.\ington 
V.  Butler,  14  Wall.  282  ;  Clark  v.  lowu 
City,  20  Wall.  583 ;  Town  of  Genoa  v. 
Woodruff,  92  U.  S.  502. 

♦  Amy  V.  Dubuque,  98  U.  S,  470 ; 
Clark  V.  Iowa  City,  20  Wall.  583. 

6  National  Bank  v.  Grand  Lodge,  98 
U  a.  123. 

-  99  U.  S.  628. 

»  96  U.  S.  228. 


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396 


COMMENTARIES  ON  SALES. 


[book  II. 


who  appears  on  the  books  of  the  corporation  as  the  owner  of  the 
stock,  is  liable  as  a  stockholder  for  the  benefit  of  creditors  ;  ^  tlie 
reasons  being,  (1)  That  he  is  estopped  from  denying  his  liability 
by  voluntarily  holding  himself  out  to  the  public  as  the  owner  of 
the  stock,  and  his  denial  of  ownership  is  inconsistent  witli  tlie 
representations  he  has  made.  (2)  That  by  taking  the  legal  title 
he  has  released  the  former  owner ;  and  (3)  That  after  having  taken 
the  apparent  ownership,  and  thus  become  entitled  to  receive  divi- 
dends, vote  at  elections,  and  enjoy  all  the  privileges  of  ownership, 
it  would  be  inequitable  to  allow  him  to  refuse  the  responsibilities 
of  a  stockholder.  The  court  further  held  that  the  fact  of  a  trans- 
fer of  the  stock  having  been  made  by  the  bank  when  the  corpora- 
tion of  which  the  stock  was  held  was  in  a  failing  condition,  to  a 
third  party,  who  was  bound  to  i*e-transfer  it  when  required  to  do 
so,  Avas  merely  colorable ;  made  to  escape  responsibility,  and  void.'- 
Bonds  were  partially  prepared  for  issue  by  a  railway  company 
in  Louisiana.  They  promised  to  pay  .£225  sterling  in  London,  or 
$1000  in  New  York,  to  the  bearer,  the  president  of  the  company  to 
fix  the  place  of  payment  by  indorsement.  This  was  never  done, 
nor  were  the  bonds  e^er  issued,  but  were  seized  and  carried  oHf 
during  the  war.  After  several  of  the  coupons  which  were  attaclied 
were  overdue,  the  bonds  were  purchased  in  New  York  for  a  very 
small  consideration.  On  appeal  by  the  holders,  after  an  adverse 
decision  in  the  Circuit  Court,  the  United  States  Supreme  Court 
held,3  that  the  appellants  had  abundant  cause  to  question  tlie  in- 
tegrity of  the  bonds  ;  that  they  were  affected  with  notice  of  tlieir 
invalidity,  and  could  not  be  allowed  to  sustain  the  position  of 
bond  fide  holders  without  notice.  The  presence  of  the  past-due 
and  unpaid  coupons  was  itself  an  evidence  of  dishonor,  suHicicnt 
to  put  the  purchasers  on  inquiry.  The  imperfection  as  to  the 
place  of  payment  was  another  strong  evidence  of  want  of  gen- 
u'lioncss.  While,  generally,  it  is  not  necessary  for  the  validity 
of  a  bond  that  it  should  name  a  place  of  payment,  the  bonds 
in  this  case  expressly  declared  that  they  were  to  be  payable  at  the 
place  which  should  be  determined  by  the  president's  indorsiMucnt, 
and  that  the  sum  payable,  whether  J225  sterling  or  ilOOO,  should 
depend  on  that  indorsement,  and  yet  no  indorsement  appeared 


»  Adderly  v.  Storm,  6  Hill,  (524;  Roose- 
velt V.  Brown,  11  N.  Y.  148  ;  Holyoke 
Bank  v.  Buriiham,  H  Cash.  183;  Ma- 
gnider  v.  Colston,  44  Md.  349;  Crease  v. 
Babco(;k,  10  Mote.  525;  Wheelock  w.  Kost, 
77  III.  206 ;  Matter  of  the  Empire  City 
Bank,  18  N.  Y.  199;  Hale  v.  Walker,  31 
Iowa,  344. 

3  Williams's  Case,  L.  R.  9  Eq.  225.  n.; 


Payne's  Case,  lb.  223 ;  Kintrca's  Case, 
L.  R.  5  Ch.  95 ;  Chinnock's  Casi',  .Tclins. 
(Eng.)  714;  Hyam's  Case,  1  Do  C.  V.& 
J.  75;  Budd's  Case,  3  Dc  C.  F.  &  J.  206; 
Nathan  v.  Whitlock,  9  P«i«e,  1:V2;  Mc- 
Claren  v.  Franciscus,  43  Mo.  4r)2  ;  Mnn-y 
V.  Clark,  17  Mass.  329;  Johnson  i-.  Laflin, 
6  Cent.  Law  Jour.  131. 

«  Pai-sons  V.  Jackson,  99  U.  S.  134. 


99  U.  S.  134. 


PART  v.] 


CORPORATIONS. 


397 


thereon.  While  this  defect  might  not  have  invalidated  the  bonds 
if  they  had  in  fact  been  issued  by  the  company,  and  the  amount 
had  been  certain,^  yet  it  was  a  pregnant  warning  to  the  purchas- 
ers to  inquire  whether  they  liad  been  issued  or  not.  These  facts, 
taken  in  connection  with  tlie  price  at  which  the  bonds  were  of- 
fered, were  held  abundantly  sufficient  to  affect  the  purchasers 
with  notice  of  invalidity  in  their  issue.  The  circumstances  went 
farther  than  merely  to  cast  a  shade  of  suspicion  on  the  bonds. 
They  were  so  pointed  and  emphatic  as  to  be  primd  facie  inconsist- 
ent with  any  other  view  than  that  there  was  something  wrong  in 
the  titlc.2 


»  See  Aii^'le  v.  N.  W.  Life  Ins.  Co.,  92 
U.  S.  330;  Bank  of  Pittsburg  v.  Nt-al,  22 
How.  'Jti  ;  Kedlich  v.  Doll,  .54  N.  Y.  234; 
(lairanl  v.  Haddan,  67  Pa.  82;  Montague 
V.  I'erkiiis,  22  Eng.  L.  &  Eq.  516;  Fleck- 
iier  V.  I'liited  States  Bank,  8  Wheat.  338; 
Mitchell  v.  Culver,  7  Cow.  336;  Meclianics' 
Bank  v.  Schuyler,  7  Cow.  337;  Boyd  v. 
Brotherson,  10  Wend.  93 ;  Flint  v.  Craig, 
■W  Barb.  319;  Michigan  Ins.  Co.  o.  Leav- 
enwoitli,  30  Vt.  11.  In  Redlich  o.  Doll, 
54  N'.  V.  234,  the  maker  of  a  note  left  a 
blank  alter  the  word  "at,"  which  was 
filleil  uji  liy  the  holder  with  the  name  of 
a  bank  and  negotiated.  The  court  held 
that  the  insertion  of  the  place  of  payment 
in  the  note  did  not  avoid  it  in  the  hands 
of  a  ban  It  fide  hold(;r  for  value,  upon  the 
lirinei|ile  that  where  one  of  two  innocent 
liarties  must  siiH'er  by  the  fraud  or  wrong 
of  a  third  person,  the  one  who  put  it  in 
the  power  of  such  third  person  to  commit 
the  fraud  or  wrong  must  bear  the  loss. 
In  .Mitehell  v.  Culver,  7  Cow.  336,  a  note 
was  made  iind  indorsed  on  November  27, 
payable  in  sixty  days,  the  note  as  to  date 
iti'inr;  blank.  By  direction  of  the  maker, 
the  plaiiitilf  iilled  the  blank  with  the  5th 
.Novenibi  r.  It  was  held,  in  a  suit  against 
the  indi)rser,  that  where  the  indorser  of  a 
note  commits  it  to  the  maker  with  the 
ilate  in  blank,  the  note  carries  on  the  face 
of  it  an  iin]ilied  authority  to  till  up  the 
blank.  See  Page  V.  Morrell,  3  Koyes, 
117;  Van  Diizer  v.  Howe,  21  N.  Y.  531; 
Vallett  V.  I'arker,  6  Wend.  616  ;  Kitchen 
''.  I'laee,  41  tJurb.  465.  In  Young  v.  Oroto, 
4  Bing,  'J.-.y,  a  husband  left  blank  checks 
with  his  will',  signed  by  himself.  In  (111- 
inj?  up  one  with  "  tifty  pounds,"  she  left 
a  space  before  the  word  "tifty,"  which 
was  filled  11),  In-  hor  husband's  clerk  with 
tlte  words  "tjiree  hundred  and."  The 
lianker  having  paid  the  whole  amount,  it 
was  held  that  the  loss  must  fall  upon  th3 
drawer,  on  the  ground  of  his  negligence. 
A  party  purchasing  negotiable  paper  in 
open  market,  without  reason  for  susfieet- 
"Dg  fraud,  and  without  actual  notice  or 


knowledge  of  any  defects  or  irregularities 
in  the  issue,  as  a  bond  Jidc  ])urcliaser  for 
value,  takes  a  good  title.  Murray  v.  Lard- 
ner,  2  Wall.  110;  County  of  Pay  c.  Van- 
scycle,  96  U.  S.  675;  Goodman  !>.  Simonds, 
20  How.  343  ;  Galveston  U.  It.  v.  Cow- 
drey,  11  Wall.  459;  Hotclikiss  i'.  National 
Bank,  21  Wall.  354;  Cromwell  v.  County 
of  Sac,  96  IJ.  S.  51;  San  Antonio  v.  Me- 
haffy,  III.  312  ;  Henderson  v,  Anderson, 
3  How.  73  ;  Morgan  i".  Pailroad  Co.,  96 
U.  S.  716;  Duncan  v.  Scott,  1  Camp. 
100  ;  Marston  i;.  Allen,  8  M.  &  W.  494; 
Harvey  v.  Towers,  6  Ex.  656;  Putnam  v. 
Sullivan,  4  Mass.  45  ;  Ingham  v.  Prim- 
ro.se,  7  C.  B.  K.  a.  82,  85;  Awde  v.  Dixon, 
6  Ex.  869;  Stagg  v.  Elliott,  12  C.  B.  N.  s. 
373;  Pex  v.  Hales,  17  How.  St.  Tr.  161; 
Swan  V.  North  British,  &c.  Co.,  2  11.  &  C. 
at  p.  184,  per  Byles,  J. 

•■*  See  Andrews  v.  Pond,  13  Pet.  65  ; 
Fowler  v.  Brantley,  14  Pet.  318.  And 
in  some  cases  where  negotiable  ]iaper  has 
been  obtained  fraudulently,  without  any 
negligence  on  the  jjait  of  the  person  de- 
frauded, it  has  been  hidd  void  even  in 
the  iiands  of  a  bond  fide  pundiaser,  with- 
out notice  or  knowledge,  and  without  any 
reason  apparent  to  cause  him  to  suspect 
the  bona  ftden  of  the  transaction.  'Ihus 
in  Foster  v.  Mackinnon,  L.  P.  4  C.  P. 
704,  the  defendant  was  induced  to  put  his 
name  upon  the  back  of  a  bill  of  exchange 
by  the  fraudulent  representation  of  the 
acceptor  that  he  was  signing  a  g\iarantee. 
In  an  action  against  him  as  indorser,  at 
the  suit  of  a  b(md  Jidc.  holder  for  value, 
the  jury  were  directed  that  "if  the  de- 
fendant's signature  was  obtained  upon  a 
fraudulent  representation  that  it  was  a 
guarantee,  and  the  defendant  signed  it 
without  knowledge  that  it  was  a  bill,  and 
under  the  belief  that  it  was  a  gunrantee, 
and  if  he  was  not  guilty  of  any  iH'gligence 
in  so  signing  the  paper,  he  was  entitled  to 
the  verdict.  A  verdict  having  been  ren- 
dered for  the  defendant,  this  was  hebl  a 
proper  direction.  The  facts  in  the  case 
aro  £)cculiar.    The  defendant  was  a  gentle- 


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398 


COMMENTARIES  ON  SALES. 


[book  II. 


While  it  is  undoubtedly  true  that  it  is  essential  to  a  sale  that 
both  parties  should  consent  to  it,  yet  the  intent  to  sell,  or  the  as- 


iiian  far  advanced  in  years.  The  secretary 
of  a  company  (wliicli  was  en<;aged  in 
building  a  railway  near  tlie  defendant's 
property)  obtaineil  a  guarantee  from  the 
defendant  for  .£3000,  in  order  to  enable 
the  company  to  obtain  an  advance  of 
money  from  their  bankers,  which  was 
duly  paiii  without  any  liability  resulting 
to  the  defendant.  Subs{'(|uently  the  sec- 
retary took  a  bill  of  exchange  lor  £3000, 
which  was  drawn  and  indorsed  by  one 
Cooper,  and  asked  tlie  defendant  to  put 
his  name  on  it,  telling  him  it  was  a  guar- 
antee; whereupon  the  defendant,  believing 
that  he  was  signing  a  guarantee  similar  to 
that  which  lie  had  before  given,  put  his 
signature  on  the  back  of  the  bill,  imme- 
diately after  that  of  Cooper.  The  defend- 
ant was  only  shown  the  back  of  the  paper. 
It  was,  however,  in  the  ordinary  shape  of 
a  bill  of  exchange,  and  bore  a  stamp,  the 
impress  of  wliidi  was  visible  through  the 
paper.  The  court,  in  deciding  the  case, 
said  :  — 

"  it  seems  plain  on  principle  and  on  au- 
thority that  if  a  blind  man,  or  a  man  who 
cannot  read,  or  who  for  some  reason  (not 
implying  negligence)  forbears  to  read,  has 
a  written  contract  falsely  read  over  to  him, 
the  reader  misreading  to  such  a  degree  that 
the  written  contract  is  of  a  nature  alto- 
gether dilfcrent  from  the  contract  pre- 
tended to  be  read  from  the  paper  which 
the  bliiKl  or  illiterate  man  afterwards  signs, 
then,  at  least  if  there  be  no  negligence,  the 
signature  so  obtained  is  of  no  force.  And 
it  is  invalid  not  merely  on  the  ground  of 
fraud,  wluue  fraud  exists,  but  on  the 
ground  that  the  mind  of  the  signer  did 
not  accompany  the  signature ;  in  other 
words,  that  he  never  intended  to  sign, 
and,  therefore,  in  contemplation  of  law 
never  did  sign,  the  contract  to  which  his 
name  is  ai)])ended."  Thoroiighood's  Case, 
2  Co.  11.  !)  b;  Keilw.  70,  pi.  (5;  Com.  Dig. 
Fait,  B.  2  ;  Kdwards  v.  Brown,  1  C.  &  J. 
312,  aTid  Swan  v.  North  British,  &c.  Co., 
2  H.  &  C.  175,  were  cited  to  show  that 
this  principle  applied  to  deeds  ;  and  the 
court  contiiuuHl :  "  But  the  principle  is 
equally  api)licable  to  other  written  con- 
tracts. Nevertheless,  this  principle,  wheu 
applied  to  m^gotiable  instruments,  must 
be  and  is  limited  in  its  application.  These 
instruments  are  not  only  assignable,  but 
they  foim  part  of  the  cunency  of  the  coun- 
try. A  iiualification  of  the  general  rule  is 
necessary  to  protect  innocent  transferees 
for  value.  If,  therefore,  a  man  write  his 
name  across  the  back  of  a  blank  bill 
stamp,  and  part  with  it,  and  the  paper  is 
afterwards  impro{>erly  filled  up,  he  is  lia- 


ble as  indorser.  If  he  write  it  across  the 
face  of  the  bill,  lie  is  liable  as  acci-ptur 
when  the  instrument  has  once  passed  into 
the  hands  of  an  innocent  indorsee  for  value 
before  maturity,  and  liable  to  the  extent 
of  any  sum  which  the  stamp  will  cover. 
In  these  cases,  however,  the  party  sign- 
ing knows  what  he  is  doing  ;  tlie  iiuluiser 
intends  to  indorse,  and  tlie  accei>tor  in- 
tended to  accept,  a  bill  of  exchanf,'c  to  !« 
thereafter  filled  up,  leaving  the  amount,  the 
date,  the  maturity,  and  the  other  ])arti('s 
to  the  bill  undetermined.  But  in  the  case 
now  under  consideration  the  dct't'tulant, 
according  to  the  evidence,  if  believwl,  anil 
the  finding  of  the  jury,  never  iiitemli'il  to 
indorse  a  bill  of  exchange  at  all,  imt  in- 
tended to  sign  a  contract  of  an  cntin'iy 
different  nature.  It  was  not  his  dosign, 
and  if  he  were  guilty  of  no  negligence  it 
was  not  even  his  fault,  that  the  iiistnimi'nt 
he  signed  turned  out  to  be  a  bill  of  ex- 
change. It  was  as  if  he  had  written  his 
name  on  a  sheet  of  pajK'r  for  the  piirfio.se 
of  franking  a  letter,  or  in  a  lady's  allmni, 
or  on  an  order  for  admission  to  tlie  Teinplu 
Church,  or  on  the  lly-leaf  of  a  book,  ami 
there  had  already  been  without  his  i<novvl- 
edge  a  bill  of  exchange  or  a  pioinissory 
note  payable  to  order  inscribed  on  the 
other  side  of  the  paper.  To  make  tin) 
case  clearer,  suppose  the  bill  or  note  on 
the  other  side  of  the  paper  in  eaeh  o( 
these  cases  to  be  written  at  a  time  subse- 
quent to  the  signature,  then  the  fraudulent 
misapplication  of  that  genuine  sii^nature 
to  a  different  purpose  would  have  Iweii  a 
counterfeit  alteration  of  a  writing  with  in- 
tent to  defraud,  and  would  tliorciore  have 
amounted  to  a  forgery.  In  that  ease  the 
signer  would  not  have  been  bound  by  his 
signature,  for  two  reasons  :  first,  that  he 
never  in  fact  signed  the  writing  deelared 
on  ;  and,  secondly,  that  he  never  intended 
to  sign  any  such  contract.  In  tin;  |iiesent 
case  the  first  reason  does  not  a|>i)ly,  but 
the  second  reason  does  ajiply.  The  de- 
fendant never  intended  to  sign  tliat  con- 
tract or  any  such  contract.  IL;  never 
intended  to  put  his  name  to  any  instru- 
ment that  then  was  or  therealiiT  might 
become  negotiable.  He  was  deceived,  not 
merely  as  to  the  legal  clftict,  but  iis  to  the 
actual  contents  of  the  instrument." 

This  ease  is  a  breaking  in,  but  wo  think 
a  very  sound  one,  on  the  rule  laid  down 
by  the  same  judge  (Byles,  J.)  who  deliv- 
ered the  judgment  in  Foster  v.  Mickin- 
non,  L,  R.  4  C.  P.  704,  in  his  judgment 
in  Swan  v.  North  British,  &c.  Co.,  i  H.  & 
C.  Bt  p.  184,  where  he  says  :  "  The  object 
of  the  law-merchant  as  to  bills  and  notes 


PART  v.] 


CORPORATIONS. 


899 


sent  of  the  former  owner  to  a  sale,  need  not  be  expressly  given. 
It  may  be  interred  from  the  nature  of  the  transaction.     Thus, 


made  or  become  payable  to  bearer  is  to 
secure  their  circuliitioii  as  money  ;  there- 
fore, honest  acquisition  confers  title.  To 
this  despotic  but  necessary  principle  the 
ordinary  rules  of  the  common  law  are  made 
to  bend.  The  misapplication  of  a  genuine 
signature  written  across  a  slip  of  stumped 
paper  (which  transaction,  being  a  forgery, 
would  in  ordinary  cases  convey  no  title) 
may  give  a  good  title  to  any  sum  fraudu- 
lently inscribed,  within  the  limits  of  the 
stamp,  and  in  America,  where  there  are 
no  stamp-laws,  to  any  sum  whatever. 
Negligence  in  the  maker  of  an  instrument 
payabh'  to  bearer  maki'?  no  dilference  in 
his  liability  to  an  honest  holder  for  value  ; 
the  instrument  may  be  lost  by  the  maker 
witliout  his  negligence,  or  stolen  from  him, 
still  he  must  pay."  Hyles,  J.,  qualified 
this  by  saying:  "  If  that  be  right  it  can 
only  be  with  reference  to  the  case  of  a 
complete  instrument ;  it  can  hardly  be 
applicable  to  a  case  where  a  man's  signa- 
ture has  been  obtiiinetl  by  a  fraudulent 
representation  to  a  document  which  he 
never  inten<lcd  to  sign."  Foster  v.  Mac- 
kinnon,  L.  K.  4  C.  P.  at  p.  709.  Suppose 
a  clerk  in  handing  a  letter  for  a  merchant 
to  sign  had  fraudulently  inserted  a  blank 
sheet  of  paper  under  the  letter,  with  a 
manifold-letter  sheet  intervening,  so  as  to 
obtain  the  merchant's  signature  on  the 
blank  shiet,  and  then  were  to  write  a 
promissory  note  above  the  blank  signa- 
ture, this  clearly  would  be  a  case  where 
the  signature  would  no  more  bind  the 
merchant  than  though  the  signature  were 
not  his  at  all,  but  was  a  forgery  in  fact,  as 
it  would  be,  for  criminal  purposes  at  least, 
in  law.  Tills  would  clearly  come  within 
the  exception  admitted  by  Parsons,  C.  J., 
in  Putnam  v.  Sullivan,  4  Mass.  at  p.  54, 
where  ho  says:  "It  is  further  objected 
that  if  the  writing  of  this  note  under 
these  circumstances  is  not  a  forgei'y,  yet 
it  is  such  a  fraud  as  will  discharge  the 
inilorsers  against  an  innocent  indorsee. 
The  counsel  for  the  defendants  agree  that 
generally  an  indorsement  obtained  by 
traud  shall  hold  the  indorsers  according 
to  the  terms  of  it ;  but  they  make  a  dis- 
tinction between  the  case;-  where  the  in- 
ilorser  through  fraudulent  pretences  has 
Ix'cn  induced  to  inilorse  the  note  he  is 
called  on  to  pav,  and  where  he  never  in- 
tended to  indorse  a  note  of  that  descrip- 
tion, hut  a  dilPerent  note,  and  for  a  differ- 
ent purpose.  Perhaps  there  may  be  cases 
in  which  this  distinction  ought  to  prevail ; 
M  if  a  blind  man  had  a  note  falsely  and 
fraudulently  read  to  him,  and  he  indorsed 
It,  supposing  it  to  be  the  note  read  to  him. 


But  we  are  .satisfied  that  an  indorser  can- 
not avail  himself  of  t.ds  distinction  but  in 
cases  where  he  is  not  chargeable  with  any 
laches  or  neglect  or  misplaced  confidence 
in  others."  In  Nance  v.  Lary,  5  Ala.  370, 
the  defendant  signed  a  paper  with  the  in- 
tention that  a  bond  should  be  written  on 
it.  This  intention  was  changed,  and  was 
80  expressed  and  understood  by  the  par- 
ties present,  among  whom  was  one  Lang- 
ford,  who  fraudulently  retained  the  sheet 
containing  the  blank  signature,  and  wrote 
a  promissoi'y  note  on  it.  The  court  held 
that  tile  defendant  was  not  liable  to  an 
indorsee  for  value  without  notice.  The 
court  say  :  "The  making  of  the  note  by 
Langford  was  not  a  mere  fraud  upon  the 
defendant ;  it  was  something  more.  It 
was  quite  as  much  a  forgery  as  if  he  had 
found  the  blank  or  purloined  it  from  the 
defendant's  possession.  If  a  recovery  was 
allowed  upon  such  a  state  of  facts,  then 
every  one  who  ever  indulges  the  idle  habit 
of  writing  his  name  for  mere  pastime,  or 
leaves  sufficient  space  between  a  letter  and 
his  subscription,  might  be  made  a  bank- 
rupt by  having  i)romi.se3  to  jiay  money 
written  over  his  signature.  Such  a  deci- 
sion would  be  alarming  to  the  community, 
has  no  warrant  in  law,  ami  cannot  receive 
our  sanction." 

This  case  was  distinguished  from  other 
ca.ses  decided  in  the  same  court  —  lirahan 
V.  Uaglaud,  3  Stew.  260;  Roberts  v.  Ad- 
ams, 8  Port.  297;  Herbert  v.  Huie,  1  Ala. 
18  —  on  the  ground  that  in  these  cases  au- 
thorit}'  was  conferred  by  the  persons  sign- 
ing the  blanks  to  use  them  for  some  i)ur- 
pose,  and  the  liability  is  placed  upon  the 
ground  that  though  tlic  power  was  abused, 
innocent  holders  of  paper  should  not  be 
the  lo.sers.  We  think  a  better  ground 
upon  which  such  cases  should  be  made  to 
rest,  as  in  the  case  of  Foster  v.  Mackinnon, 
L.  U.  4  C.  P.  704,  is  as  to  whether  there 
ha.s  been  "  n»'gligeiice  "  on  tlu'  jiart  of  the 
person  signing  the  paper,  which  is,  as  it 
was  in  that  ca.se,  a  question  for  the  jury 
on  the  facts;  and  we  think  that,  as  in 
that  case,  great  stress  in  deciiling  the 
question  as  to  negligence  should  be  jilaced 
on  the  manner  in  which  the  blank  signa- 
ture has  been  obtained.  If  given  for  the 
purpose  of  being  used  as  the  signature  of 
a  maker  or  indorser  of  a  note,  then,  as  was 
said,  with  reference  to  the  latter,  by  liOrd 
Mansfield,  in  Kussell  v.  l.angstatfe,  2 
Doug.  4)14,  516,  "The  indorsement  on  a 
blame  note  is  a  letter  of  credit  for  an  in- 
definite sum."  But  when  not  so  done, 
where  the  signature  is  obtained  for  an- 
other purpose,   such  as  either  of  those 


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400 


COMMENTARIES  ON   SALES. 


[book  II. 


'  I'  i 


i. 


in  Ketchum  v.  Duncan,^  it  was  held  that  a  banking  house  was  pur- 
chasing interest-coupons  and  not  paying  or  extinguishing  tliem, 
when  the  coupons  were  received  by  the  banking  house  witlioiit 
any  intention  of  extinguishing  them;  without  cancelling  tliera; 
without  receiving  any  checks  for  them  by  the  company  liable  for 
them,  and  without  having  any  vouchers  for  the  coupons  other  than 
the  coupons  themselves.  The  fact  of  their  production  uncancelled 
raises  a  presumption  from  their  possession  that  the  holder  of  them 
became  the  holder  of  them  in  the  usual  course  of  business,  for 
value,  at  their  date,  and  before  they  became  payable ;  and  this  pre- 
sumption becomes  conclusive  when  it  is  shown,  (1)  That  the  coup- 
ons have  not  been  paid  by  the  parties  liable  to  pay  them  ;  (2)  That 
they  were  not  paid  with  money  or  funds  furnished  by  those  par- 


named  by  Bylcs,  J.,  in  Foster  v.  Mackin- 
non,  L.  K.  4  C.  P.  at  ]).  712,  then,  we 
think,  the  party  signing  the  i)ai)er  is  no 
more  liable  as  the  maker  or  indorser  of  a 
promissory  note  which  lie  has  never  made, 
nor  expressly  or  impliedly  authorized  to  be 
made,  simply  because  a  document  iii  the 
form  of  a  promissory  note  has  been  fraud- 
ulently written  in  connection  with  his 
signature,  than  the  indorser  of  a  promis- 
sory note  is,  where  an  alteration  in  the 
promissory  note  has  been  made  subse- 
quent to  his  indorsement,  without  au- 
thority from  him,  either  express  or  to  be 
implied  from  the  facts.  Thus,  in  Mc- 
Grath  v.  Clark,  56  N.  Y.  34,  the  defend- 
ant indorsed  a  ])romissory  note,  with  the 
time  and  place  of  payment  in  blank,  and 
delivered  the  same  to  the  maker,  who 
filled  the  blanks  and  added  the  words 
"with  interest."  It  was  held  that  while 
the  delivery  of  the  note  to  the  maker  gave 
him  an  implied  authority  to  fill  the  blanks 
by  inserting  any  time  and  place  of  payment 
he  chose,  it  did  not  authorize  the  addition  of 
the  words  "with  interest ;"  and  this  was 
a  material  alteration  which  invalidated 
the  note  as  against  defendant,  in  the  ab- 
sence of  proof  of  some  authority  therefor, 
aside  from  the  delivery.  And  see  Wood- 
worth  I'.  Hank  of  America,  19  Johns.  391 ; 
('lute  V.  Small,  17  Wend.  238  ;  Dewey  v. 
Keed,  40  Marb.  21 ;  Miles  v.  Starr,  2 
Bailey,  359  ;  Waterman  v.  Vose,  43  Me. 
504  ;  Holmes  v.  Trumper,  22  Mich.  427; 
Kulmer  v.  Leitz,  68  Pa.  237;  HofTmer  v. 
Wenrich,  32  Pa.  423;  Kountz  v.  Kennedy, 
63  Pa.  187  ;  Garvard  v.  Hadilen,  67  Pa. 
82;  Britton  v.  Darker,  46  Mo.  691 ;  Boyd 
r.  Brotherson,  10  Wend.  98 ;  Bruce  v. 
Wescott,  3  Barb.  374;  Clute  v.  Small, 
17  Wend.  238;  Nazro  v.  Fuller,  24 
Wend.  374. 

We  think  it  is  well  stated  by  Byles,  J., 
that  it  is  plain,  on  principle  and  on  au- 


thority, that,  if  a  blind  man,  or  a  man 
who  cannot  read,  or  who  for  some  ivason 
(not  imjjlying  negligence)  forbears  to  iwui, 
has  a  written  contract  falsely  read  ovtT  to 
him,  the  reader  misreading  to  such  a  de- 
gree that  the  written  contract  is  of  a  na- 
ture altogether  different  from  the  contract 
pretended  to  be  read  fiom  the  pajier  wliicli 
the  blind  or  illiterate  man  at'tciwards 
signs  ;  then,  at  least  if  there  be  no  negli- 
gence, the  signature  so  obtained  is  of  no 
force.  And  it  is  invalivl  not  merely  on 
the  ground  of  fraud,  where  fraud  exists, 
but  on  the  ground  tliat  the  mind  of  the 
signer  did  not  accompany  the  signature,  — 
in  other  words,  that  he  never  inteiiiled  to 
sign,  and  therefore  in  contemplation  of 
law  never  did  sign,  the  contract  to  niiicli 
his  name  is  appended.  Foster  v.  Mackin- 
non,  L.  R.  4  C.  P.  at  p.  711.  This  ])iin- 
eiple  is,  clearly,  quite  as  aiiplioable  to 
any  other  case  where  a  signature  is  wrong- 
fully obtained  ;  there  being  iu  tlic  one 
case,  as  in  the  other,  no  negligeiiie.  See 
further,  Anglo  v.  N.  W.  Lite  Ins.  Co., 
92  U.  S.  330  ;  Tayleri-.  The  Great  Indian, 
&c.  I!y.  Co.,  4  De  G.  &  J.  55S  ;  .Michigan 
Bank  v.  Eldred,  9  Wall.  544. 

With  reference  to  the  question  (li'cided 
in  Parsons  v.  Jackson,  99  V.  S.  431,  it  is 
elementary  law  that  a  person  wlio  takes  a 
bill  which  bears  on  its  lace  cvidenee  of 
being  dishonored  or  of  vmln  fdi's,  cannot 
be  allowed  to  claim  the  ])riviK';,'cs  whit'li 
belong,  ordinarily,  to  a  hoiid  jide  li  dder, 
without  notice,  of  negotiable  paper.  An- 
drews V.  Pond,  13  Pet.  t)5  ;  Fowler  r. 
Brantley,  14  Pet.  318.  If  he  chooses  to 
receive  it  under  such  circumstances,  he 
takes  it  with  all  the  infirmities  lulonging 
to  it ;  and  is  in  no  better  condition  tliau 
the  pei-son  from  whom  he  received  it. 
Crossley  v.  Ham,  13  East,  498. 

1  96  U.  S.  659. 


PART  v.] 


CORPORATIONS. 


401 


m 


ties ;  nor  (3)  By  any  one  in  pursuance  of  an  agreement  with  those 
parties  to  pay  them  for  or  on  behalf  of  the  debtors,  or  in  extin- 
giiisliment  of  the  debt. 

In  an  action  against  a  corporation  by  a  bond  fide  holder  of  its 
bonds,  the  plaintiff  is  not  affected  by  fraud  and  irregularities 
touching  their  issue,  and  in  disposing  of  them,  nor  by  the  fact 
that  the  corporation  was  not  organized  within  the  time  limited  by 
its  charter.^  In  Kayser  v.  Trustees  of  Bremen,'-^  it  was  held  that 
it  could  not  be  sliown  in  defence  to  a  suit  of  a  corporation  that 
the  charter  was  obtained  by  fraud  ;  neither  can  it  be  shown  that 
the  charter  has  been  forfeited  by  misuser  or  non-user.  Advan- 
tage can  only  be  taken  of  such  forfeiture  by  process  on  behalf  of 
the  State,  instituted  directly  against  the  corporation  for  the  pur- 
pose of  avoiding  its  charter;  and  individuals  cannot  avail  them- 
selves of  it  in  collateral  suits  until  it  is  judicially  declared.^  Nor 
is  it  material  that,  at  the  time  of  the  purchase  of  the  bonds, 
proceedings  had  been  taken  and  were  pending  to  annul  the  bonds, 
if  the  holder  is  a  bond  fide  owner  for  value  of  the  bonds,  before 
maturity,  and  without  notice.* 

One  who  contracts  with  an  acting  corporation  cannot  defend 
liimself  against  a  claim  in  such  contract,  in  a  suit  by  the  corpora- 
tion, by  alleging  the  irregularity  of  its  organization.^  The  same 
principle  applies  to  the  case  of  a  subscription  to  the  capital  stock 
in  an  organization  which  has  attempted  irregularly  to  create  it- 
self into  a  corporation,  and  has  acted  as  such.*^  The  rule  applies 
to  increasing  the  stock  of  a  corporation  when  the  question  arises 
upon  paying  a  subscription  for  stock  forming  a  part  of  such  in- 
crease. The  duty  and  the  necessity  of  performing  the  contract  of 
subscription  are  the  same  as  in  the  case  of  an  original  stockholder.'^ 

xVn  assignee  appoin<"d  under  the  bankrupt  laws  of  the  United 
States  represents  both  the  corporation  and  its  creditors,  and  the 
defence  of  irregular  organization  cannot  be  urged  against  him. 
In  an  action  by  such  assignee  to  recover  unpaid  subscriptions 
upon  stock  in  such  an  organization,  the  defence  of  false  and  fraud- 
ulent representations  inducing  such  subscription,  cannot  be  set 
up ;  especially  when  the  subscriber  has  not  been  vigilant  in  dis- 
covering such  fraud,  and  in  repudiating  his  contract.     And  one 


\^ 


>  i 


It' 


i'lii^ 


■* 


HI. 


K> 


'  County  of  Macon  v.  Shores,  97  U.  S. 
272. 

"^"  16  Mo.  88. 

'  See  also  Smith  v.  County  of  Clarke, 
54  Mn.  .IS,  to  the  same  effect. 

*  County  of  Macon  v.  Shores,  97  U.  S. 
272. 

*  Diitdipss  Collar  Maniif.  Co.  v.  Dnvi.s, 
U  Johns.  237  ;  Sanger  v.  Upton,  91  U.  S. 

VOL.  1.  « 


56  ;  Upton  v.  Tribilcock,  md.  45  ;  Buffalo 
&  Alleghany  R.  R.  Co.  v.  Gary,  26  N.  Y. 
75  ;  Bissell  v.  Mieiiigan  Central  K.  R.  Co., 
22  N.  Y.  258. 

•  Methodist  Episcopal  Church  v,  Pick- 
ett, 19  N.  Y.  482 ;  Upton  v.  Hamborn,  3 
Biss.  417. 

f  Chubb  V.  Upton,  95  U.  S.  665. 


26 


402 


COMMENTARIES  ON  SALES. 


[book  II. 


i 


who  receives  a  certificate  of  stock  for  a  certain  number  of  shares, 
at  a  given  sum  per  share,  thereby  becomes  liable  to  pay  the 
amount  thereof  when  called  upon  by  the  corporation  or  its  as- 
signee.^ Nor  is  it  necessary,  to  sustain  the  action,  that  there 
should  have  been  a  subscription  for  the  whole  amount  named  on 
the  articles.^ 

Where  the  name  of  an  individual  appears  on  the  stockbook  of 
a  corporation  as  a  stockholder,  the  primd  facie  presumption  is 
that  he  is  the  owner  of  the  stock,  in  a  case  where  there  is  notli- 
ing  to  rebut  that  presumption;  and  in  an  action  against  iiim 
as  a  stockholder,  the  burden  of  proving  that  he  is  not  a  stock- 
holder, or  of  rebutting  that  presumption,  is  cast  upon  the 
defendant.^ 

The  names  of  the  owners  of  stock  certificates  having  been 
forged  to  the  transfers  of  stock,  transfers  of  the  stock  were  made 
by  the  company  on  their  books,  and  the  stocks  were  sold.  On  bill 
filed  against  the  company,  it  was  decreed  that  the  plaintiffs  should 
have  their  names  replaced  on  the  books  of  the  company,  and 
proper  certificates  issued  to  them,  and  be  paid  the  dividends 
which  accrued  on  the  shares  after  the  unauthorized  transfers ;  or 


1  Upton  V.  Tribilcock,  91  U.  S.  45 ; 
Webster  v.  Upton,  lb.  65  ;  Sanger  v.  Upton, 
lb.  56  ;  Ogilvie  v.  Knox  Ins.  Co.,  22  How. 
380  ;  Chubb  v.  Upton,  95  U.  S.  665. 

'^  Renssalaer  &  Washington  Plank 
Koad  Co.  V.  WesteJ,  21  Barb.  56.  The 
acceptance  and  holding  of  a  certificate 
of  shares  in  an  incorporation  makes 
the  holder  liable  to  the  responsibilities 
of  a  shareholder.  Brigham  v.  Mead,  10 
Allen,  245;  Buffalo  City  U.  R.  Co.  i;. 
Douglass,  14  N.  Y.  336 ;  Seymour  v. 
Sturges,  26  N.  Y.  134.  The  obligation  of 
the  subscriber  to  pay  his  subscription  can- 
not be  released  or  surrendered  to  him  by 
the  trustees  of  the  company.  The  capital 
paid  in,  and  promised  to  be  paid  in,  is  a 
fund  which  the  trustees  cannot  squander 
or  give  away.  They  are  bound  to  call  in 
what  is  unpaid,  and  carefully  to  husband 
it  when  received.  Sawyer  v.  Hoa<?,  17 
Wall.  610;  Tuckerman  «;.  Brown,  33  N.  Y. 
297 ;  Ogilvie  v.  Knox  Ins.  Co.,  22  How. 
380:  Osgood  v.  Laytin,  3  Keyes,  521. 

«  Turnbull  v.  Pay.son,  95  U.  S.  418; 
Hoftgland  i>.  Bell,  36  Barb.  57;  Plank  Road 
r.  Rice,  7  Barb.  162  ;  Turnpike  Road  v. 
Van  Ness,  2  Cranch,  C.  C.  451;  Mudgett 
V.  Horrell,  33  Cal.  25;  Coffin  v.  Collins,  17 
Mo.  440  ;  Merrill  v.  Walker,  24  Me.  237. 
In  Turnbull  v.  Payson,  95  U.  S.  418, 
the  defendant  denied  that  he  was  a  stock- 
holder in  •*  bankrupt  company,  in  which 
it  was  sought  to  charge  him  with  liability 
in  proportion  to  stock  standing  in  hia 


name.  The  books  of  the  corporation,  in 
which  the  name  of  the  defeiuiiiiit  was 
entered  as  the  owner  of  fifty  shares,  and 
the  stock-book  of  the  company,  with  a 
duplicate  of  the  stock  certificate  issued  to 
the  defendant,  showing  that  ho  wns  the 
owner  of  that  number  of  the  shares  of  the 
capital  stock,  were  in  evidence.  Testi- 
mony was  also  introduced  to  prove  that 
the  certificate  was  sent  to  the  agents  of 
the  company,  to  be  delivered  to  tiie  defend- 
ant when  he  paid  twenty  per  cent  of  the 
shares  ;  and  that  he  made  the  required 
payment.  The  jury  having  found  that 
the  defendant  was  a  stockholder,  as  al- 
leged, the  court  held  that  satisfactory 
proof  having  been  exhibited  that  the  com- 
pany was  duly  incorporated  and  organized, 
It  followed  that  the  evidence  given,  taken 
in  connection  with  the  fact,  also  proved, 
of  the  receipt  by  the  defendant  of  a  divi- 
dend upon  the  shares  standing  upon  the 
books  of  the  company  in  his  name,  was 
conclu.sive  to  show  the  liability  of  the  de- 
fendant ;  there  being  no  contradiction  of 
such  evidence.  Upton  i;.  Hansbrough',  10 
Natl.  Bkr.  Reg.  369  ;  In  re  Bank,  12 
N.  Y.  17;  Alder  v.  Bank,  13  Wis.  61; 
Ward  V.  Manuf.  Co.  16  Conn.  593. 
Where  a  company  becomes  bankrupt,  the 
stockholders  are  liable  to  the  assignee  for 
the  unpaid  portion  of  their  stock,  which 
is  recoverable  in  the  district  court.  Turn- 
bull  V.  Payson,  95  U.  S.  418. 


[book  II. 

jer  of  shares, 
B  to  pay  the 
ion  or  its  as- 
in,  that  there 
int  named  on 


stockbook  of 
resumption  is 
here  is  noth- 
L  against  him 
}  not  a  stock- 
ist   upon   the 

1  having  been 
)ck  were  made 
ssold.  On  bill 
iaintiffs  should 


company 


and 


the  dividends 
[  transfers ;  or 

the  corporation,  in 
the   defeiiiiant  was 
lof  fifty  shares,  and 
J  company,  witii  a 
certificate  issued  to 
ig  that  he  was  the 
of  the  shares  of  the 
I  evidence.     Testi- 
need  to  prove  that 
it  to  the  agents  of 
vered  to  the  defend- 
nty  per  cent  of  the 
made  the  required 
having  found  that 
stockholder,  as  al- 
1  that  satisfactory 
ibited  that  the  com- 
•ated  and  organized, 
idence  given,  taken 
e  fact,  also  proved, 
lefendant  of  a  dm- 
standing  npon  tin- 
in  his  name,  was 
f  liahility  of  the  de- 
no  contradiction  ol 
V.  Hansbrough,  W 
;    In  re  Bank,  12 
iank,  13  Wis.  61 ; 
}.    16   Conn.   o9i. 
omes  bankrupt,  the 
to  the  assignee  tor 
their  stock,  whieli 
itrict  court.    Turn- 
418. 


PART  v.] 


CORPORATIONS. 


403 


have  alternative  judgments  for  the  value  of  the  shares  and 
dividends.' 

An  assignee  of  corporate  stock,  who  has  caused  it  to  be  trans- 
ferred to  himself  on  the  books  of  the  company,  and  holds  it  as 
collateral  security  for  a  debt  due  from  his  assignor,  is  liable  for 
unpaid  balances  thereon  to  the  company,  or  to  the  creditors  of  the 
company,  after  it  has  become  bankrupt.^ 

The  capital  stock  of  a  company,  especially  its  unpaid  subscrip- 
tions, is  a  trust  fund  for  the  general  benefit  of  the  creditors ; 
therefore,  a  transaction  between  a  purchaser  of  stock  designed  to 
turn  the  unpaid  subscription  for  stock  into  an  ordinary  indebted- 
ness, is  a  fraud  upon  the  public,  and  a  set-off  as  between  the  com- 
pany and  the  stockholder  will  not  be  allowed,  as  it  would  work 
an  injustice  to  the  creditors.^ 

In  a  multitude  of  cases  decided  in  England  and  in  this  country, 
it  has  been  determined  that  a  subscriber  for  the  stock  of  a  com- 
pany is  not  released  from  his  engagement  to  take  it  and  pay  for 
it,  by  any  alteration  of  the  organization  or  purposes  of  the  com- 
pany which,  at  the  time  the  subscription  was  made,  was  author- 
ized, either  by  the  general  law  or  by  the  special  charter ;  and  a 


'  Telegraph  Co.  v.  Davenport,  97  U.  S. 
369.  The  same  doctrine  has  been  i-epeat- 
edly  sustained  both  in  England  and  thi.s 
country.  Davis  v.  Bank  of  £ngland,  2 
Bing.  393  ;  Hilgard  v.  South  Sea  Co.,  2 
P.  Wms.  76  ;  Stotnan  v.  Hank  of  England, 
14  Sim.  475  ;  Taylor  v.  Midland  IJy.  Co., 
28  Beav.  287;  Ashby  v.  Blackwall,  2 
E^en,  299  ;  Lowry  v.  Commercial,  &c. 
Bank,  Taney,  C.  C.  Dec.  310  ;  Sewall  v. 
Boston  Water-Power  Co,,  4  Allen,  277; 
Pratt  V.  Taunton  Copper  Co.,  123  Mass. 
110;  Chew  V.  Bank  of  Baltimore,  14  Md. 
299;  Pollock  v.  The  National  Bank,  7 
N.  Y.  274  ;  Weaver  v.  Bardcn,  49  N.  Y. 
286  ;  Cohen  v.  Gwynn,  4  Md.  Ch.  Dec. 
357 ;  Ualton  v.  Midland  Riiilway  Co.,  22 
Kng.  L.  &  Va].  452  ;  Swan  v.  North  Brit- 
ish, &c.  Co.,  7  H.  &  N.  603. 

■^  Pullman  v.  U|)ton,  96  U.  S.  328. 
The  transferee  of  the  shares  is  respon- 
sible for  whatever  remains  unpaid  upon 
his  shares  ;  for  by  the  transfer  on  the 
books  of  the  corporation  the  former  owner 
is  discharged.  It  makes  no  ditference 
that  the  legal  owner,  that  is,  he  in  who.se 
name  the  stock  stands  on  the  books  of  the 
corporation,  is  in  fact  only,  as  between 
himself  and  his  assignor,  a  holder  for  secu- 
rity of  a  debt,  or  even  that  be  has  no 
beneficial  interest  therein.  The  Newry, 
&c.  Ry.  Co.  I?.  Moss,  14  Beav.  64  ;  Hoare's 
Oase,  2  J.  &  H.  229 ;  The  Empire  City 
Bank,  18  N.  Y.  200  ;  Adderley  v.  Storm, 
6  Hill,  t^t.    In  Holyoake  Bank  v.  Bum- 


ham  ,11  Cush.  183,  it  was  decided  that  a 
transfer  of  stock  on  the  books  of  the  bank, 
intended  merely  to  be  held  as  collateral 
security,  makes  the  holder  liable  for  the 
bank  debts.  It  was  said,  the  creditor  is 
to  be  considered  tlie  absolute  owner,  and 
that  his  arrangement  with  his  debtor  can- 
not change  the  character  of  the  owner- 
ship. And  in  Wheelock  v.  Cost,  77  111. 
296,  the  doctrine  was  asserted,  that  when 
shares  of  stock  in  a  banking  cor{)oration 
have  been  hypothecated,  and  placed  in 
the  hands  of  tlie  tran.fcree,  lie  will  be 
subjected  to  all  the  liabilities  of  ordinary 
owneis,  for  the  reason  that  the  property  is 
in  his  name,  and  the  legal  ownership  ap- 
pears to  be  in  him.  See  Fetinick's  Case, 
1  De  G.  &  S.  557  ;  Luard's  Case,  1  De  G. 
F.  &  J.  633  ;  Price  and  Brown's  Case,  3 
De  G.  &  Sm.  146  ;  Burlinson's  Case,  3 
De  G.  &  Sm.  18;  Pollard  v.  Bailey,  20 
Wall.  620  ;  Bank  of  Utica  v.  Smalley,  2 
Cow.  770  ;  Curtis  i-.  Harlow,  12  Met.  5. 

8  Sawyer  v.  Hoag,  17  Wall.  610.  See 
Burke  v.  Smith,  16  Wall.  390 ;  New  Al- 
bany V.  Burke,  1 1  Wall.  96  ;  Curran  d. 
State  of  Arkansa.s,  15  How.  304;  Wood  v. 
Dummer,  3  Mason,  305;  Slee  v.  Bloom,  19 
Johns.  456;  Briggs  v.  Penniman,  8  Cow. 
387;  Trustees  of  Vernon  v.  Hall.  6  Cow. 
23 ;  The  People  v.  Bank  of  Niagara, 
lb.  196 ;  Slee  v.  Bloom,  20  Johns.  669 ; 
The  People  v.  The  Washington  &  Warren 
Bank,  6  Cow.  211. 


I  in 


■  i  ; 


I. 


; 


' 


m 


^1 


A: 


if 
I 


m 


H 


I; 


■ 


l: 


■1  . 


ii> 


404 


COMMENTARIES  ON  SALES. 


[book  II, 


clear  distinction  is  recogjnized  between  the  effect  of  such  altera- 
tions, and  the  effect  of  those  made  under  legislation  subsequent  to 
the  contract  of  subscription.  The  contract  is  made  with  reference 
to  the  law  existing  at  the  time  of  making  the  contract.^ 

A  majority  of  stockholders  and  creditors  of  a  railroad  company 
being  anxious  to  sell  the  railroad,  the  sale  being  opposed  by  other 
stockholders,  under  an  arrangement  between  the  majority  and 
mortgagees  in  trust  for  the  creditors,  the  railroad  was  sold  un- 
der a  friendly  foreclosure  of  one  of  the  mortgages.  On  a  bill 
filed  by  the  dissenting  stockholders  against  the  railroad  company 
and  tlie  purchasers,  to  set  aside  the  sale,  the  Supreme  Court  of  the 
United  States  held  ^  that  the  bill  had  been  properly  dismissed  by 
the  court  below  ;  the  trustees  and  the  majority  holders  not  having 
been  made  parties  to  the  bill,  as  they  should  have  been,  as  their 
interests  would  be  affected  by  the  decree  sought  to  be  obtained.^ 

Where  the  appellant  made  a  sale  and  assignment  of  his  stock 
in  a  railroad  company  to  the  respondent,  for  valuable  considera- 
tion, and  then  sought  to  set  the  assignment  aside  on  the  groimds 
of  hardship,  imposition,  and  oppression,  the  assignment  by  the 
appellant  having  been  voluntary  ;  the  court  decided  that  the  fact 
that  he  was  in  straitened  circumstances,  embarrassed  with  liti- 
gation, and  pressed  for  want  of  pecuniary  means,  for  which  the 
respondent  was  not  responsible,  and  did  nothing  to  cause,  and 
that  the  sale  and  assignment  were  not  caused  hy  any  act  of  vio- 
lence, or  threat  of  any  kind,  calculated  to  intimidate  the  party  or 
to  force  the  result,  or  to  compel  that  consent  which  is  the  essence 
of  every  valid  contract,  he  must  abide  the  consequences  of  his  own 
voluntary  act,  particularly  as  the  arrangement  was  not  inequit- 
able or  unconscionable.  Having  performed  the  act  after  he  had 
ample  time  for  inquiry,  examination,  and  reflection,  neither  a 
court  of  equity  nor  of  law  could  release  him  from  the  obligation  of 
fulfilling  his  contract  according  to  its  terms.* 


1  Nugent  V.  The  Supervisors,  19  Wall. 
241  ;  The  Cork  &  Youghal  Ry.  Co.  v. 
Paterson,  37  Eng.  L.  &  Eq.  398;  Nixon 
V.  Brownlow,  and  Nixon  v.  Green,  3  H. 
&  N.  386  ;  Sparrow  v.  Tlie  Evansville  & 
Crawfordsville  R.  R.  Co.,  7  Porter  (Ind.), 
369;  Bishop  v.  Brainerd,  28  Conn.  289; 
Schenectady  &  Saratoga  Plank-road  Co.  v. 
Thatcher,  1  Kern.  102;  Bish  v.  Johnson, 
21  Ind.  299  ;  Hanna  v.  Cincinnati,  20 
Ind.  30 ;  Buffalo  &  N.  Y.  City  R.  R.  Co. 
V.  Dudley,  4  Kern.  336;  Meadow  Dam  v. 
Gray,  30  Me.  547;  Agricultural  Branch 
R.  R.  Co.  V.  Winchester,  13  Allen,  32 ; 
Noyes  v.  Spaulding,  27  Vt.  420 ;  Pacific 
R.  R.  Co.  V.  Renshaw,  18  Mo.  210;  Fry 
V.  Lexington,  2  Met.  314;  Illinois  River 


R.  R.  Co.  V.  Beers,  27  III.  189;  Terre 
Haute  &  Alton  R.  R.  Co.  v.  Earp,  21  111. 
292. 

2  Ribon  V.  Railroad  Companies,  16 
Wall.  446. 

8  See  Caldwell  »-.  TagRart,  4  Peters, 
190;  Story  v.  Livingston,  13  Ppters,  359; 
Marshall  v.  Beverlev,  5  Wheat.  313;  Coy 
V.  Mason,  17  How.  580;  Russell  v.  Clark's 
Exrs.,  7  Cranch,  69. 

*  French  v.  Shoemaker,  14  Wall.  314. 
A  contract  or  written  obligation  pro- 
cured by  means  of  duress  is  iiiojjerative 
and  void  both  at  low  and  in  equit}'.  And 
actual  violence,  even  at  common  law,  a 
not  necessary  to  establish  duress,  because 
consent  is  of  the  very  essence  of  a  contract; 


:i 


PART  v.] 


CORPORATIONS. 


405 


d    Companies,  W 


Where  bankers  received  stock  certificutes  from  a  trustee  (the 
certilicates  showing  on  their  face  that  they  were  held  in  trust), 
for  loans  made  by  them  to  the  trustee,  the  loans  being  for  his  own 
private  benefit,  they  are  liable  to  account  to  the  cestuis  que  trust 
lor  the  value  of  the  stock.  The  statement  in  the  certificates  that 
they  are  held  in  trust  is  actual  or  constructive  notice  to  the  bank- 
ers, and  puts  them  on  inquiry,  so  that  they  take  them  at  their 
peril  when  they  receive  them  as  security  for  the  trustee's  own 
debts.i 

Subscribers  for  stock,  who  have  not  paid  up  their  subscriptions, 
but  have  bond  fide  assigned  their  stock,  and  the  assignees  have 
been  duly  substituted  for  the  original  subscribers,  will  not  be  held 
liable  to  the  creditors  of  the  company .^ 

Bond  fide  purchasers  of  railway  bonds  purchased  them  in  good 
faith  in  the  open  market,  the  parties  supposing  them  to  be  valid 
obligations  of  the  railway  company,  and  purchasing  them  as  such 
for  a  valuable  consideration,  they  are  bond  fide  holders  for  value 
of  such  bonds,  and  will  bo  protected  as  such,  though  the  bonds 
may  have  been  improvidcntly  issued  by  the  company.^ 

held  that  if  ,i  party  dealing  with  an  exec- 
utor has  at  the  time  reasonable  ground 
for  believing  that  he  intends  to  nu.sa])iily 
the  money,  or  is,  in  the  very  transaction, 
applying  it  to  his  private  use,  the  party 
so  dealing  with  the  executor  is  responsible 
to  the  persons  injured.  And  Shaw  v. 
Spencer,  100  Mass.  389,  decides  that  if  a 
certificate  of  .stock,  e.\presse<l  in  the  name 
of  "A.  B.,  trustee,"  is  by  him  pledged  to 
secure  his  own  debt,  the  pledgee  is,  by 
the  terms  of  the  certificate,  put  on  in- 
<iuiry  as  to  the  ch!irai;ter  and  limitations 
of  the  trust,  r.uu  if  he  accepts  the  pledge 
without  incjuiry,  he  docs  so  at  his  peril. 
Sturlevant  v.  Ja<|ues.  \i  Allen,  523;  Ban- 
croft V.  (.'onsen,  13  Allen,  50  ;  Trull  v. 
Trull,  13  Allen,  407;  Hutchins  v.  State 
Bank,  12  Met.  421 ;  Hill  v.  Simpson,  7 
Ves.  152;  Field  v.  Schieffelin,  7  Johns. 
Ch.  150;  Petrie  v.  Clark,  11  S.  &  R.  377; 
Walker  v.  Taylor,  4  L.  T.  N.  .s.  845;  But- 
trick  V.  Holden,  13  Met.  355  ;  Calais 
Steamboat  Co.  v.  Van  Velt,  2  Black,  377. 
See,  as  to  the  extent  to  which  purchasers 
from  trustees  are  jiut  on  in(iuiry,  Ashton 
V.  Atlantic  Bank,  3  Allen,  217;  Albert  v. 
Savings  Bank,  1  Md.  Ch.  408;  Atkinson 
V.  Atkinson,  8  Allen,  15  ;  Pennsylvania 
Life  Ins.  Co.  v.  Austin,  42  Pa.  257;  Car- 
rard  r.  Pittsburg,  &c.  Co.,  29  Pa.  154; 
Dodson  V.  Simpson,  2  Rand.  294;  Tilling- 
hast  V.  Champlin,  4  R.  I.  172,  213;  Mc- 
Leod  I'.  Druinmond,  14  Ves.  353. 

a  Burk«  v.  Smith,  16  Wall.  390. 

»  Galveston  R.  R.  Co.  v.  Cowdrey,  11 
Wall.  459. 


and  if  there  be  compulsion  there  is  no 
actual  consent.  And  moral  compulsion, 
Buch  us  that  produced  by  threats  to  take 
life  or  to  intlict  great  bodily  harm,  as  well  as 
that  produced  by  im]irisonment,  is  every- 
where regarded  as  sulficient  in  law  to  de- 
stroy free  agency,  without  which  there 
can  be  no  contract,  because  in  that  state 
of  the  case  there  is  no  consent.  Brown  v. 
Pierce,  7  Wall.  214;  Foshay  v.  Ferguson, 
5  Hill,  158;  Central  Bank  v.  Copeland, 
18  Md.  ;n7;  Eadie  v.  Slimmon,  26  N.  Y. 
12;  Harmony  v.  Bingham,  12  N.  Y.  99  ; 
Fleetwood  v.  New  York,  2  Sandf.  475; 
Tutt  y.  Ide,  3  Blatchf.  250  ;  Astley  v. 
Reynolds,  2  Str.  915  ;  Brown  v.  Peck,  2 
Wis.  277 ;  Oates  v.  Hudson,  5  Eng.  L.  & 
Bj.  469.  Where  there  is  an  arrest  for  an 
inipropcr  purpose,  without  just  cause,  or 
where  there  is  an  arrest  for  a  just  cause, 
but  without  lawful  authority,  or  for  a  just 
cause,  but  for  an  uidawfnl  purpose,  even 
though  under  jiroper  process,  it  may  be 
considered  as  duress  of  imprisonment ; 
and  if  the  person  arrested  execute  a  con- 
tract or  pay  money  for  his  release,  he  may 
avoid  the  contract  as  one  procured  by  du- 
ress, or  he  may  recover  back  the  money  in 
an  action  for  money  had  and  received. 
Richardson  v.  Duncan,  3  N.  H.  508;  Wat- 
Kuis  V.  Baird,  6  Mass.  511  ;  Strong  v. 
Grannis,  26  Barb.  124. 

'  Duncan  v.  Jaudon,  15  Wall.  165. 
In  Lowry  v.  Commercial  &  Farmers'  Bank 
of  Maryland,  Tan.  C.  C.  Dec.  310,  which 
was  a  case  of  misappropriation  of  corpo- 
rate stock  by  an  executor,  Taney,  0.  J., 


ill' 


r;'i 


I 


1 


406 


COMMENTARIES  ON  SALES. 


[book  II. 


Railroad  certificates  were  issued  to  stockholders  in  lieu  of  their 
stock.  The  court  held  that  they  were  not  necessarily  negotiable, 
simply  because,  by  their  terms,  they  enure  to  the  benefit  of  the 
bearer.  They  were  assignable,  and  would  have  been  so  if  the 
word  "  bearer"  had  been  omitted,  but  they  were  not  negotiable  in- 
strumcnts  in  the  sense  that  when  transferred,  the  equities  which 
had  previously  attached  to  them  did  not  follow  thein.^ 

As  against  innocent  purchasers  for  value  of  bunds  guaranteed 
by  a  corporation,  a  stockholder  of  the  corporation,  who  was  pres- 
ent at  a  meeting  called  to  ratify  the  act  of  the  board  in  making 
the  guaranty,  and  who  declined  to  vote  against  a  resolution  rati- 
fying the  act,  will  not  be  permitted  to  contest  the  validity  of  the 
guaranty  which  could  not  have  passed  if  he  had  voted  against  it,^ 

Where  subscribers  to  the  stock  of  an  insurance  company  pay 
an  instalment  of  their  subscriptions,  give  their  securities  for  the 
balance,  and  conduct  the  business  for  sevei*al  years  in  the  expec- 
tation of  large  profits,  they  are  not  relieved  from  paying  those  se- 
curities, as  between  themselves  and  the  creditors  of  the  company, 
because  the  agent  of  the  corporation,  who  took  the  subscriptions  of 
stock,  made  certain  representations  concerning  the  state  of  the 
affairs  of  the  corporation  which  were  not  true.^ 


I  Railroad  Co.  v.  Howard,  7  Wall.  392; 
Mechanics'  Bank  v.  Kailroiul  Co.,  13  N.  Y. 
599.  Valid  contracts  made  by  a  corpora- 
tion survive  even  its  dissolution  by  vol- 
untary surrender  or  sale  of  its  corjwrato 
franchises;  and  the  creditors  of  the  cor- 
poration, notwithstanding  such  surrender 
or  sale,  may  still  enforce  their  claims 
against  the  property  of  the  corporation  as 
if  no  such  surrender  or  sale  had  taken 
place.  Moneys  derived  from  the  sale  and 
transfer  of  the  franchises  and  capital  stock 
of  an  incorporated  company  are  assets  of 
the  corporation,  and  as  such  constitute  a 
fund  for  the  payment  of  its  debts  ;  and  if 
held  by  such  corporation  itself,  and  so 
invested  as  to  be  subject  to  legal  process, 
the  fund  may  be  levied  on  by  such  pro- 
cess ;  but  if  the  fund  has  been  distributed 
among  tlie  stockholders,  or  passed  into 
the  hands  of  other  than  bond  fide  creditora 
or  purchasers,  leaving  any  debts  of  the 
corporation  unpaid,  the  established  rule 
in  equity  is,  that  such  holders  take  the 
fund  charg(;d  with  the  trust  in  favor  of 
creditors,  which  a  court  of  equity  will  en- 
force, and  compel  the  application  of  the 
same  to  the  satisfaction  of  their  debts. 
Railroad  Co.  v.  Howard,  7  Wall.  410; 
Mumma  v.  Potomac  Co.,  8  Peters,  286; 
Wood  V.  Dummer,  3  Mason,  308;  Vose  t>. 
Grant,  15  Mass.  522 ;  Spear  v.  Grant,  16 
Mass.  14;  Currau  v.  Arkansas,  15  How. 
307. 


'^  Zabriskie  v.  The  Cleaveland,  &i'.  Ry. 
Co.,  23  How.  381.  And  see  Clm[iiiiaii  v, 
Mud  River  Ry.  Co.,  6  Ohio,  N.  s.  119; 
The  State  v.  Van  Home,  7  Ohio,  x.  s. 
327  ;  where  the  Supreme  Court  of  Ohio 
recognized  the  obligation  of  corporatoR 
to  be  prompt  and  vigilant  in  the  exposure 
of  illegality  or  abuse  in  the  eniployiiient 
of  their  corporate  powers,  and  denied 
assistance  to  those  who  waited  till  tiie 
evil  had  been  done,  and  the  interest  of 
innocent  parties  had  become  involved. 

8  Ogilvie  V.  The  Knox  Insurance  Co., 
22  How.  380.  In  order  to  obtain  relief  in 
such  a  case,  prompt  action  is  required, 
The  party  who  seeks  to  be  relieved  on  the 
ground  of  fraud  will  fail  where  there  is 
laches  or  acquiescence  on  his  part.  Mm- 
son  V.  Bovet,  1  Denio,  69  ;  Wheiiton  v. 
Baker,  14  Barb.  594 ;  Munn  v.  Worrall, 
16  Barb.  221.  He  wlio  has  been  indiueJ 
to  part  with  his  property  on  a  f'niudnlent 
contract  may,  on  disclaiming  the  fraud, 
avoid  the  contract  and  claim  a  return  of 
his  projwrty.  Fraud  destroys  the  con- 
tract, and  the  fraudulent  purchaser  ac- 
Suires  no  title.  But  a  party  who  would 
isaffirm  a  fraudulent  contract  must  act 
promptly  upon  discovering  the  frau^l,  and 
he  must  return  or  ofll'er  to  return  whatever 
he  has  received  upon  it.  He  cannot  re- 
tain what  he  has  received,  if  it  is  of  any 
value,  and  proceed  to  recover  the  jirojierty 
fraudulently  purchased  of  him.    He  must 


Cleavelanil,  &l'.  Ry. 
Vnd  see  CluipiiKiii  o. 
6  Ohio,  N.  s.  119; 
orne,  7  Ohio,  x.  s. 
■ome  Court  of  Ohio 
.tion  of  corporatoR 
|liint  in  the  exposure 
in  the  einiiloyiuent 
(owers,   and    licnied 
ho  waited  till  the 
land  the  interest  of 
jcome  involved. 
nox  Insurance  Co,, 
r  to  obtain  relief  in 
action  is  reijuired. 
|o  be  relieved  on  tlie 
fail  where  there  is 
Ion  his  pnrt.    Mus- 
[o,  69  ;  Wheatou  D. 
Munn  V.  Worrall, 
.0  has  been  intliued 
•ty  on  a  fniuiliikut 
ilaiming  the  fraud, 
claim  a  return  of 
destroys  the  eon- 
[lent  purchaser  ac- 
a  party  who  would 
contract  must  act 
.•ing  the  fraud,  and 
to  return  whatever 
lit.     He  cannot  re- 
■ed,  if  it  is  of  ""y 
.cover  the  jirojierty 
of  him.    He  must 


PART  v.] 


CORPORATIONS. 


407 


5.  Municipal  Corporation  Transactions,  Sale  of  Bonds,  etc. 

By  an  act  of  a  State  legislature,  the  power  to  issue  bonds  for  a 
subscription  to  railway  stock,  by  a  municipality,  was  made  condi- 
tional upon  a  vote  of  the  electors.  The  United  States  Supremo 
Court  held,  in  Town  of  Coloma  v.  Eaves,^  in  an  action  on  such 
bonds,  tliat  they  having  been  issued,  indorsed  with  a  certificate  by 
tbe  oHicers  empowered  to  judge  as  to  their  validity,  wliich,  with  the 
recitals  in  the  bond  themselves,  showed  that  the  bonds  had  been 
properly  issued,  and  that  all  of  the  prerequisites  to  their  issue  had 
been  complied  with  ;  the  bonds,  as  between  a  bond  fide  purchaser 
and  the  municipality,  were  valid.  The  court  held,  that,  after  what 
had  been  done,  it  was  not  an  open  question  as  between  a  bond  fide 
holder  of  the  bonds  and  the  municipality,  whether  all  the  pre- 
requisites to  their  issue  had  been  complied  with.  Apart  from  and 
beyond  the  reasonable  presumption  tliat  the  officers  of  the  law, 
the  municipality  officers,  discharged  their  duty,  the  matter  had 
passed  into  judgment.  The  persons  appointed  to  decide  whether 
the  necessary  prerequisites  to  their  issue  had  been  completed  had 
decided,  and  certified  their  decision.  They  had  declared  the  con- 
tingency to  have  happened,  on  the  occurrence  of  which  the  author- 
ity to  issue  the  bonds  was  comjilete.  Their  recitals  were  such  a 
decision,  and  beyond  these  a  bond  fide  purchaser  was  not  bound 
to  look  for  evidence  of  things  in  pais.  He  is  bound  to  know  the 
law  conferring  upon  the  municipality  power  to  give  the  bonds  on 
the  happening  of  a  contingency  ;  but  whether  that  has  happened 
or  not  is  a  question  of  fact,  the  decision  of  which  is  by  the  law 
confided  to  others,  —  to  those  most  competent  to  decide  upon  it ; 
and  which  the  purchaser  is,  in  general,  in  no  condition  to  decide 
for  himself.^ 


rescind  the  contract  in  toto,  and  thus  place 
the  party  in  the  position  he  was  in  before 
the  sale.  Gary  i\  Hotailing,  1  Hill,  311; 
M\  V.  Putnam,  1  Hill,  302  ;  Root  v. 
French,  13  Wend.  571 ;  Vooriiees  v.  Karl, 
2  Hill,  288  ;  Baker  v.  Robins,  2  Denio, 
186;  Hogan  v.  Wcyer,  5  Hill,  390;  Moyer 
V.  Shocmai<er,  5  Barb.  322,  323 ;  Kimball 
r.  C\imiingham,  4  Mass.  602  ;  Conner  v. 
Henderson,  15  Mass.  319  ;  Coolidge  v, 
Bingham,  1  Met.  547. 

1  92  U.  S.  484. 

"^  See  Knox  v.  Aspinwall,  21  How.  544; 
The  Unyal  British  Bank  v.  Tor(iuand,  6 
El.  &  Bl.  327;  Moran  v.  Miami  County, 
2  Black,  732;  Mercer  County  v.  Hackett, 
1  Wall.  83;  Mayer «;.  Muscatine,  lb.  384; 
Supervisors  v.  Schenk,  5  Wall.  784;  Van 
Hostropv.  Madi.son  City,  1  Wall.  291;  St. 
Joseph's  Township  w.  Rogers,  16  Wall.  644; 


Town  of  Veni-'e  v.  Murdock,  92  U.  S.  494; 
County  of  Moultrie  v.  Savings  Bank,  lb. 
631  :  Money  v.  Townshiii  of  Oswego,  02 
U.  S.  637.  Tlie  United  States  Supreme 
Court  in  The  Commissioners  of  Douglas 
County  V.  Bolles,  94  U.  S.  104,  followed 
and  affirmed  their  decision  in  Town  of 
Coloma  V.  Kaves,  92  U.  S.  484.  The 
principle  of  estoppel  applies.  Commis- 
sioners of  Johnson  County  v.  January,  94 
U.  S.  202;  Supervisors  v.  Schenk,  5  Wall. 
772  ;  Olcott  v.  The  Supervisors,  16  Wall. 
698  ;  City  of  Lexington  v.  Butler,  14 
Wall.  283;  Pendleton  County  v.  Amy,  13 
Wall.  298  ;  Myers  v.  Muscatine,  1  Wall. 
385  ;  Knox  v.  Aspinwall,  21  How.  544  ; 
Lind  V.  The  County,  16  Wall.  6 ;  St.  Jo- 
seph's Township  v.  Rogers,  lb.  644  ;  Pine 
Grove  v.  Talcot,  19  Wall.  666.  A  bond 
fiik  purchaser  of  municipal  bonds  ia  under 


■;    it 


I'. 


A 


0 


■ 


\  H 


5^ 


i  I 


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■■   , 


1'  I 


r.: 


(h 


( 


i 


KM) 


408 


COMMENTARIES  ON  SALES. 


[book  II. 


In  an  action  against  a  county  board  of  Bupcrvisors  for  tlie 
amount  of  bonds  given  by  a  county  for  stock,  for  which  the  county 
was  legally  authorized  tu  subscribe,  it  was  held  that  where  tiiore 
was  a  resolution  of  the  county  declaring  the  subscription  niade, 
an  acceptance  by  the  company,  notice  of  the  acceptance,  delivcn 
of  the  bonds  after  the  duly-authorized  committee  of  the  county  hud 
decided  that  all  the  prescribed  conditions  precedent  to  the  dt'livtiy 
of  the  bonds  had  been  complied  with,  —  the  county  accepting  the 
position  of  a  stockholder,  receiving  certificates  for  the  stock  sub- 
scribed, voting  as  a  stockholder,  and  levying  a  tax  to  pay  the 
interest  fulling  duo  on  the  bonds ;  the  validity  of  the  bonds,  and  of 
their  accompanying  coupons  in  the  hands  of  a  bond  fide  holder  for 
value,  was  beyond  doubt,  although  no  formal  subscription  was 
made  by  the  county  on  the  books  of  the  company.* 

Bonds  for  the  j)ayment  of  money,  lawfully  issued  by  municipal 
corporations,  when  they  arc  payable  to  order  and  are  indorsed  in 
blank,  as  well  as  the  coupons  attached  to  them  as  interest  war- 
rants, are  transferable  by  delivery,  and  are  subject  to  the  same 
rules  and  regulations,  so  far  as  respects  the  title  and  rights  of  the 
holder,  as  negotiable  bills  of  ex<  'lango  and  promissory  notes. 
Holders  of  such  instruments,  if  tl  same  are  indorsed  in  blank  or 
are  payable  to  bearer,  are  as  effectu.,  .ly  shielded  from  the  defence  of 
prior  equities  between  the  original  parties,  if  unknown  to  them  ' 
the  time  of  the  transfer,  as  the  holders  of  any  other  class  of  nego- 
tiable instruments.^  And  when  a  corporation  has  power  under 
any  circumstances  to  issue  negotiable  securities,  the  bond  fide 
holder  has  the  right  to  presume  that  they  were  issued  under  the 
circumstances  which  give  the  requisite  authority,  and  that  they 
are  no  more  liable  for  any  infirmity  in  the  hands  of  such  a  holder 
than  any  other  commercial  paper.'* 

Mere  political  bodies,  constituted  as  counties,  are  so  constituted 
for  the  purpose  of  local  police  and  administration,  and,  having  the 
power  of  levying  taxes  to  pay  all  public  charges  created,  have  no 
power  or  authority  to  make  and  utter  commercial  pa[)er  of  any 
kind,  unless  such  power  is  expressly  conferred  upon  them  by  law, 
or  is  clearly  implied  from  some  power  expressly  given,  which  can- 
not be  fairly  exercised  without  it.*    No  such  implication  arises 


110  obligation  to  look  beyond  the  recital  in 
the  bonds  as  to  the  vote  authorizing  their 
issue  having  been  suffieient,  when  the  bonds 
liave  been  duly  issued  and  attested  by  the 
proper  officers.  Township  of  Rock  Creek 
V.  Strong,  96  U.  S.  271 ;  San  Antonio  v. 
Mehaffy,  lb.  312. 

1  Nugent  V.  The  Supervisors,  19  Wall. 
241.  And  see  The  Justices  of  Clark  County 
V.  The  Paris,  \V.  &  K.  River  Turnpike  Co., 
11  B.  Mon.  143. 


2  City  of  Lexington  v.  Butler,  14  \\'a\\. 
282  ;  Moran  v.  Miami  County,  2  libuk, 
722  ;  Mercer  County  v.  Hackct,  1  Wall. 
83. 

"  City  of  Lexington  v.  Butler,  supra ; 
Gelpcke  v.  Dubuque,  1  Wall.  203;  Knox 
County  V.  Aspinwall,  21  How.  539;  Sii]'"- 
visors  V.  Schenck,  5  Wall.  784;  Bissell  ii. 
Jelfersonville,  24  How.  299. 

*  Clairborne  County  v.  Brooks,  HI 
U.  S.  400,  406. 


PART   V.J 


CORPORATIONS. 


409 


from  the  granting  the  power  to  a  municipal  corporation  to  appro- 
priate moneys  in  aid  of  the  construction  of  a  railroad,  accompanied 
l)v  a  provision  directing  the  levy  and  collection  of  taxes  to  meet 
siu'ii  appropriation,  and  jjrescribing  no  other  mode  of  payment' 

In  an  action  against  a  municipalitv  on  notes  given  by  the  town 
trea.snior,  the  Circuit  Court  held  that  although  the  vote  of  the 
town  moeting  standing  alone  did  not  give  the  treasurer  general 
authority  to  borrow  money  and  to  act  as  general  agent  in  that  rc- 
giinl,  yet  that  the  evidence  was  suflicient  to  authorize  the  jury  to 
\m\  tliat  the  town  voters,  by  continuous  and  anirmative  action 
ami  conduct  at  their  town  meetings,  knowing  that  their  treasurer 
hail  ge'iicrally  and  freely  borrowed  money  and  given  notes  under 
that  vote,  had  nmde  him  in  fact  their  general  agent  for  that  pur- 
pose ;  had  held  him  out  to  the  plaintiff  as  such,  and  had  ratified 
his  acts,  and  were  estopped  from  denying  their  validity.  But  the 
Unitiul  States  Su|»reme  Court  reversed  this  decision.^  They  held 
that  towns,  such  as  those  in  the  New  England  States,  dilTer  from 
trading  companies,  and  even  from  municipal  corporations  else- 
wlieiv.  They  are  territorial  corporations,  into  which  the  State  is 
dividoil  by  the  legislature  from  time  to  time,  at  its  discretion,  for 
political  purposes  and  the  convenient  administration  of  govern- 
ment. They  have  those  powers  only  which  have  been  expressly 
conferred  upon  them  by  statute,  or  which  are  necessary  for  con- 
ducting municipal  affairs;  and  all  the  members  of  the  town  are 
menibors  of  the  quani  corporation.^  A  town  cannot  make  a  con- 
tract or  authorize  any  officer  or  agent  to  make  one  on  its  behalf, 
except  by  vote  in  a  town  meeting  duly  notified  or  warned  ;  and 
the  notice  or  warning  must  specify  the  matter  to  be  acted  on,  in 
order  that  all  the  inhabitants  whose  property  will  be  subject  to  be 
taken  on  execution  to  satisfy  the  obligations  of  the  town,*  may 
know  in  advance  what  business  is  to  be  transacted  at  the  meeting. 
If  the  subject  of  the  vote  is  not  specified  in  the  notice  or  warning, 
tlic  vote  has  no  legal  effect,  and  binds  neither  ibc  town  nor  the 
inhabitants.  No  one  can  rely  upon  a  vote  as  giving  him  any  rights 
against  the  town,  without  proving  a  sufficient  notice  or  warning  of 
the  meeting  at  which  the  vote  was  passed.^    Any  ratification  of 


1  Conoonl  v.  Robinson,  121  U.  S.  165; 
Wells  V.  Supervisors,  102  U.  S.  625,  631; 
Ogdeii  V.  County  of  Daviess,  lb.  634,  639. 

''  Bloonitiuld  V.  Charter  Oak  Bank,  121 

r.  s.  121. 

'  Oiaiiby  V.  Thurston,  23  Conn.  416  ; 
WAster  V.  Harwinton,  32  Conn.  131. 

*  Atwater  v.  Woodbridge,  6  Conn.  223, 
228;  McLoud  f.  Selby,  10  Conn.  390; 
Beaidslcy  v.  Smith,  16  Conn.  368;  6  Dane 
Ab.  158 ;  Chase  v.  Merrimack  Bank,  19 


Pick.  564,  569;  Ga.skill  v.  Dudley,  6  Mot. 
546;  Adams  v.  Wisoasset  Bank,  1  Greenl. 
361  ;  B'ernald  v.  Lewis,  6  (Jreenl.  264 ; 
Hopkins  v.  Elmore,  49  Vt.  176. 

6  Reynolds  v.  New  Salem,  6  Met.  340  ; 
Stoughton  School  District  v.  Atherton, 
12  Met.  105;  Moor  v.  Newfield,  4  Greenl. 
44.  See  Brunswick  Fir.st  Parish  v.  Mc 
Kean,  4  Greenl.  508  ;  Thayer  v.  Stearns, 
1  Pick.  109;  Gilmore  v.  Holt,  4  Pick.  258; 
Hayden  v.  Noyes,  5  Conn.  391 ;  Willard 


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410 


COMMENTARIES  ON  SALES. 


[book  II. 


an  act  previously  unauthorized  must,  in  order  to  bind  the  princi- 
pal, be  with  full  knowledge  of  all  the  material  facts,*  and  no  es- 
toppel in  pais  can  be  created  except  by  conduct  which  the  person 
setting  up  the  estoppel  has  the  riglit  to  rely  upon,  and  does  in  fact 
rely  and  act  upon.'*  And  the  vote  of  those  who  attend  a  town- 
meeting,  being  of  no  validity  against  the  town  or  its  inhabitanta, 
unless  t!:e  object  of  the  vote  is  set  forth  in  the  notice  or  .iruing 
of  the  meeting,  the  town  can  no  more  ratify  an  act  afterwards 
than  authorize  it  beforehand,  except  by  vote  passed  pursuant  to  a 
previous  notice  specifying  the  object.  Without  the  indispensable 
prerequisite  of  such  a  notice,  those  present  at  a  town-mooting 
have  no  greater  power  to  bind  the  town  indirectly  by  ratification 
or  estoppel,  tlian  they  have  to  bind  it  directly  by  an  original  vote." 
And  the  court  concluded*  that,  upon  the  whole  case,  there  was  no 
proof  of  original  authority,  or  of  subsequent  ratification,  or  of  es- 
toppel, to  bind  the  defendant  town.  None  of  original  authority, 
for  want  of  any  vote  passed  pursuant  to  due  notice  in  the  warn- 
ing ;  none  of  ratification,  for  the  same  reason,  as  well  as  bocaiise 
it  was  not  shown  that  the  acts  proved  were  done  with  intent  to 
ratify  the  acts  of  the  treasurer  in  issuing  the  notes  sued  on,  or 
with  knowledge  of  all  the  material  facts  attending  their  issue; 
none  of  estoppel,  because  there  was  no  evidence  of  any  acts  of  the 
town  which  the  plaintiff  had  a  legal  riglit  to  rely  upon,  or  did  in 
fact  rely  upon,  in  taking  the  notes.^ 

Where  bonds  on  their  face  exclude  the  possibility  of  their  hav- 
ing been  legally  issued,  recitals  or  certificates  of  the  officers  of  the 


i>.  Killingworth,  8  Conn.  247, 254;  Brown- 
ell  i>.  I'lilnier,  '22  Conn.  107  ;  Avery  v. 
Stewart,  1  t'ush.  496  ;  Fleelier  v.  Fuller, 
120  U.  S.  534;  State  v.  TalF,  37  Conn.  392; 
Isbell  V.  New  York  &  New  Haven  R.  R., 
25  Conn.  556  ;  Society  Cor  Savings  v.  New 
London,  29  Conn.  174  ;  Haldwin  v.  North 
Brantl'onl,  32  ("onn.  47;  New  Haven,  M. 
&  W.  R.  H.  Co.  V.  Cliathain,  42  Conn. 
465  ;  Brooklyn  Trust  Co.  r.  Hebron,  61 
Conn.  22,  29. 

1  (Swings  V.  Hull,  9  Pet.  607  ;  Ben- 
neck(!  V.  Insurance  Co.,  105  U.  S.  355. 

■•2  Burgess  v.  Seliginan,  107  U.  S.  20; 
Seovill  V.  Tliayer,  105  U.  S.  143;  Brant  v. 
Virginia  Co.,  93  V.  S.  326. 

8  .Marsh  v.  Fulton  County,  10  Wall. 
676  ;  Daviess  County  i>.  Dickinson,  117 
U.  S.  657;  Norton  v.  Shelby  County,  118 
U.  S.  425;  Pratt  v.  S wanton,  15  Vt.  147; 
Landi'r  v.  Sinitlifield  School  District,  33 
Me.  239  ;  American  Tube  Works  v.  Bos- 
ton Macliiiie  Co.,  139  Mass.  5.  And  see 
Sharon  v.  Salisbury,  29  Conn.  113  ;  Ladd 
V.  Franklin,  37  Conn.  53 ;  Goff  v,  li.,ho- 


both,  12  Met.  26 ,  Burlington  v.  New 
Haven  &  Northampton  Co.,  2G  Conn. 
51;  Benoit  v.  Conwav,  12  Alien,  487; 
Arlington  v.  Pierce,  122  Mass.  270;  IJean 
V.  Hvde  Park,  143  Mass.  245;  Kinsley  i'. 
Norris,  60  N.  H.  131 ;  Railroad  li;ink  f. 
Lowell,  109  Mass.  214;  Agawaiu  liiuiki'. 
South  Hadley,  128  Mass.  503. 

*  Bloomfield  v.  Cliarter  Oak'  Hank,  lil 
U.  S.  137. 

^  See  Concord  v.  Robinson,  1'21  V.  S, 
165,  as  to  municipal  bonds,  invniiil  in  tiie 
hands  of  purchasers  befon;  maturity  wilb- 
out  notice,  notwithstanding  tlu-ii'  roiitals, 
their  issue  having  been  without  st.Untory 
authority.  See  also  Middh'iiort  r.  .Etna 
Life  Insurance  Co.,  82  111.  5»)2,  .">tiS;  As- 
pinwall  V.  County  of  Daviess,  22  IIdw.  364; 
Wadsworth  v.  Supervisors,  102  V.  S.  534; 
Crow  V.  Oxford,  im  U.  S.  215  ;  Katzem- 
bergeri;.  Aberdeen,  121  V.  S.  172;  Dixon 
County  r.  Fiel.l,  111  U.  S.  92;  Sykes  f. 
Mayor  of  Columbus,  55  Miss.  115;(liiuinila 
County  Supervi-sors  v.  Brogden,  112  U.  S. 
27L 


PART  v.] 


CORPORATIONS. 


411 


municipality  that  they  were  legally  issued  will  not  avail  to  render 
such  bonds  legal.  Recitals  or  certificates  reciting  the  actual  facts, 
Uiid  alleging  that  thereby  the  bonds  were  conformable  to  the  law, 
when,  judicially  speaking,  they  were  not,  will  not  make  them  so  ; 
nor  will  such  recitals  or  certificates  work  an  estoppel  upon  the 
luunicipality  to  claim  the  protection  of  the  law.^ 

The  doctrine  which  gives  validi./  to  acts  of  officers  de  facto, 
whatever  defects  there  may  be  in  the  legality  of  their  appointment 
or  elect  ion,  is  founded  I'.pon  considerations  of  policy  and  neces- 
sity, for  tljc  protection  of  the  public  and  individuals  whose  inter- 
ests may  be  affected  thereby  ;  offices  are  created  for  the  benefit  of 
the  public,  and  private  parties  are  not  permitted  to  inquire  into 
the  title  of  persons  clothed  with  the  evidence  of  such  offices,  and 
in  apparent  possession  of  their  powers  and  functions.  For  the 
good  order  and  peace  of  society,  their  authority  is  to  be  respected 
and  obeyed  until  in  some  regular  mode  prescribed  by  law  their 
title  is  investigated  and  determined.  It  is  manifest  that  endless 
confusion  would  result  if  in  every  proceeding  before  such  officers 
their  title  could  be  called  into  question.  But  the  idea  of  an  offi- 
cer implies  the  existence  of  an  office  which  he  holds.  It  would  be 
a  misapplication  of  terms  to  call  one  an  officer  who  holds  no  office, 
and  a  j)ublic  office  can  only  exist  by  force  of  law.  An  unconsti- 
tutional act,  which  in  terms  creates  an  office,  does  not,  by  the 
apparent  existence  of  the  ofiice,  give  validity  to  the  acts  of  the  as- 
sumed incumbent.  An  unconstitutional  act  is  not  a  law.  It  con- 
fers no  rights  ;  it  imposes  no  duties ;  it  affords  no  protection  ;  it 
creates  lo  office  ;  it  is,  in  legal  contemplation,  as  inoperative  as 
though  it  had  never  passed.^ 


1  Ciow7>.  Oxford,  119 U.  S.  215;  Dixon 
County  I'.  F\-l(l.  Ill  U.  S.  8a.  If  the 
otlii'cis  iiiithori/.ed  to  issue  bonds  ujioii  a 
coiiilition  are  not  tlie  appointed  trilmiuil 
to  ilecidu  tlie  fact  which  constitutes  tl»e 
coiHlitloii,  tlu'ir  rc'.citiil  will  not  he  iioci'ptcd 
as  u  siibstituto  for  proof.  In  otlu-r  words, 
wlu'io  the  validity  of  n  bond  depends  u])on 
an  cstop]iel,  I'luimed  to  arise  upon  the  re- 
litiils  (>('  the  in-itruuieiit,  the  question  lie- 
M'^  IS  to  tlie  existence  of  power  to  issue 
tlii'iii,  it  is  necessary  to  estalilish  that  the 
oltiiH'is  exeeutinj;  the  bonds  hud  lawful 
aiitliority  to  make  the  recitals  and  to 
make  tliein  conclusive.  The  very  ground 
I'f  tli(  estoppel  is  that  the  recitals  are  the 
nliiiial  stateuR'tits  of  those  to  whom  the 


the  judj^ments  have  depended  upon  tho 
question  whether,  in  the  purtieular  ease 
under  consideration,  a  fair  copstruetion  of 
the  law  authorized  the  officers  is.suing  the 
i)omls  to  ascurtiin,  determine,  and  certify 
the  existence  of  the  facts  upon  which  their 
jiower  by  the  terms  of  the  law  was  nuido 
to  <lepend,  not  including  that  class  of 
oases  in  which  the  controversy  related,  not 
to  conditions  precedent,  on  which  the  right 
to  act  at  all  depended,  but  upon  condi- 
tions affecting  only  the  niwle  of  exercising 
a  power  admitted  to  have  come  into  be- 
ing. Mnri\y  V.  Township  of  Oswego,  92 
U.  S.  C37 ;  Commissioners  of  Douglas 
County  V.  DoUes.  94  U.  S.  104  ;  ('o?ninis- 
fiioncrs   of  Marion  County  v.   Clark,  Pj. 


law  rel'irs  the  public  for  authentic   and  278;  County  of  Warren  r.  Marcy,  97  U.  S. 

final  inrorination  on  the  subject.     This  is  96  ;  Pana  v.  Bowler,  107  U.  S.  529. 
tlic  rule  which  1ms  f)een  constantly  r.pidied  '^  Norton  v    S'<elby  County,  118  U.  S. 

Inthe  Supreme  Court  of  the  United  States  42.");  Hildreth  «.  Mclntyre,  1  J.  J.  Marsh, 

ill  the  numerous  cities  in  which  it  has  been  206;   Carloton  v.  Tlie   People,   10  Mieh. 

iuvolvcd.    The  dilfereucea  in  the  result  of  250,  259.     See  Th«  State  i>.  Carroll,  3S 


I 


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412 


COMMENTARIES  ON   SALES. 


[book  II. 


The  court,  in  Nortou  v.  Shelby  County,*  where  it  wa  claimed 
that  bonds  of  the  county,  which  had  been  issued  without  author- 
ity, were  subsequently  ratified,  in  holding  that  the  bonds  were 
.  invalid,  adopted  the  principles  laid  down  in  Marsh  v.  Fulton 
County ,2  that  a  ratification  is,  in  its  effect  upon  the  act  of  an 
agent,  equivalent  to  the  possession  by  him  of  a  previous  authority. 
It  operates  upon  the  act  ratified  in  the  same  manner  as  though 
the  authority  of  the  agent  to  do  the  act  existed  originally.  It 
follows  that  a  ratification  can  only  be  made  when  the  party  rati- 
fying possesses  the  power  to  perform  the  act  ratified.  Officials 
who  iiad  no  power  to  make  a  subscription  in  the  first  instance 
without  a  vote  of  the  county,  could  not  ratify  such  subscription 
without  such  authorization.  It  would  be  absurd  to  say  that  tliuv 
could  without  such  vote,  by  simple  expressions  of  approval,  or  in 
some  other  indirect  way,  give  validity  to  acts,  when  they  were  in 
terms  directly  prohibited  by  statute  from  doing  those  acts  until 
after  such  vote  was  had.  That  would  be  equivalent  to  saying  that 
an  agent,  not  having  the  power  to  do  a  particular  act  for  his  jtrinci- 
pal,  could  have  validity  given  to  such  act  by  its  indirect  recognition.^ 


Conn.  449;  Taylor  v.  Skiine,  3  Brev.  516; 
Cocke  V.  Halsey,  16  Pet.  71  ;  Clark  v. 
Commonwealth,  29  Va.  St.  129;  Brown  v. 
O'Conuell,  36  Conn.  432;  Blackburn  v. 
The  State,  3  Head,  690;  Fowlor  v.  Beebe, 
9  Mass.  231.  In  Daviess  County  v.  Diek- 
inscMi,  117  U.  S.  657,  it  was  licld  that 
bonds  issued  in  excess  of  the  statutory 
limits  were  invalid  and  void  even  in  the 
hands  of  a  bond  Jidc  purchaser  for  value, 
without  notice  and  before  maturity;  and 
that  an  ollicer's  certificate  of  a  fiet  which 
he  had  no  authority  to  dete mine  was  of 
no  legal  etfect,  and  did  i)jt  estop  the 
municipality  from  showing  that  all  the 
bonds  whicli  were  is.^ued  alter  the  statu- 
tory limit  had  been  reached  were  void. 
See  Dixon  County  v.  Field,  111  U.  S.  83. 

'  118  Mass.  425. 

a  10  Wall.  676,  684. 

'  See  County  of  Daviess  v,  Dickinson, 
117  U.  S.  657;  McCracken  v.  City  of  San 
Francisco,  16  Cal.  591,  623  ;  Aspinwall 
V.  Commissioners  of  Daviess  County,  22 
How.  364;  Wadsworth  v.  Supervisors,  102 
U.  S.  534.  A  town  hnviug  no  general 
power  to  issue  negotiable  bonds,  but  hav- 
ing power  to  issue  bonds  for  certain  spe- 
cilieil  municipal  purposes,  was  sued  on 
bonds  which  contained  no  statement  of 
the  purpose  for  which  they  were  Issued, 
and  no  recital  which  could  bind  the  town 
by  way  of  estoppel.  The  court  hehl  that 
the  plaintiff  was  bound  to  allege  and  prove 
the  authority  of  the  town  to  issue  them, 
and  a  demurrer  to  a  declation  which  con- 


tained no  such  averment  was  sustaiiKd. 
Hopper  V.  Corington,  118  U.  S.  ]4S; 
Pumpclly  V.  Green  Bay  Co.,  13  Wiill.  Iiio", 
175;  Cragin  v.  Lovell,  109  U.  S.  ]ii4; 
Kennard  v.  Cass  County,  3  Dill.  147; 
Broome  v.  Taylor,  76  N.  Y.  564  ;  Cot- 
ton V.  New  Providence,  18  Vrooni,  401. 

When  a  ooi'poration  has  power  uiuli-r 
any  circumstances  to  issue  negotiable  scrii- 
ritics,  the  bond  fide  holder  has  a  rii,'lit  to 
presume  they  were  issued  under  the  cir- 
cumstances which  give  the  requisite  au- 
thority, and  they  are  no  more  liable  to  te 
impeached  for  any  infirmity  in  the  haiuls 
of  such  a  holder  than  any  other  cotmiier- 
cial  paper.  Gelpcke  v.  Dubuipie,  1  Wall. 
175,  203;  Supervisors  v.  Schenck,  5  Wall. 
772,  784;  Lexington  v.  Butler,  14  Wall. 
282,  296  ;  San  Antonio  v.  MehatlV,  % 
U.  S.  312,  314;  Macon  County  v.  ."^ii'Mcs, 
97  U.  S.  272,  279.  But  the  circumstances 
referred  to  in  those  cases  were  the  \m- 
liminary  facts  re([uisite  to  the  exercise  of 
the  power,  not  the  limits  fixed  by  law  of 
the  objects  and  purposes  for  wliiili  tlie 
power  could  he  exercised  at  all.  In  each 
of  those  cases  the  defects  suggesteil  were 
in  the  retpiisite  preliminary  proeeeiliiigs, 
and  the  bonds  sued  on  appeared  by  lecitals 
on  their  face  to  have  been  fssued  accord- 
ing to  law.  When  the  law  confers  no  au- 
thority to  issue  the  bonds  in  (piestinn,  tlie 
mere  fact  of  their  issue  cannot  bind  the 
town  to  [lay  them  even  to  a  purchaser  !«- 
fore  maturity  and  for  value.  Jiarsli  r. 
Fulton  County,  10  Wall.  676 ;  Eait  Oak- 


PART  v.] 


CORPORATIONS. 


413 


The  Court  of  Errors  of  New  Jersey  decided  ^  that  purchasers 
of  bonds  issued  under  a  statute  limiting  the  amount,  had  the  right 
to  roly  on  the  decision  of  the  commissioners  as  concUisive  in  re- 
s])ect  to  tlie  amount  that  could  be  put  out  under  the  statute.  In 
Now  Providence  v.  Halsey,^  the  United  States  Supreme  Court  con- 
curred in  these  decisions,  and  held  that  when  the  commissioners 
issued  bonds,  they  averred  that  the  issue  was  within  the  limit. 
Construing  the  act  by  the  rule  laid  down  in  New  Jersey,  the  le- 
gislative intent  that  their  decision  on  the  subject  should  be  final, 
appears.  The  holder  of  the  bonds  had,  therefore,  the  right  to  rely 
thereon,  and  bonds  issued  beyond  the  limit  would  be  enforceable.^ 

Where  State  revenue  bond  scrip  contained  a  provision  that  it 
would  be  received  in  payment  of  taxes,  the  court  held  that  it  was 
a  contract  with  the  holder  for  the  time  being,  who  has  taxes  to 
pay;  and  that  altlu  ugh  such  a  stipulation,  laithfully  executed, 
would  give  commercial  value  to  the  paper,  in  whosesoever  hands 
it  niinht  hai)pcn  to  be,  it  could  not  be  said,  as  a  matter  of  law, 
that  the  contract  was  broken  until  the  scrip  had  been  tendered  for 
taxes  due  from  a  holder,  and  been  refused  ;  nor  that  the  legal  right 
of  the  holder  was  threatened  unless  he  was  in  a  situation  to  make 
a  present  tender  for  that  purpose.  He  had  no  legal  right  to  have 
the  scrip  received  for  taxes,  unless  ho  owed  taxes  for  which  it  was 
receivable  ;  and  in  order  that  it  might  be  used  for  the  payment  of 
the  taxes  of  another,  he  must  transfer  it  to  the  new  holder,  and 
that  would  devest  himself  of  all  right  to  enforce  a  contract  to  which 
ho  was  no  longer  a  party,  and  in  which  he  had  ceased  to  have  a 
lojral  interest.* 

Where  the  liability  of  a  municipal  corporation  upon  negotiable 


laml  r.  Skinnor,  94  U.  S.  255;  Bunlianan 
r.  LiHiliclil,  102  U.  S.  278;  Dixon  County 
I'.  I'i.'lu.  Ill  II.  S.  83  ;  Hayes  v.  Holly 
Si'iiiiL's,  114  U.  8.  120  ;  Diwii'ss  County 
r.  IHrkinson,  117  IJ.  S.  er.T. 

'  Cotton  I'.  Now  Proviilence,  18  Vroom 
(47  X.  ,1.  L.),  401,  following  thii  ruin  laid 
down  in  Mutuiil  Benefit  Life  Ins.  Co.  v. 
KliziiliMth,  l:i  Vroom  (42  N.  J.  L.t,  235. 

-  117  r.  S.  33rt. 

'  Si'c  IVniard's  Townsliip  v.  i^itebbins, 
HW  r.  S.  ;541.  The  position  was  also  taken 
in  N.w  I'mvidenee  v.  Halsey,  1 17  IT.  S.  33(5, 
tliat  the  Imlder  of  the  bonds  could  not  re- 
covcron  thciu,  inasmuch  as  lie  got  them  by 
assii;iiiiii'nt  from  citizens  of  New  Jersey, 
who  iciuld  not  sue  in  the  courts  of  the 
I'nitcd  States,  and  ho  was  compelled  to 
rely  on  the  title  of  his  assignors  to  avoid 
till'  mattiis  jdaced  in  bar  to  the  action. 
But  the  court  held  that  a  municipal  bond, 
in  the  ordinary  form,  such  as  those  sued 
on,  is  a  promissory  note,  negotiable  by 


the  law  merchant,  within  the  meaning  of 
that  term  in  the  act  of  March  3,  1875,  18 
Stat.,  47o,  ch.  137,  §  1,  which  allows  a 
suit  on  instruments  of  that  class  to  be 
brought  in  the  courts  of  the  United  States 
by  an  assignee,  notwitlistaiuliug  a  suit 
could  not  liave  been  prosecuted  in  such 
court  if  no  assignment  had  been  made ; 
and,  therefoH',  that  it  was  u  matter  of  no 
importance  that  the  holder  made  title  to 
the  bonds  through  assignments  by  the 
citizens  of  New  .lersey.  To  the  same 
ell'ect  is  the  holding  in  Ackley  School 
Districts.  Hall,  113  U.  S.  135. 

«  Hagood  V.  Southern,  117  V.  S.  52  ; 
Marye  r.  Parsons,  114  IJ.  S.  325  ;  Wil- 
liams V.  Hagood,  98  U.  S.  72.  See 
Harshman  v.  Winterbott(un,  123  U.  S. 
215,  on  warrants  issued  in  Missouri,  re- 
ceivable as  payment  for  taxes.  See  Kast 
St.  Louis  V.  Zebley,  110  U.  S.  321  ;  Clay 
County  V.  McAleer,  116  U.  S.  616. 


1 


; 


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:  1 


ii '  ; 


M 


r 


I 


It.  i' 

■A 


111. 


flit* 


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If 


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If 


s 


il 


414 


C0M11ENTARIES  ON  SALES. 


[book  II. 


securities  depends  upon  a  local  statute,  the  rights  of  the  parties 
are  to  be  determined  according  to  the  law  as  declared  by  the  State 
courts  at  the  time  such  securities  were  made.  After  u  statute  lias 
been  settled  by  judicial  construction,  the  construction  becomes,  so 
far  as  contract  rights  are  concerned,  as  much  a  part  of  the  statute 
as  the  text  itself,  and  a  change  of  decision  is,  to  all  intents  and 
purposes,  the  same  in  effect  on  contracts  as  an  amendment  of  the 
law  by  means  of  a  legislative  enactment.^  But  when  contracts 
and  transactions  have  been  entered  into,  and  rights  have  accrupd 
thereon,  under  a  particular  state  of  the  decisions,  or  where  there 
has  been  no  decision  of  the  State  tribunals,  the  Federal  courts 
properly  claim  the  right  to  adopt  their  own  interpretation  of  the 
law  applicable  to  the  case,  although  a  different  interpretation  may 
be  adopted  by  the  State  courts  after  such  rights  have  accrued. 
But  even  in  such  cases,  for  the  sake  of  harmony  and  to  avoid  con- 
fusion, the  Federal  courts  will  lean  to  an  agreement  of  views  with 
the  State  courts  if  the  question  seems  to  be  balanced  with  doubt.- 

All  persons  taking  securities  of  municipalities  having  no  power 
to  issue  them,  except  as  specially  delegated  by  law  for  a  particu- 
lar purpose,  must  see  to  it  that  the  conditions  prescribed  for  the 
exercise  of  the  power  existed.  As  an  essential  preliminary  to 
protection  as  a  bond  fide  holder,  autliority  to  issue  them  must  ap- 
pear. If  such  authority  did  not  exist,  the  doctrine  of  protection 
to  a  bond  fide  purchaser  has  no  application.  This  is  the  rule  even 
with  commercial  paper  purporting  to  be  issued  under  a  delegated 
authority.  The  delegation  must  be  first  established  before  the 
doctrine  can  come  in  for  consideration. ^ 

There  is  a  class  of  cases  where  recitals  in  obligations  are  held 
to  supply  such  proof  of  compliance  with  the  special  authority  del- 
egated as  to  preclude  the  taking  of  any  testimony  on  the  subject, 
and  estop  the  obligor  from  denying  the  fact.  These  have  gener- 
ally arisen  upon  municipal  bonds,  authorized  by  statute,  upon  the 
vote  of  the  majority  of  the  citizens  of  a  particular  city,  county,  or 
town,  and  in  which  certain  persons  or  officers  are  designated  to 
ascertain  and  certify  as  to  the  result.  If,  in  such  cases,  tlie  bonds 
refer  to  the  statute,  and  recite  a  compliance  with  its  provisions, 
and  have  passed  for  a  valuable  consideration  into  the  hands  of  a 


*  Green  County  v.  Camess,  109  U.  S. 
105  ;  Douglass  v.  County  of  Pike,  101 
U.  S.  677  ;  County  of  Kails  v.  Douglass, 
105  IT.  S.  728,  732  ;  Olcott  v.  Supervisors, 
16  Wall.  678 ;  City  v.  Lainsou,  9  Wall. 
475,  485  ;  Boyd  v.  Alabama,  94  U.  S. 
645 ;  Taylor  v.  Ypsilauti,  105  U.  S.  60, 
71;  Thompson  v.  Lee  County,  3  Wall.  327, 
830 ;  Brown  v.  Mayor,  63  N.  Y.  239,  244. 


5"  Burgess  v.  Seligman,  107  U.  S.  2rt. 
33  ;  Anderson  v.  Santa  Anna,  IIG  U.  S. 
356. 

'  Merchants'  Bank  v.  Bergoii  County, 
115  U.  S.  384:  The  Floyd  Acceptances, 
7  Wall.  666,  676  ;  Marsh  v.  Fulton,  10 
Wall.  676;  Mayor  v.  Ray,  lU  Wall. 
468. 


PART  v.] 


CORPORATIONS. 


416 


bond  fide  purchaser,  without  notice  of  any  defect  in  the  proceed- 
ings, the  municipality  is  held  to  be  estopped  from  denying  the 
truth  of  the  recitals.  The  ground  of  the  estoppel  is  that  the  offi- 
cers issuing  the  bonds  and  inserting  the  recitals  are  agents  of 
the  municipality,  empowered  to  determine  whether  the  statute 
has  been  followed,  and  thus  bind  the  municipality  by  their 
(letennination.^ 

Even  a  bond  fide  holder  of  a  municipal  bond  is  bound  to  show 
legislative  authority  in  the  issuing  body  to  create  the  bond.  Re- 
citals on  the  face  of  the  bond  or  acts  in  pais,  operating  by  way  of 
estoppel,  may  cure  irregularities  in  the  execution  of  a  statutory 
power,  but  they  cannot  create  it.  If  legislative  authority  is  want- 
ing, the  bonds  have  no  validity.  And  where  bonds  have  been  is- 
sued without  legislative  authority,  as  a  subscription  to  stock,  if 
the  legislature  intend  to  legalize  them,  they  must  do  so  openly, 
intelligently,  and  in  language  not  to  be  misunderstood  ;  and  as  a 
doubtful  or  obscure  declaration  would  not  be  justifiable,  so  it  is 
not  to  be  imputed.^ 

In  an  action  brought  by  a  State  against  the  officers  and  stock- 
holders of  a  railroad  company,  the  bonds  of  which  company  were 
indorsed  by  the  State,  on  demurrer  to  the  declaration,  it  was  held 
that  as  the  liability  of  the  defendants  to  the  State  was  only  statu- 
tory, there  could  be  no  recovery  unless  the  facts  stated  in  the 
declaration  are  such  as  to  bring  the  defendants  within  the  opera- 
tion of  the  liability  clauses  in  the  statutes.^ 

Where  bonds  were  held  void  as  having  been  issued  by  a  muni- 
cipality in  excess  of  authority,*  the  court  held  that  the  holders  of 
such  bonds,  and  the  agents  of  the  city,  being  particeps  criminis  in 
the  act  of  violating  a  constitutional  prohibition,  equity  would  no 
more  raise  a  resulting  trust  in  favor  of  the  bondholders,  than  the 
law  would,  against  public  policy,  raise  an  implied  assumpsit 
against  the  municipality.'' 

By  act  of  the  legislaiuio  of  Illinois,  of  Feb.  14, 1863,  sect.  4, 
clause  3,  the  city  council  of  Quincy  was  empowered  to  levy  and 
collect,  "  to  pay  the  debts  and  meet  the  general  expenses  of  said 
city,"  not  exceeding  fifty  cents  on  each  f  100,  per  annum,  on  the 
assessed  value  of  the  real  and  personal  property  in  the  city.    The 


'  Northern  Bank  of  Toledo  v.  Porter 
Township  Trustees,  110  U.  S.  608  ;  Dixon 
County  w.  Field,  111  U.  S.  83. 

"^  Hiiyes  «;.  Holly  Springs,  114  U.  S. 
120  ;  Stiito  I'.  Stoll,  17  Wall  425,  436. 

'  Alabama  v.  Burr,  115  U.  8.  413. 

♦  Biiclmnan  v.  Litchfield,  102  U.  S.  278 

«  Litchfield  V.  Ballou,  114  U.  S.  190. 
Seethe  Tennessee  Bond  Cases,  114  U.  S. 


663,  as  to  the  construction  of  the  Tennes- 
see act  of  February  11,  1852,  as  to  whether 
a  lien  given  to  the  State  on  a  railroad  sys- 
tem, to  secure  the  payment  of  bonds  issued 
by  the  State  to  the  railroad  company,  en- 
ured to  the  benefit  of  the  bondiiolders. 
See,  also.  Hand  v.  Savannah  &  Charleston 
R.  R.  Co.,  12  S.  C.  314 ;  Sinking  Fund 
Cases,  99  U.  S.  700,  725. 


:i 


r; 


r 


1^ 

■  \ 


416 


COMMENTARIES  ON  SALES. 


[book  II. 


court  held  that  this  related  to  debts  and  expenses  incurrbd  for  or- 
dinary municipal  purposes,  and  not  to  indebtedness  arising  from 
railroad  subscriptions,  the  authority  to  make  which  was  not  im- 
plied from  any  general  grant  of  municipal  power,  but  was  ex- 
pressly CO  ifcrred  by  statute.^ 

The  general  grant  of  legislative  power  in  the  constitution  of  a 
State  does  not  enable  the  legislature  to  authorize  counties,  cities, 
or  towns,  to  contract,  for  private  objects,  debts  which  must  be 
paid  by  taxes  ;  nor  can  it  authorize  them  to  issue  bonds  to  assist 
merchants  or  manufacturers,  whether  natural  persons  or  corpora- 
tions, in  their  private  business.^  Thus,  bonds  issued  by  Missouri 
to  a  private  manufacturing  company,  formed  and  established  for 
the  purpose  of  carrying  on  and  operating  a  rolling-mill  for  the 
manufacture  of  railroad  iron,  expressed  to  be  issued  in  pursuance 
of  an  act  of  the  legislature,  were  void  upon  their  face  ;  the  act 
being  unconstitutional.^ 

Municipal  corporations  are  created  to  aid  the  State  government 
in  tlie  regulation  and  administration  of  local  affairs.  Tiicy  have 
only  such  powers  of  government  as  are  expressly  granted  tlicm, 
or  such  as  are  necessary  to  car..^  into  effect  those  that  are  granted. 
No  powers  can  be  implied  except  such  as  are  essential  to  tlie  ob- 
jects and  purposes  of  the  corporation  as  created  and  established. 
To  the  extent  of  their  authority  they  can  bind  the  people  and  the 
property  subject  to  their  regulation  and  governmental  control,  bv 
what  they  do,  but  beyond  their  corporate  powers  their  acts  are  of 
no  effect.  As  power  in  a  municipal  corporation  to  borrow  inonc) 
and  issue  bonds  therefor  implies  power  to  levy  a  tax  for  the  pav- 
ment  of  the  obligation  that  is  incurred,  unless  the  contrary  clearly 
appears,*  it  follows  that  the  power  contained  in  a  charter  to  bor- 
row money  does  not  authorize  the  issue  of  bonds  unless  they  were 
issued  for  a  corporate  purpose,  where  there  is  a  constitutional  pro- 
hibition against  taxation  by  the  municipality,  except  for  corporate 
purposes.  It  was,  accordingly,  held  in  Ottawa  v.  Carey ,^  where 
the  charter  conferred  all  the  powers  usually  granted  to  a  city  for 
tlie  purposes  of  local  government,  authorizing  the  imposition  of 
taxes  for  everything  which,  in  the  opinion  of  the  city  authorities, 


1  Quincy  v.  Jackson,  113  U.  S.  332 ; 
Qiiincy  v.  Cooke,  107  U.  S.  IH9  ;  Parkers- 
burg  V.  Brown,  106  U.  S.  487,  501  ;  Ralls 
County  V.  United  State.s,  105  U.  S.  733, 
735  ;  United  States  v.  County  of  Macon, 
99  U.  S.  582  ;  United  States  v.  New  Or- 
leans, 98  U.  S.  381,  393 ;  Loan  Associa- 
tion V.  Topeka,  20  Wall.  655,  660. 

•■'  Cole  V.  La  Grange,  113  U.  S.  1  ; 
Loan  Association  i>,  Topeka,  20  Wall. 
655  ;  Purkersburg  v.  Brown,  106  U.  8. 


487  ;  Allen  v.  Jay,  60  Me.  124 ;  Lowell 
V.  Bo.ston,  111  Mass.  4.54  ;  Weismer  v. 
Douglas,  64  N.  Y.  91  ;  In  re  Euivka  Co., 
96  N.  Y.  42  ;  Bissell  v.  Kankiikpi-,  64  111. 
249  ;  English  v.  People,  96  111.  566 ; 
Central  Branch  Union  Pac.  K.  R.  i- 
Smith,  23  Knns.  745. 

»  Cole  V.  La  Grange,  113  U.  S.  1. 

*  Rolls  County  Court  v.  The  United 
States,  105  U.  S.  733. 

6  108  U.  S.  110. 


PART  v.] 


CORPORATIONS. 


417 


would  promote  the  general  prosperity  and  welfare  of  the  munici- 
pality, the  city  was  not  invested  with  power  to  raise  money  by 
public  taxation  to  be  donated  to  private  persons  or  corporations, 
as  a  bonus  for  developing  the  water  power  in  the  city  or  its  vicin- 
ity, for  manufacturing  purposes,  and  that  bonds  for  such  purpose 
in  the  hands  of  purchasers  thereof  with  notice  of  the  object  for 
which  they  were  issued,  were  void.^ 

Merc  recitals  by  the  officers  of  a  municipal  corporation  in 
bonds  issued  in  aid  of  a  railroad  corporation  do  not  preclude  an 
inquiry,  even  where  the  rights  of  a  bond  fide  holder  are  involved, 
as  to  the  existence  of  legislative  authority  to  issue  the  bonds!"  In 
Northern  Bank  v.  Porter  Township,^  it  was  held  that,  as  was  held 
in  Anthony  v.  Jasper  County,'  purchasers  of  municipal  bonds  are 
charged  with  notice  of  the  laws  of  the  State,  granting  power  to 
make  the  bonds  they  find  on  the  market.  If  the  power  exists  in 
the  municipality,  the  bond  fide  holder  is  protected  against  mere 
irreirularities  in  the  manner  of  its  execution,  but  if  there  is  a 
want  of  power,  no  legal  liability  can  be  created.  So  that,  while 
the  township  is  estopped  by  the  recitals  in  the  bonds  from  saying 
that  no  township  election  was  held,  or  that  it  was  not  called  and 


>  The  cftses  of  Haskett  v.  Ottawa,  99 
U.  S.  86,  and  Ottawa  v.  National  Bank, 

105  U.  S.  342,  were  decided,  as  was 
IKiiiited  out  in  Ottawa  v.  Carey,  108  U.  S. 
110, 118,  upon  the  ground  that  the  bonds 
in  suit  ajuK-ared  on  their  face  to  liave 
been  issued  for  municipal  purjioses,  and 
were  therclore  valid  in  the  hands  of  fcojct 
fide  liolders.  In  l-ivingston  v.  Darlington, 
101  V.  S.  407,  the  town  subscription  was 
towiinls  the  establishment  of  a  State  re- 
I'orm  school,  which  was  undoubtedly  a 
puhlic  purpose,  and  the  question  in  con- 
troversy Wits  whether  it  was  a  corporate 
puriiose,  within  the  meaning  of  the  con- 
stitution of  Illinois.  In  Burlington  v. 
Beaslcy,  94  U.  S.  310,  the  gristmill  lield  to 
be  ft  work  of  internal  improvement,  to  aid 
in  constructing  wliich  a  town  might  issue 
bonds  umler  tlie  statutes  of  Kansas,  was  a 
pubUe  mill  which  ground  for  toll  for  all 
customers.   See  Osborne  v.  Adams  County, 

106  U.  S.  181,  and  109  U.  S.  1  ;  Blair  v. 
Cuming  County,  111  U.  S.  363.  Sub- 
scriptions and  binds  of  towns  and  cities, 
under  legislative  authority,  to  aid  in  estab- 
lishing railroads,  liave  been  sustained  on 
tlie  same  ground  on  which  the  delegation 
to  railroad  corporations  of  the  sovereign 
right  of  eminent  domain  has  been  justified, 
—  the  aeeoniinodation  of  public  travel. 
Rogers  I'.  Hurlington,  3  Wall.  654  ;  Queens- 
bury  V.  Culver,  19  Wall,  83  ;  Loan  Asso- 
elation  i>.  Topeka,  20  Wall.  661,  662  ; 
Taylor  v.  Ypsilanti,  105  U.  S.  60.   Statutes 

VOL.  1.  27 


authorizing  towns  and  cities  tn  pay  boun- 
ties to  soldiers  have  been  upheld,  because 
the  raising  of  soldiers  is  a  public  duty. 
Middleton  v.  MuUica,  112  U.  S.  433; 
Taylor  v.  Thompson,  42  111.  9  ;  Hilbish 
V.  Catherman,  64  Pa.  l.''^  ;  State  v.  Rich- 
land, 20  Ohio  St.  362 ;  Agawam  v. 
Hampden,  130  Mass.  528,  534;  Montclair 
V.  Ramsdell,  107  U.  S.  154.  In  United 
States  V.  Dodge  County,  110  U.  S.  156, 
it  was  held  that  a  bridge  across  a  river 
is  a  work  of  internal  im))rovement  within 
the  scop(i  and  terms  of  the  Nebraska  act 
of  1869  (see  County  Commissioners  v. 
Chamiler,  96  U,  S.  205 ;  Fremont  Build- 
ing Association  v.  Sherwin,  6  Neb.  48), 
and  a  mandamus  was  granted  for  payment 
of  bonds  for  that  purpose.  In  Blair  i'. 
Cuming  County,  111  V.  S.  363,  it  was 
licld  that  improving  the  water-power  of  a 
river,  by  constructing  a  canal  for  water- 
power  purposes  to  propel  public  grist 
mills,  was  a  "  work  of  internal  imiirove- 
mont  of  a  public  nature,'  within  the 
Tiieaning  of  the  Nebra.ska  act,  Genl. 
Stat,  of  1873,  ch.  13,  §§  7,  14  (see 
Union  Pacific  R.  R.  v.  Commissioners,  4 
Neb.  450  ;  The  State  v.  Thorne,  9  Neb. 
458  ;  Dawson  County  v.  McNaniar,  10 
Neb.  276;  Traver  f.  Merrick  County,  14 
Neb.  327),  and  municipal  bonds  issued 
for  such  ])urpose  were  valid. 

2  110  U.  S.  608. 

8  101  U.  S.  693,  697. 


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;2MMENTABIES  ON  SALES. 


[book  II. 


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conducted  in  the  particular  mode  required  by  law ;  it  is  not  es- 
topped to  show  that  it  was  without  authority  of  the  legislature  to 
order  the  election  or  issue  the  bonds.  The  question  of  legislative 
authority  in  a  municipal  corporation  to  issue  bonds  in  aid  of  a 
railroad  company  cannot  be  concluded  by  mere  recitals  ;  but,  the 
power  existing,  the  municipality  may  be  estopped  by  recitals  to 
prove  irregularities  in  the  exercise  of  the  power ;  or,  when  the 
law  prescribes  conditions  upon  the  exercise  of  the  power  granted, 
and  commits  to  the  officers  of  such  municipality  the  determination 
of  the  question  whether  those  conditions  have  been  performed,  the 
corporations  will  also  be  estopped  by  recitals  which  import  sucli 
performance.* 

The  transfer  of  coupons  which  is  a  acre  contrivance,  a  pre- 
tence, the  result  of  a  collusive  arrangement  to  create  in  favor  of 
the  plaintiff  a  fictitious  ground  of  federal  jurisdiction,  so  as  to 
get  a  rc-examination  in  that  jurisdiction  of  the  question  decided 
adversely  to  the  owners  of  the  coupons  by  the  highest  judicial 
tribunal  of  the  State,  will  not  enable  the  plaintiff  to  maintain  an 
action  in  the  federal  courts  upon  such  coupons,  tlie  bonds  or  in- 
struments to  which  they  were  attached  not  having  been  assigned 
to  him,  but  having  been  issued  to  and  having  always  been  held  by 
the  assignor  of  the  coupons.''' 

Municipal  bonds  in  the  customary  form,  payable  to  bearer,  are 
commercial  securities,  possessing  the  same  qualities  and  incidents 
chat  belong  to  what  are  strictly  promissory  notes  negotiable  by  the 
law  merchant ;  and  when  issued  under  the  authority  of  law,  and 
made  payable  to  a  named  person,  or  order,  have  like  qualities 
and  incidents.  And  a  provision,  such  as  that  in  the  statute  of 
Iowa,  of  April  6, 1868,  that  bonds  issued  under  the  authority  of 
the  act  shall  be  "  payable  at  the  pleasure  of  the  district  at  any 
time  before  due,"  does  not  affect  the  complete  negotiability  of  the 
bonds,  for,  by  their  terms,  they  are  payable  at  a  time  which  must 
certainly  arrive ;  the  holder  could  not  exact  payment  before  the 


^  Northern  Bnnk  v.  Porter  Township, 
110  U.  S.  at  p.  618.  See  Dallas  County  v. 
McKenzie,  101  U.  3.  086  ;  Brookly  v.  In- 
surance Co.,  99  U.  S.  362.  See  County 
of  Macon  v.  Shores,  97  U.  S.  272,  as  to 
amendment  in  the  constitution  of  a  county 
not  affecting  acts  previously  authorized. 
Where  what  was  done  by  the  constitu- 
tional majority  of  the  qualified  electors, 
and  by  the  board  of  supervisors  of  the 
county,  would  have  been  legal  and  bind- 
ing upon  the  county  had  it  been  done 
under  legislative  authority  previously  con- 
ferred, subsequent  ratification  by  the  legis- 
lature, in  the  absence  of  constitutional 
restrictions  upon  such  legislation,  is  equi- 


valent to  original  authority.  Grenada 
County  Supervisors  v.  Brogdon,  112  U.  S. 
261 ;  Cutler  v.  Board  of  Supervisors,  56 
Miss.  115 ;  Supervisors  v.  Sohenek,  a 
Wall.  772  J  Ritchie  ».  Franklin,  22  Wall. 
167;  Thompson  v.  Lee  County,  3  Wall. 
327;  City  v.  Lamson,  9  Wall.  477,  485; 
St.  Joseph  V.  Rogers,  16  Wall.  644,  663; 
Campbell  v.  City  of  Kenosha,  5  Wall. 
194. 

*  Farmington  v.  Pillsburv,  114  U.  S. 
138 ;  Hawes  v.  Oakland,  104  U.  S.  450, 
459;  Hayden  v.  Manning,  106  U.  S.  586; 
Detroit  v.  Dean,  lb.  537,  541;  Bernard's 
Township  v.  Stebbins,  109  U.  S.  341. 


PART  v.] 


COBPOBATIONS. 


419 


day  fixed  in  the  bonds,  and  the  debtor  incurred  no  legal  liability 
for  non-payment  until  that  day  passed.* 

Prior  to  the  adoption  of  the  Illinois  constitution  of  1870,  an 
incorporated  city,  its  corporate  authorities  being  thereunto  author- 
ized by  the  legislature,  could  make  a  subscription  to  the  capital 
stock  of  a  railroad  company,  without  referring  the  question  of 
subscription  to  a  popular  vote.^  The  United  States  Supreme 
Court,  therefore,  held,  that  it  was  competent  for  the  legislature 
of  that  State  in  1869,  to  make  an  election  of  18G8  legal  and  bind- 
ing as  an  expression  of  the  popular  will,  and,  upon  tho  basis  of 
the  election  thus  legalized,  empower  or  authorize  the  corporate 
authorities  of  the  municipality  to  issue  the  bonds  for  the  amount 
indicated  by  the  popular  vote.^ 

By  the  charter  of  the  city  of  East  St.  Louis  it  was  provided 
that  the  city  council  should  levy  and  collect  a  tax  not  exceeding 
three  mills  on  the  dollar  upon  each  annual  assessment  made  for 
general  purposes  for  the  purpose  of  meeting  the  liability  on  the 
city  bonds ;  the  city  being  limited  to  an  assessment  of  one  per  cent 
per  annum  for  all  purposes.  The  United  States  Supreme  Court 
held  that  while  a  mandamus  would  lie  requiring  the  full  levy  of 
one  per  cent  and  the  devotion  of  three-tenths  thereof  to  the  pay- 
ment of  the  bonded  debt,  the  court  had  no  power  to  make  a  simi- 
lar order  with  reference  to  the  remaining  seven-tenths  required  for 
general  purposes ;  that  while  the  surplus  thereof  at  the  end  of  the 
year  might  be  subject  to  the  order  of  the  court,  the  question  what 
expenditures  were  proper  and  necessary  for  the  municipal  admin- 
istration, was  not  judicial,  but  was  confided  by  law  to  the  discre- 
tion of  tlie  municipal  authorities,  and  no  court  had  the  right  to 
control  that  discretion,  much  less  to  usurp  and  supersede  it.* 

Recitals  in  municipal  bonds,  containing  no  statement  of  any 
election  called  or  held,  or  of  the  vote  by  which  the  issue  of  the 
bonds  was  authorized,  and  not  even  embodying  a  general  state- 
ment that  the  bonds  were  issued  in  pursuance  of  the  statutes  to 
which  they  refer,  nor  saying  anything  whatever  as  to  any  com- 
pliance with  the  requirements  of  the  statute  in  respect  to  which 
the  municipal  officers  were  authorized  to  determine  and  certify, 
but  at  the  utmost  making  a  statement  that  the  subscription  for 
which  the  bonds  were  in  part  given  was  authorized  by  the  stat- 
utes mentioned,  serve  simply  to  point  out  the  particular  laws 

'  Ackley  School  District  v.  Hall,  113 
U-  S.  135.  See  New  Providence  v.  Halsey, 
117  U.  S.  336,  also,  as  to  negotiability  of 
municiiial  bonds. 

»  Keithsburgr.  Frick,  34  111.405,421; 
Quincy,  Mo.  &  Pac.  R.  B.  Co.  v.  Morris, 
84  III.  410;  Marshall  v.  Silliman,  61  111. 


218,  225;  Quincy  v.  Cook,  107  U.  S. 
549. 

«  Jonesboro  City  v.  Cairo  &  St.  Lonis 
R.  R.  Co.,  110  U.  S.  192. 

♦  East  St  Louis  v.  Zebley,  110  U.  8. 
S21. 


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420 


COMMENTARIES  ON  SALES. 


[book  II. 


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under  which  the  transaction  may  lawfully  have  taken  place,  but 
they  do  not,  even  as  to  bond  fide  holders,  w^ithout  notice,  consti- 
tute an  estoppel  which  prevents  inquiry  into  the  alleged  invalid- 
ity of  the  bonds.* 

Mere  political  bodies,  constituted  as  counties  arc,  for  the  pur- 
pose of  local  police  and  administration,  and  having  the  power  of 
levying  taxes  to  defray  all  public  charges  created,  whetlier  they 
are  or  are  not  formally  invested  with  corporate  capacity,  havo  »o 
power  or  authority  to  maice  and  utter  commercial  paper  of  any 
kind,  unless  such  power  is  expressly  conferred  upon  them  by  law, 
or  clearly  implied  from  some  other  power  expressly  given,  which 
cannot  be  fairly  exercised  without  it.'' 

The  legislature  of  a  State,  unless  restrained  by  its  organic  law, 
has  the  right  to  authorize  a  municipal  corporation  to  issue  bonds  in 
aid  of  a  railroad,  and  to  levy  a  tax  to  pay  the  bonds  and  the  interest 
on  them,  with  or  without  a  popular  vote,  and  to  cure  by  a  retrospec- 
tive act  irregularities  in  the  exercise  of  the  power  conferred.'* 

Bonds  purporting  to  have  been  issued  by  a  municipality,  but 
which  were  neither  signed  nor  registered,  in  accordance  witii  the 
statute  under  which  their  issue  was  authorized,  were  decided  to  be 
invalid.* 

Thei'c  must  be  authority  by  statute  for  every  issue  of  bonds  by 
a  municipality,  as  a  donation  to  any  railroad  or  other  work  of  in- 
ternal improvement.  Where  bonds  have  been  issued  without  war- 
rant of  law,  as  all  parties  are  equally  bound  to  know  the  law,  a 
certificate  verified  by  the  signature  of  the  municipal  ofiiccrs  and 
the  seal  of  the  municipality,  reciting  the  actual  facts,  and  that 
thereby  the  bonds  are  conformable  to  the  law,  when,  judicially 
speaking,  they  are  not,  will  not  make  them  so,  nor  can  it  work  an 
estoppel  upon  the  county  to  claim  the  protection  of  the  law ;  oth- 
erwise it  would  always  be  in  the  power  of  a  municipal  body,  to 
which  power  was  denied,  to  usurp  the  forbidden  authority  by  de- 
claring that  its  assumption  was  within  the  law.  This  would  sup- 
pose such  corporate  bodies  to  be  superior  to  the  law  itself. 


1  Carroll  County  v.  Smith,  111  U.  S. 
556  ;  Northern  Bank  of  Toledo  v.  Porter 
Township,  110  U.  S.  608  ;  Dixon  County 
V.  Fielil,  111  U.  S.  83;  School  District  v. 
Stone,  106  U.  S.  183. 

^  Claiborne  County  v.  Brooks,  111 
U.  S.  400,  406;  Police  Jury  v.  Britton,  15 
Wall.  566. 

8  Otoe  County  v.  Baldwin,  111  U.  S. 
1;  Thompson  v.  Lee  County,  3  Wall.  327; 
Camnhell  v.  City  of  Kenosha,  5  Wall.  194. 
See  Union  Trust  Co.  v.  Illinois  Midland 
Co.,  117  U.  S.  434,  where  necessary  ex- 
penses, incurred  subsequently  to  the  issue 
of  bonds  secured  by  a  mort^ige  by  a  rail- 


road company,  were  allowed  priority  over 
the  bonds.  See  also  Wallace  !•.  Looniis, 
97  U.  S.  146  ;  Miltenbcrgur  v.  I-oi,'.iiisiiort 
Ry.  Co.,  106  U.  8.  286,  311,  312;  L'liion 
Trust  Co.  V.  Souther,  107  U.  S.  iiltl ; 
Burnham  v.  Bowen,  111  U.  S.  77i) ;  Fns- 
dick  V.  Schall,  99  U.  S.  235,  i:>S,  2.^4 ; 
Mever  v.  Johnston,  53  Ala.  237;  Hoover 
V.  Montclair,  &c.  Ry.  Co.,  2  Sti-w.  {H 
N.J.  Eq.)  4. 

*  Bissel  V.   Spring  Valley  Towiisliip, 
110  U.  S.  162;  Anthony  v.  County  otJas- 

Ser,  101  U.  S.  693,  697;   McGarralian  v. 
Lining  Co.,  96  U.  S.  S16. 


PART  v.] 


CORPORATIONS. 


421 


In  Dixon  County  v.  Ficld,^  the  effect  of  recitals  in  municipal 
bonds  is  considered  at  length,  and  while  the  principle  is  conceded 
as  laid  down  in  Town  of  Coloma  v.  Eaves,"  that  where  it  may  be 
gathered  from  the  legislative  enactment  that  the  ofticcrs  of  the 
'luunicipality  were  invested  with  the  power  to  decide  wliether  the 
coiulltion  precedent  has  been  complied  with,  their  recital  that  it 
has  been,  made  in  the  bonds  issued  by  them,  and  held  by  a  bond 
fiile  purchaser,  is  conclusive  of  the  fact,  and  binding  upon  the 
uumifipality ;  for  the  recital  is  itself  a  decision  of  the  fact  by  the 
appointed  tribunal.  Yet  the  converse  of  this  is  embraced  in  the 
proposition,  and  is  equally  true.  If  the  officers  authorized  to  is- 
sue bonds,  upon  a  condition,  are  not  the  appointed  tribunal  to  de- 
cide the  fact,  which  constitutes  the  condition,  their  recital  will  not 
l)c  accepted  as  a  substitute  for  proof.  In  other  words,  where  the 
validity  of  the  bonds  depends  upon  an  estoppel,  claimed  to  arise 
upon  the  recitals  of  the  instrument,  the  question  being  as  to  the 
existence  of  power  to  issue  them,  it  is  necessary  to  establish  that 
the  oflicers  executing  the  bonds  had  lawful  authority  to  make  the 
recitals  and  to  make  them  conclusive.  The  very  ground  of  the 
cstop[)el  is  that  the  recitals  are  the  official  statements  of  those  to 
whom  the  law  refers  the  public  for  authentic  and  final  informa- 
tion on  the  subject.  This  is  the  rule  which  has  been  constantly 
applied  in  the  numerous  cases  in  which  it  has  been  involved.  The 
difference  in  the  result  of  the  judgments  has  depended  upon  the 
question  whether,  in  the  particular  case  under  consideration,  a  fair 
construction  of  the  law  authorized  the  officers  issuing  the  bond  to 
ascertain,  determine,  and  certify  the  existence  of  the  facts  upon 
which  their  power,  by  the  terms  of  the  law,  was  made  to  depend  ; 
not  including  that  class  of  cases  in  which  the  controversy  related, 
not  to  conditions  precedent,  on  which  the  right  to  act  at  all  de- 
pended, but  upon  conditions  affecting  only  the  mode  of  exercising 
a  power  admitted  to  have  come  into  being.^ 

On  the  principle  that  when  the  seal  of  a  party,  required  to  make 
an  instrument  valid  and  effectual  at  law,  has  been  omitted  by  ac- 
cident or  mistake,  a  court  of  chancery,  in  order  to  carry  out  his 
intention,  will,  at  the  suit  of  those  who  are  justly  and  equitably 
entitled  to  the  benefit  of  the  instrument,  adjudge  it  to  be  as  valid 
as  if  it  had  been  sealed,  and  will  grant  relief  accordingly,  either 
by  compelling  the  seal  to  be  affixed,  or  by  restraining  the  setting 


'  111  U.  S.  83. 

2  92  U.  S.  484. 

'  Marcy  v.  Township  of  Oswego,  92 
U.  S.  637 ;  Commissioners  of  Douglas 
County  V.  Belles,  94  U.  S.  104  ;  Commis- 
sionois  of  Marion  County  v.  Clark,  94 
U.  S.  278  ;  County  of  Warren  v.  Marcy, 


97  U.  S.  96 ;  Pnna  v.  Bowler,  107  U.  S. 
529 ;  Sherman  County  v.  Simons,  IDS 
U.  S.  735 ;  Buchanan  v.  Litchfield,  102 
U.  S.  278;  National  Bunk  v.  Porter  Town- 
ship, 110  U.  S.  608  ;  Anderson  County 
Commissioners  v.  Beal,  113  U.  S.  227. 


! 


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422 


COMMENTARIES  ON  SALES. 


[book  II. 


up  the  want  of  it  to  defeat  a  recovery  at  law,*  the  United  States 
Supreme  Court  held,  where  one  had  purchased  for  value,  in  ^uod 
faith,  municipal  bonds,  on  which  tlio  seals  had  been  omitted  by 
oversight  and  mistake,  and  without  observing  the  omission,  that 
a  court  of  equity  would,  at  his  suit,  decree  that  the  bonds  ho  held 
as  valid  as  if  actually  sealed  before  being  issued,  and  would  re- 
strain the  setting  up  of  the  want  of  seals  in  the  action  at  law.2 

Unless  power  has  been  given  by  the  legislature  to  a  municipal 
corporation  to  grant  pecuniary  aid  to  railroad  corporations,  all 
bonds  of  the  municipality  issued  for  such  a  purpose,  and  bearing 
evidence  of  the  purpose  on  their  face,  are  void  even  in  the  hands 
of  bond  fide  holders,  and  this  whether  the  people  voted  the  aid  or 
not.  Every  purchaser  of  such  a  bond  is  chargeable  in  law  with 
notice  of  the  want  of  power  in  the  municipal  authorities  to  bind 
the  body  politic  in  that  way.  It  is  a  matter  of  no  importance  that 
the  municipality  employed  agents  to  sell  the  bonds,  or  that  its  law 
officer  gave  an  opinion  in  favor  of  their  validity,  or  that  they  were 
recognized  in  otKcial  statements  as  binding  obligations,  or  that 
taxes  had  been  levied  to  pay  either  principal  or  interest.  Corpo- 
rate ratification,  without  authority  from  the  legislature,  cannot 
make  a  municipal  bond  valid  which  was  void  when  issued  for 
want  of  legislative  power  to  make  it.^ 

Where  it  becomes  necessary,  in  a  suit  on  bonds,  where  fraud  or 
illegality  in  their  inception  has  been  established,  for  the  holder  to 
show  that  the  bonds  were  purchased  1  r  value,  it  is  not  absolutely 
""cessary  that  he  should  show  that  he  purchased  for  value,  for,  if 
an^  "ovious  holder  of  the  bonds  in  suit  was  a  bond  fide  holder 
for  vaiu  'vO  plaintiff,  without  showing  that  he  had  himself  paid 
value,  coula  i.  "il  himself  of  the  position  of  such  previous  holder.^ 


1  Smith  V.  Aston,  Freem.  Ch.  308 ; 
8.  c.  Ciis.  Temp.  Finch,  273;  Cockerell  v. 
Cholmeley,  1  Riiss.  &  Myl,  418,  424; 
Wnddswovth  v.  Weiulfll,  5  Johns.  Ch. 
224 ;  iior.tvillo  e  Haughton,  7  Conn, 
643:  R'.tl;..n.l  v.  Paige,  24  Vt.  181;  Wiser 
V.  Dlaclily,  1  Johns.  Ch.  607;  Green  v. 
Mollis  S-.  -.ssex  R.  R.  Co.,  1  Beas.  165; 
2  M 'Cai'.,  469;  Druiff  v.  Parker,  L.  R. 
5  E(i.  131  ;  Drai)er  v.  Springport,  104 
U.  S.  501;  Harris  v.  Pepperell,  li.  R.  5 
Eq.  1;  Elliott  v.  Sackett,  108  U.  S.  132. 

*  Bernaril's  Township  v.  Stebbins,  109 
IJ.  S.  341.  Knox  County  Court  v.  United 
States,  109  U.  S.  229,  fellows  other  cases 
named  on  municipal  liability  for  bonds. 
See  Howard  County  v.  Paddock,  110  U.  S. 
384;  County  of  Callaway  v.  Foster,  93 
U.  S.  567,  as  to  effect  of  subsequent  legis- . 
lation  on  charters  of  railway  companies, 
and  on  municipal  bonds  as  subscriptions 
therefor. 


8  Lewis  V.  City  of  Shreveiwrt,  108  U.  S. 
282  ;  Wilson  v.  Siireveport,  '29  Lsi.  An. 
673.  In  Quincy  v.  Cook,  107  U.  S.  519, 
it  was  held  that  the  act  of  the  State  ii'jjis- 
lature  legalizing  an  ordinance  for  the  is- 
suing of  bonds,  which  ordinance  had  been 
Cassed  without  legal  authority,  rendered 
onds  issued  subseijuently  to  the  juissatfe 
of  the  act  valid.  And  see  Read  v.  I'lutts- 
mouth,  107  U.  S.  668.  An  act  einpinver- 
ing  a  city  to  issue  bonds  for  pniposes  of 
internal  improvements  was  held  to  ;ui- 
thorize  the  guaranty  of  a  city  to  the  bonds 
of  a  railroad  company.  City  of  Siivniiniili 
V.  Kelly,  108  U.  S.  184.  And  see  Green 
County  V.  Conness,  109  U.  S.  104.  On 
estoppel  by  recitals,  see  Sherman  County 
V.  Simons,  109  U.  S.  735;  Grenada  County 
Supervisors  v.  Brogden,  112  U.  S.  '2til. 

*  Montclair  v.  Kamsdell,  107  U-  ». 
147;  Hunter  v.  Wilson,  19  L.  J.  x- »• 
(Ex.)  8;  Commissioners  v.  BoUes,  94  U.S. 


PART  v.] 


COBPOBATIONS. 


428 


A  statute  authorized  a  township  to  subscribe  to  the  capital  stock 
of  any  railroad  company  within  tlio  State,  "  building  or  proposing 
to  luiild  a  railroad  into,  througli,  or  near  such  township."  Bonds 
were  issued  as  a  subscrijjtion  to  stock  of  a  railroad  company  pro- 
posing to  build  a  railroad  within  nine  miles  of  the  township.  The 
court  held,  reversing  the  decision  of  the  court  below,  that  the 
nearness  of  the  railroad  to  benefit  the  township,  was,  within  rea- 
souublc  limits,  a  question  which  the  people  of  the  township  and 
the  Connty  Court  of  the  county  were  qualified  and  authorized  to 
Hcttlo  for  themselves  ;  and  where  their  action  in  favor  of  such  sub- 
scription was  supplemented  by  payment  of  interest  for  three  years, 
the  court  should  acquiesce  in  the  determination  of  the  qualified 
voters  and  the  local  authorities  that  the  road  in  question  was 
"  near  "  to  the  township,  and  the  bonds,  as  between  the  township 
ami  a  bond  fide  holder  for  .value,  were  sustained.' 

Bonds  issued  under  the  law  of  the  State,  which  recite  that  the 
company  to  which  they  were  delivered,  by  a  municipality,  had 
fully  performed  the  conditions  upon  which  the  municipality  had 
promised  to  issue  the  bonds  ;  and  which,  after  their  issue,  and  be- 
fore the  maturity  of  the  first  coupons  thereto  attached,  were  sold, 
transferred,  and  delivered  to  a  bond  fide  purchaser,  for  full  value, 
with  no  knowledge  with  reference  to  the  manner  in  which  the 
bonds  have  been  issued,  except  what  he  derives  from  the  recitals 
in  the  bonds,  are  not  affected  by  an  act  of  the  legislature  passed 
several  months  after  the  performance  by  the  company  of  all  the 
conditions  on  which  the  bonds  were  issuable  by  the  municipality. 
Such  legislation  would  be  unconstitutional  and  void.^ 


104.  This  question  was  directly  adjudged 
ill  Cuiiiiiiissiunei's  v.  Bolles,  94  U.  S.  104. 
One  of  the  issues  there  was  whether  the 
pliiintilFs  were  bond  fide  holders  of  certain 
iniinii.'i|)iil  bonds.  After  stating  that  the 
legal  inesuniiition  was  that  they  were,  the 
court  said  ;  "  but  the  plaintilfs  are  not 
forced  to  rest  upon  mere  presumiition  to 
support  their  claim  to  be  considered  as 
havinj;  the  riglits  of  purchasers  without 
notice  of  any  defence.  They  can  call  to 
their  aid  the  fact  that  their  predecessors 
in  ownt'i'ship  were  such  purchasers.  To 
the  riiilits  of  tiie  predecessors  they  have 
succeeded.  Certainly  the  railroad  com- 
piiny  paid  for  the  bonds  and  coupons  by 
paying  an  equal  amount  of  their  stock, 
which  the  county  now  holds ;  and  nothing 
in  the  special  facts  found  shows  that  the 
company  knew  of  any  irregularity  or  fraud 
in  their  issue.  And,  still  more,  the  con- 
tractor for  building  the  road  received  the 
bonds  from  the  county  in  payment  for  his 
work,  either  in  whole  or  in  part,  after  hia 


work  had  been  completed.  There  is  no 
pretence  that  he  had  notice  of  anything 
that  should  have  made  him  doubt  their 
validity.  Why  was  he  not  a  bond  fide 
purchaser  for  value  ?  The  law  is  un- 
doubted, that  every  person  succeeding 
him  in  the  ownership  of  the  bonds  is 
entitled  to  stand  uiion  his  rif,dits." 

*  Kirk  bride  v.  Latayette  County,  108 
U.  S.  208.  See  Van  Hostrup  v.  Madison, 
1  Wall.  291  ;  Meyer  v.  Muscatine,  lb. 
884  ;  Howard  Countv  i'.  Hooneville  Central 
Nat.  Hank,  108  IJ.  S.  314. 

'•'  Ked  Kock  V.  Henry,  106  U.  S.  596. 

If  possible,  the  act  of  the  lef,'islature 
will  be  construed  so  as  to  relieve  the 
State  from  the  imputation  of  bad  faith. 
Broughton  v.  Pensacola,  93  U.  S.  266. 
And  will  not,  if  it  can  be  avoided,  be  held 
repugnant  to  the  act  under  which  the 
issue  of  the  lionds  was  authoiized,  and  an 
implication  of  repeal  of  the  prior  act  will 
not,  in  >.^ii  case,  readily  be  allowed. 
McCool  V.  Smith,  1  Black,  459;  United 


1 

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I  1 


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V. 


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424 


COMMENTARIES  ON  SALES. 


[book  II. 


♦,     i 


ia,iv:t;  i 


;ili:i  i; 


j||:|p;p'rf!; 


A  municipality  is  not  estopped  by  the  payment  of  interest  by  its 
officials,  from  denying  the  validity  of  its  bonds  which  have  l)eeii 
illegally  issued,  but  the  municipality  is  liable  to  account  to  the 
bond  fide  holders  of  such  bonds  for  the  proceeds  received  from 
the  original  purchasers,  less  such  payments  as  have  been  made  on 
the  bonds.^ 

County  bonds  issued  in  Missouri  by  a  de  facto  County  Court. 
sealed  with  the  seal  of  the  court,  and  signed  by  the  de  facto  presi- 
dent, cannot  be  impeached  in  the  hands  of  an  innocent  holder  bv 
showing  that  the  acting  pi'csident  was  not  de  Jure  one  of  the  jus- 
tices of  the  court.'^ 


states  V.  Tynen,  11  Wall.  88  ;  Wood  v. 
Uniti'd  States.  1(5  Pot.  312 ;  HoiHlorson's 
Tobacco,  11  Wall.  652;  King  v.  Coiucll,. 
106  U.  S.  3!)5  ;  Muidock  v.  City  ol' 
MiMiipliis,  20  Wall.  5!)0. 

Recitals  are  estopiK'ls  only  as  to  facts 
which  such  recitals  fairly  import.  Where 
the  holder  relies  for  protection  u|>on  mere 
recitals,  they  should,  at  least,  be  clear 
and  uiianibij,'Uous,  in  order  to  e.stop  a 
niuniei))al  corjioration  in  whose  name 
such  bonds  have  been  made,  from  show- 
ing that  they  were  issued  in  violation,  or 
without  authority,  of  law.  School  Dis- 
trict V.  Stone,   lOd  U.  S.   183. 

1  Parkersburg  v.  Brown,  106  U.  S.  487. 
Where  there  has  been  a  total  want  of 
po.vcr  to  issue  the  bonils  originally,  under 
any  circumstances,  and  not  a  mere  failure 
to  comply  with  prescribed  requirements  or 
conditions,  the  case  is  not  or.e  for  apply- 
ing to  the  municipality,  under  any  state 
of  facts,  any  doctrine  of  estopi>el  or  ratiti- 
cation,  by  reason  of  its  liaving  j)aid  some 
instalments  of  interest  on  the  bonds  (Loan 
Association  v.  Toi)ekri,  20  Wall.  655),  or 
by  reason  of  any  nf  ilie  lets  of  its  olli>\ers 
or  agents  in  dealing  with  the  property 
covered  by  the  deed  of  trust.  No  such 
acts  can  give  validity  to  the  statute  or  to 
the  bonds,  however  they  may  alfect  tlie 
sf.iifus  of  the  ]iro|)erty  ilealt  witii  or  the 
relation  of  the  municipality  to  such  prop- 
erty. I'arkersburgy.  Brown,  lOti  IJ.  S.  487, 
501.  Where  the  illegality  of  the  eontru't 
does  not  aiise  from  any  moral  turi)i- 
tude,  and  where  i)roperty  is  transferred 
tea  municipality  under  a  contract  which 
is  merely  tnii/iim  prnhihitian,  and  when: 
the  miini(^ipality  is  the  ju-incipal  offender, 
the  municipality  may  be  made  to  refund 
to  tiie  person  from  whom  it  has  received 
property  for  the  unauthorised  purpose, 
the  value  of  that  whic^h  it  has  actually 
received.  White  v.  Franklin  iJank,  22 
Pick.  181  ;  Morrille  v.  American  Tract 
Soe.,  123  Mass.  129  ;  Davis  i'.  Old  Colony 
hailroad,  131  Mass.  258,  275  ;  In  re 
Cork  &  Youghal  lUilway,  L.  R.  4  Cu. 


748.  But  when  the  corporation  lias  act- 
ually received  nothing  in  money  or  |iiu|i. 
erty,  it  cannot  be  held  liable  u|iiiu  an 
agreement  to  share  in,  or  to  guarantto  tlio 
profits  jjf,  an  enterprise  which  is  wliolly 
without  the  scope  of  its  corporate  powers, 
upon  the  mere  ground  that  conjectural  or 
speculative  beiu'lits  were  believed  by  it'- 
ollicers  to  be  likely  to  result  from  the 
making  of  the  agreement,  and  that  the 
other  party  has  incurred  exjiense  iipoii 
the  faith  of  it.  East  Anglian  Railways  r. 
Kastorn  Counties  Hail  way,  11  0.  15.  775; 
Macgregor  v.  Dover  &  Deal  Railway,  IS 
Q.  H.  618  ;  Ashbury  Hy.  Co.  v.  liiclie, 
L.  U.  7  U.  L.  653  ;  Thomas  v.  Uailroail 
Co.,  101  U.  S.  71  ;  Downing i\  Mt.  Wash- 
ington  Road  Co.,  40  X.  II.  230  ;  iMaiiklin 
Co.  I'.  Lewistou  Ins.  for  Savings,  68  Jle. 
43. 

2  County  of  Ralls  v.  Douglass,  105 
U.  S.  72!);  State  v.  Dougla.ss,  5(»  .Mo.  5!t3, 
596  ;  llarbaugh  v.  Winsor,  38  //).  32:. 
The  distinction  between  an  ollicer  df 
facto  and  an  olRcer  dc  jure  is  well  estab- 
lished, and  is  of  ancient  origin.  It  is 
.said  in  the  case  of  Parker  w.  Kett,  1  Ld. 
Ka;-  n.  660,  that  an  ollicer  dr  fitch)  is  one 
who  has  the  reputation  of  being  an  ullicer, 
and  yet  is  not  a  good  oltieer  in  i>i>iiit  of 
law  ;  and  this  definition  is  (|Uoti'd  ami 
api)roved  by  Lord  Kllenlioiougli,  in  He.v 
V.  Corporation  of  Bedford,  6  Ivvst,  36S. 
A  person  may  be  disciualilied  and  ineli- 
gible to  hold  an  ottiee,  yet,  as  a  df  /'"''" 
ofiicer,  his  acts,  until  liis  removal,  will 
be  valiti  as  to  third  ])ersons.  St.  bonis 
County  f'ourt  v.  Sparks,  lO  Mo,  117; 
Kiiight  I'.  Corporation  of  Weils,  1  Lutw. 
509,  519.  And  where  an  appointiinnt  is 
regularly  made,  it  is  a  c-'  -ralile  aiitli' 
for  the  appointee,  and  renders  him,  "i.- 
exercising  the  functions  of  the  olli'e,  an 
ofiicer  de  facto,  and  Ins  acts  valid,  so  Tarns 
third  p-rsons  are  eoncerneil,  even  tlion^'ii 
he  has  not  pursued  the  neee  .sary  foimaii- 
ties  to  make  him  an  olli.  er  <"•  jiii'i\  l""' 
People  V.  Cook,  4  Seld.  67,  81».  It  is  said 
in  this  case ;  "An  ollicer  dc  fnclo  is  ono 


PART  v.] 


CORPORATIONS. 


425 


It  is  no  defence  to  bonds  issued  by  counties  in  Missouri,  in  pay- 
ment of  subscriptions  to  the  capital  stoclc  of  a  company,  and  in 
the  luuids  vf  innocent  holders,  that  the  company  to  whoso  stock 
the  subscription  was  made  was  not  organized  within  the  ti-no 
limited  by  its  charter.^ 

Wlien  authority  is  granted  by  the  legislative  branch  of  the  gov- 
cnimeiit  to  a  municipality,  or  a  sub-division  of  a  State,  to  contract 
an  extraordinary  debt  by  the  issue  of  negotiable  securities,  the 
power  to  levy  taxes  sutlicient  to  meet,  at  maturity,  the  obligation 
to  be  incurred,  is  conclusively  implied,  unless  the  law  which  con- 
fers tlie  authority,  or  some  general  law  in  force  at  the  time,  clearly 
manifests  a  contrary  legislative  intention.  The  power  to  tax  is 
necessarily  an  ingredient  of  such  a  power  to  contract,  as  ordina- 
rily political  bodies  can  only  meet  their  pecuniary  obligations 
tln'oiigh  the  instrumentality  of  taxation.^ 

The  prohibition  in  the  constitution  of  Missouri,  of  1805,  art.  11, 
sec,  14,  prohibiting  a  county  from  becoming  a  stocivholdor  in  or 
loaning  its  credit  to  a  corporation,  without  a  vote  of  the  j)eople, 


tt 


{ 


t  ( 


wild  I'oini  -.  into  office  by  color  of  a  legal 
apiiiiiiiliiic'iH  'ir  ck'ctioii.  His  acts  in  that 
ca]Miiity  alt'  as  v:!liil,  as  far  as  tlu-  public 
is  (.'oiiciTiiid,  as  till)  acts  of  an  oliiccr  dc 
juir.  Ills  tititi  cannot  be  ini|uirc(l  into 
lolhitiMiilly."  The  doctrine  on  the  subject 
will  111'  Iciuml  in  the  following;  cases  ;  The 
Pt'oplc  t'.  lio]ison,  1  Dcnio,  570  ;  Cocke 
!'.  llil^cy,  lii  I'ct.  71  ;  lVo[)le  v.  Stevens, 
.'i  Hill,  tjlf) ;  McKinstry  v.  Tanner,  9 
.Iiiluis.  54ii ;  Wilcox  i'.  Smith,  5  WtMid. 
m  ;  lierrvinan  r.  Wise,  4  T.  1{.  30()  ; 
BeviMi  V.  VVillianis,  3  T.  U.  t);{5,  n.  ;  Had- 
lonl  V.  Mcliit')sh,  3  T.  U.  t)3'J  ;  Crosse  v. 
Kiiv,  t!  T.  i;.  t))i3;  17  Vin.  Ati.  114  ;  The 
l'e»|ile  V.  I',;,ith'tt,  (5  Vend.  432  ;  Weeks 
r.  Kll'.s,  -2  l!;irb.  :5-:4.  The  doctrine  that 
till'  acts  111'  ;in  olhi  er  de  fartu  are  v  ilul  e^- 
tt'inN  iiiily  to  [irevent  mischief  to  sucl;  as 
ciinliili'  in  iiiHii'rs  wlio  are  acting  without 
li^'lit.  Th"  cilice  is  void  as  to  the  otiicer 
liiiiM'lt',  tliiini,'li  valid  as  to  strangers.  The 
l\'o|i|'-  r.  Collins,  '/  Johns.  ,")4'J  ;  Fowler 
V.  lii'lHc,  '.I  Mass.  231  •  Commonwealth  v. 
Fowler,  lo  Mas;,.  2i>ii;  Hmknian  v.  Uuggles, 
iri  Mass.  ISO  ;  Uiddie  V.  The  County  of  I5ed- 
funl,  7  S.  &  H.  3St;,  392  ;  Parker  v.  LufF- 
l")n)ii,;;li,  11  S.  &  U.  249  ;  Keyser  V.  iMc- 
Kissiii,  2  11  lule,  139  ;Cro.  KHz.  fi99  ;  King 
f.  l.ysle,  .\iidre\v.s,  1()3  ;  Hii/psly  y.  Tucke, 
2  l.iv.  IS  t.  Ill  Cro.  KHz.,  699,  the  reason 
is  1,'ivi'ii  !',,r  the  rule  :  "That  the  net  of 
an  ollii'i-r  ilr  fiu-to,  where  it  is  for  his  own 
lii'iii'lit,  is  void  ;  because  he  shall  not  teke 
ailvaiitai,'!'  of  his  own  want  of  title,  which 
lie  must  he  conusant  of ;  but  where  it  is 
foithehi'iielitofstrangersortliepublio,  who 


are  presumed  to  be  ignorant  of  such  defects 
of  title,  it  is  good."  In  llarhaugh  v.  Win- 
sor,  38  Mo.  331,  the  court  say  :  "The  rule 
ini|)arting  validity  to  the  acts  of  a  dr  facto 
otiicer  is  indispensal>ly  necessary  to  pre- 
vent the  failure  of  justice.  Tin;  business 
of  the  coinnmnity  could  not  be  tiansai'ted 
without  it.  Irrepanible  wrong  would  re- 
sult from  any  other  doctiiue.  Thi?  public 
are  necessarily  compelled  to  do  business 
with  an  ollicer  who  is  exercising  the  duties 
and  privileges  of  an  ollicer  under  color  of 
right,  and  to  .say  that  his  acts  as  to  stran- 
gers should  be  void,  would  be  gross  in- 
justice. It  would  cause  a  susjicnsion  of 
l)U.'-iness  till  every  ollieer's  right  t/c  jure 
Viiu  eEt''blished.  This  would  not  only 
jiroduce  inci-^wenience,  but  it  wo;;ld  be  a 
sheer  absurdity.  The  law  will  therefore 
not  permit  otiicial  acts  to  be  impeached 
collate- ally.  Tlii-s  view  of  the  law  is  well 
settlcii,  and  we  a"e  not  aware  of  any  uu- 
thoritv  CO  the  contiary." 

I  County  of  Halls  v.  PouLdass.  105 
U.  S.  728';  Hal!  Bank  v.  .Mcichants" 
Hank,  10  .Mo.  123  ;  Kayser  v.  Trustees 
of  jlrenien,  Iti  Mo.  88  ;  Smith  v.  t'ounty 
of  CI.Mk,  54  Mo.  58  ;  City  of  St.  I.oin's 
V.  Sh.elds,  ti2  .Mo.  247  ;  County  ol  .Macon 
V.  Sl.(  V,  ,■.,  97  U.  S.  272. 

a  Ralls  County  Court  v.  United  States, 
105  U.  S.  733  ;  Loan  Association  v.  To- 
pcka,  20  "Wall.  645  ;  United  States  v. 
Now  Orleans,  08  U.  S.  381  ;  United 
States  r.  County  of  Macon,  99  U.  S.  58'2  ; 
Stale  V.  Dallas  County  Court,  72  Mo.  320. 


:    !■• 


t: 


i  1 


426 


COMMENTARIES  ON   SALES. 


liHM 


[book  II. 


was  intended  as  a  limitation  on  future  legislation  only,  and  was 
not  intended  to  retroact  so  as  to  have  any  controlling  application 
to  laws  in  existence  when  the  constitution  was  adopted.* 

Bonds  were  issued  by  a  municipality  in  New  York  and  given 
to  a  railroad  company,  which,  as  between  the  municipality  and 
tlic  company,  were  decided  to  be  illegal.  Wlicther  good  as  be- 
tween holders  and  the  municipality  depended  upon  whether  the 
holders  were  bond  fide  holders  for  value,  without  notice,  and  the 
municipality  was  held  not  to  be  estopped  by  the  fact  that  the 
same  holder  had  previously  obtained  judgment  on  similar  bonds, 
as  non  constat  but  he  may  have  obtained  those  now  sued  on  after 
the  illegality  of  the  bonds  had  been  decided,  and  under  circum- 
stances which  would  show  that  he  was  not  a  bond  fide  holder 
without  notice.^ 

Although  tlic  records  of  the  municipality  contained  no  evidence 
of  a  township  meeting  at  which  the  qualified  vo.vs  assented  to 
the  issue  of  bonds,  yet  the  court  held  that  Jici  (';<  "^utes  con- 
ferred ample  authority  upon  the  township  to  i,-  ,ae  Moads  in  pay- 
ment of  the  donatioil  voted,  the  qualified  electors  assenting  thereto 


1  Comity  of  Ralls  v.  Douglass,  105 
U.  S.  723.  The  Supreme  Court  of  iMis- 
souri  has  many  times  decided  in  this  way, 
and  the  Uni'^ed  States  Supreme  Court,  fol- 
lowing such  decisions,  has  always  held  tiie 
same  doctrine.  State  v.  Macon  Countv 
Court,  41  Mo.  453;  Kansas  City,  &c.  R.  R. 
Co.  V.  Alderman,  47  Mo.  349.  In  State  v. 
C.)iiiity  Court  of  Sullivan  County,  51  Mo. 
522,  it  was  said  :  "It  has  always  been 
held  that  the  provision  of  the  Constitu- 
tion, art.  11,  §  14,  was  a  limitation  upon 
the  future  power  of  the  legislature,  and 
was  not  intended  to  retroact  so  as  to 
have  any  controlling  application  to  laws 
in  existence  when  the  Constitution  was 
adopted."  State  v.  Greene  County,  54 
Mo.  540  ;  County  of  Callaway  v.  Foster, 
93  U.  S.  567  ;  County  of  Scotland  v. 
Thomas,  94  U.  S.  682  ;' County  of  Henry 
V.  Nicolay,  95  U.  8.  619  ;  County  of  (."ass 
V.  Gillett,  100  U.  S.  585.  When  all  these 
cases  W(!re  decided  the  act  of  March  23, 
1861,  was  in  force,  wliii;h  provided  that  it 
shouiil  not  be  lawful  for  counties  to  sub- 
scribe to  the  sti.ck  of  railroad  companies 
until  an  election  had  been  held  under  tiie 
provisions  of  that  ai^t,  yet  it  seems  never 
to  have  been  specially  referred  to,  either 
by  counsel  or  tlio  court,  except  juco  in 
Smith  V.  Clariie  County,  54  Mo.  58,  70, 
when  Napton,  J.,  said:  "So  tliat  tlie 
provisions  of  the  revised  Code  of  18.')5, 
and  tiie  amendatory  acts  of  1860  and 
1861,  anl  the  constitutioiial  prohibition, 
and  the  >  -l''  I.itive  adoption  of  that  pro- 
hibition  iuiuieiliately  after  its    passage, 


have  been  held  by  repeated  adjudii.'ations, 
and  without  any  coiillictiug  oiilnions  of 
the  court,  or  any  individual  judf,'c  thereof, 
so  far  as  their  rei)orts  show,  not  to  eH'cct 
the  repeal  of  the  privileges  contained  in 
special  charters."  By  later  decisions  in 
Missouri,  in  State  v.  Garroute,  67  Mo, 
445,  and  State  v.  Dallas  County,  72  Mo. 
329,  this  whole  line  of  ca.ses  was  sulistaii- 
tially  overruled.  In  County  of  Hulls  c. 
Douglass,  105  U.  S.  728,  731,  the  tiiiineme 
Court  of  the  United  States  i  'fiiseil  to  'ol- 
low  tiiese  later  d;'cisions  on  the  <^r  "id 
that  the  bonds  involved  in  the  sui'  .  :" 
all  in  tl  e  hands  of  innocent  holde'  sh>  ■ 
the  law  of  the  State  was  so  jjiuli';,  •!>•»'■ 
tered  by  its  courts  ;  and  that  t'  ^  nc'-  '«• 
the  parties  to  the  suit  were  to  be  i.  tci :  i  p 
by  tiie  law  as  it  was  judicially  .oiimi'  . 
to  be  when  tlie  bonds  in  (|a.'stion  if: 

Eut  on  the  market  as  commcnial  pr.per. 
louglass  1).  I'ike  County,  101  l'.  S.  6S7, 
^  Stewart  V.  Lansing,  loi  l'.  S.  50.'i. 
And  see  Cromwell  i:  County  of  ."^ac,  I'l 
U.  S.  351.  It  is  an  elementary  nilc  that 
if  fraud  or  illegality  in  the  iui'c|itioii  ot 
negotiable  paper  is  shown,  an  inddist'c  bo- 
fore  ho  can  recover  must  prove  tiiat  ho  is 
a  holder  for  value.  The  mere  pussission 
of  the  paper  under  such  circi'"  ;trtin'i's  is 
nit  enough.  Smith  i».  Sai'  i-  'itv,  11 
Wall.  139;  Hall  r.  Fcallici  tr  ••  1  If.  i 
N.  284;  Bailey  w.  Bidwell,  13  M.  .  '  -'3; 
Fitch  V.  Jones,  5  K.  &  H.  238;  .'  ryv. 
Al('"rman,  14  C.  B,  95  ;  Mdn.iiiuls  c 
Groves,  9  M.  &  W.  642;  Smith  i'.  Uinine, 
16  Q.  b.  2*4 


[book  II. 

only,  and  was 
ng  application 
•ted.i 

ork  and  given 
micipality  and 
31'  good  as  be- 
»n  whether  the 
notice,  and  the 
!  fact  that  the 

similar  bonds, 
r  sued  on  after 

under  circuiu- 
nd  fide  holder 

led  no  evidence 
;'i'h  assented  tu 
e  :  /^utes  con- 
e  ooads  in  pay- 
isenting  tliereto 

)eated  iidjudii.'iitioiis, 
itlicting  oiiinioiis  of 
ifiiluiil  juilst:  thereof, 
I  show,  not  to  ellk't 
|vik'j;L's  coutiiiued  iu 

Inter  decisions  in 

Giirvoutc,  1)7  Mo. 

IS  Coiiuty,  72  Mo. 

(!asos  was  siilistiui- 
County  of  lialls  c 

;,  731,  tlu!  Siipremf 


itatcs  !  .'fiiseil  ti. 


■id 


ions  on  tlie  {,"■ 
ed  iu  till'  sui'    -  "" 
o(!ont  holtk'i      ii' 
lis  so  malt'!.,  i.v  a'^ 
,d  that  '.'  '  r,:'.    ^; 
■ere  to  bi'  >.  tt".    i  "■ 

udicially  >on.Mir  ■ 
in  (la.'siioi,  ff! 

coinincn'iiil  I'-per. 

tv,  101  r.  S.  OSJ. 

iiL',  101  r.  s.  ou'i. 

lunty  of  S;k',  lU 
ii'iufntiiry  nili'  tliiit 
in  tin-  iiiVi'|itioii  ot 
Avn,  an  imloisee  Iw- 
jirovn  tiiat  I'.o  is 
lie  mere  |i(issi  siinn 
h  i-iiri"  ^tiUii'i's  is 

,  Sa^'  '..■  -ity.  " 
iitlit'i  ic  •.  1  H.  i 
H,  i:!  '■!.  -  ■  ''^i 
Be  H.  '23.S;  .-  ■I'V- 
it;')  ;  Kdlioimls  i'. 
;  tjuiith  V.  Hruiue, 


PART  v.] 


CORPORATIONS. 


427 


at  a  regular  or  special  town  meeting,  and  as  the  bonds  recited  that 
they  were  issued  in  pursuance  of  the  autliority  conferred  by  those 
statutes,  the  validity  of  the  bonds,  in  tlie  liands  of  a  bond  fide 
purchaser,  did  not  depend  upon  proof  that  such  an  election  was 
in  fact  duly  called  and  held,  at  which  the  qualified  voters  as- 
sented to  an  issue  of  bonds  in  j)ayment  of  the  donation  previ- 
ously voted.  The  recital  imported  a  compliance  with  the  statute, 
and  the  township  was  estopped  from  asserting,  as  against  a  bond 
fide  holder  for  value,  that  such  recitals  were  untrue.^ 

A  municipality  having  power  to  issue  its  bonds,  under  which  it 
issues  them  and  puts  them  into  circulation  as  commercial  securi- 
ties, the  bonds,  particularly  if  they  are  negotiable,  are  primd  facie 
obligations  of  the  obligors,  if  they  had  power  to  issue  them,  and 
are  binding  according  to  the  terms  and  conditions  apparent  on 
their  face  until  the  contrary  be  shown.  All  the  holder  of  them 
has  to  do,  in  case  of  non-payment,  is  simply  to  sue  on  the  bonds. 
If  there  is  any  defence  to  them  by  reason  of  want  of  perform- 
ance of  any  of  the  requisites  necessary  to  give  them  validity,  or 
for  any  other  cause,  it  is  necessary  for  the  obligor  to  show  it. 
Whether  an  alleged  defence,  when  set  up,  is  or  is  not  good  against 
the  |)urticular  holder,  is  to  be  determined  by  the  court  in  each 
casc.2 

The  capital  stock  of  a  corporation,  especially  its  unpaid  sub- 
scriptions, constitutes  a  trust  fund  for  the  benefit  of  its  general 
creditors,  and  its  governing  officers  cannot,  by  agreement  or  other 
transaction  with  the  stockholder,  release  him  from  his  oljligation 
to  pay,  to  the  prejudice  of  its  creditors,  except  by  fair  and  honest 
dealing  and  for  a  valuable  consideration.^ 


1  Bonham  v.  Needles,  103  U.  S.  648. 
See  liarter  y.  Keniochiui,  lb.  562  ;  Bii- 
cliaiiiiii  I'.  Litehlield,  102  IT.  S.  278.  In 
Kenicott  V.  Sm(ervi,sors,  16  Wall.  452, 
tile  rule  was  thus  stated  :  "  If  an  election 
or  ntliei'  fact  is  re(iuired  to  authorize  the 
issue  of  the  bonds  of  a  nuini(!ii>al  corpora- 
tion, and  if  the  result  of  that  election  or 
tlie  existence  of  that  fact  is  by  law  to  bo 
iisiertained  and  declared  by  any  judge, 
utlicer,  or  tribunal,  and  that  jud<,'e,  ofHcer, 
or  tiiliuii.d  on  behalf  of  the  corporation, 
executes  (II  issues  the  bonds,  with  a  recital 
tliiit  the  eleition  has  been  held  or  that  the 
I'lut  exists  or  li.'s  taken  place,  this  will  be 
siilTieieiit  cvidenci,  of  the  fact  to  all  lumd 
,t!'k  liolilers."  County  of  Moultrie  v.  Sav- 
iiij-'s  B;iiik,  92  U,  S.  631  ;  Marcy  f.  Town- 
■sliip  of  Oswego,  Ih,  637;  Conunisfioners 
of  Knox  County  v.  Aspinwall,  21  How. 
Ml' ;  -lenns  v.  Pratt,  99  U.  S.  676  ; 
Tuwn  1,1  Colonia  t-.  Eaves,  92  U.  S.  484  ; 
Hninliolilt  Township  v.  Long,  lb.  642. 


2  Lincoln  v.  Iron  Company,  103  U.  S. 
412. 

8  County  of  Morgan  v.  Allen,  103  U.  S. 
498.  See  Sawyer  v.  Hoag,  17  Wall.  610. 
tn  Sawyer  i;.  'Upton,  91  IJ.  S.  56,  tlie 
United  States  Suju'enie  Court  said  :  "  'Die 
capital  .stock  of  an  iiicorjiorated  conipnny 
is  a  fund  .set  apart  for  the  payment  of  its 
debts,  it  is  a  substitute  fur  the  pei'sonnl 
liability  which  sulisists  in  private  copart- 
nerships. Wlieu  debts  are  incurred,  a  con- 
tract arises  with  the  creditors  that  it  shall 
not  be  withdrawn  or  applied  otherwise 
than  upon  their  deniantls  until  sueh  de- 
mand.; are  satisfied.  The  creditors  have  a 
lien  u|ion  it  in  equity.  If  diverted  they 
may  follow  it  as  far  as  it  can  be  traced, 
anil  taibject  it  to  the  payment  of  their 
claims,  except  as  against  holders  wlio  have 
taken  it  bomt  fide  iov  a  valuable  considera- 
tion and  without  notice.  It  is  publicly 
pledged  to  those  who  deal  with  the  corpo- 
ration for  tlieir  security.     Unpaid  stock 


V  ;.. 


t^ 


!    » 


i  t 


i:    I 


I 


Hi 


!i{ 


U  ; 


\i\ 


\\\ 


428 


COMMENTARIES  ON  SALES. 


[book  II. 


(i  ^;^!J;! 


:•■  I 


By  the  constitution  of  Tennessee  of  1834,  the  legislature  was 
prohibited  from  granting  special  immunities  to  individuals,  but  it 
had  "power  to  grant  such  charters  of  incorporation  as  may  be 
deemed  expedient  for  the  public  good."  In  County  of  Tipton  i'. 
Locomotive  Works,*  it  was  held  that  certain  acts  passed  by  the 
legislature  were  not  repugnant  to  the  constitution  by  reason  of 
their  having  conferred  authority  on  a  limited  number  of  counties, 
to  make,  and  on  a  particular  corporation  to  receive,  a  subscrip- 
tion of  stock,  nor  because  they  dispensed  with  the  previous  assent 
of  the  people  of  such  counties  expressed  at  a  popular  election.^ 

A  congressional  township,  being,  under  the  constitution  of  Illi- 
nois,-^ a  body  incorporated  for  scliool  purposes  only,  comes  within 
the  limitation  of  the  constitution  on  the  power  of  the  legislature 
to  authorize  taxation  by  public  corporations  or  the  political  sub- 
<>';  isions  of  the  State.*  Taxation,  therefore,  on  persons  and  proi)- 
v  within  the  jurisdiction  of  such  township,  to  build  railroads, 
i;.  iiot  taxation  for  a  corporate  purpose,  and  their  bonds  issued  for 
such  a  purpose  are  invalid.^ 

Until  the  legislature  authorizes  an  election,  a  vote  of  the  people 


is  as  imifili  a  part  of  this  pledge,  and  as 
imicli  a  jiait  of  the  assets  of  the  coinpaiij', 
as  tlie  cash  which  has  been  paid  in  upon 
it.  Creditors  liave  the  same  right  to 
loo':  to  it  as  to  anything  else,  and  the 
same  right  to  insist  upjn  its  payment  as 
upon  the  payment  of  any  otiier  debt  due 
the  company.  As  regards  creditors,  there 
is  no  distinction  between  such  a  demand 
and  any  other  assets  which  may  form  a 
part  of  the  property  and  elfects  of  the  cor- 
poration." Tlie  same  doctrines  are  held 
in  Ui)ton  v.  Trihilcock,  91  U.  S.  45;  Wel)- 
ster  V.  U])ton,  lb.  (55;  Hatch  v.  Dana,  101 
U,  S.  -H)');  Morgan  County  y.  Thomas,  76 
111.  120 ;  Thomas  v.  Tiie  County  of  Mor- 
gan, 39  111.  49u;  59  111.  479;  Henry  «. 
The  Vermilion,  &c.  Ky.  Co.,  17  Ohio,  187; 
Miers  v.  Z.  &  M.  T.  Co.,  11  Ohio,  273  ; 
Morris  v.  Cheney,  51  111.  451. 

1  103  IJ.  !S.  523. 

2  See  School  District  v.  Insurance  Co., 
103  U.  S.  707  ;  County  of  Wilson  v.  Na- 
tional Hank,  lb.  770.  And  see  the  follow- 
ing T<'nnessce  cases.  Hudd  v.  The  State, 
3  Iliimi.li.  4S3;  Vanzant  i;.  Waddel,  2 
Yerg.  2tiO;  State  Bank  v.  Cooper,  lb.  599; 
Tate  V.  Bell,  4  Verg.  202;  Ollicerr.  Young, 
5  Yerg.  320;  Kisher  v.  Dabbs,  6  Yerg.  119; 
Jones  V.  P(!rry,  10  Yerg.  59,  78;  Marr  v. 
Enboe,  1  Yerg.  452  ;  Sheppard  v.  .John- 
son, 2  Humph.  235;  Hazen  v.  Union  Hank 
of  Tennessee,  1  Sneed,  115,  118  ;  Nichol 
V.  Mayor,  &c.,  9  Humph.  252  ;  City  of 
Memphis  V.  The  Memphis  V'ater  Co.,  5 
Hcisk.  495 ;  Memphis  City  l!d.  Co.    v. 


Mayor,   &c.    of  Memphis,   4   Cold.   406; 
McCallie  v.  Mayor,  &c.,  3  Head,  317. 

*  Art.  9,  §  5,  of  the  constitution  of 
1848. 

*  Johnson  v.  Campbell,  49  111.  316; 
Harward  v.  St.  Clair  Drainage  Co.,  [d  111. 
130;  Madison  County  v.  People,  58  111. 
456.    . 

6  Weightman  v.  Clark,  103  U.  S.  256; 
Trustees  v.  People,  63  111.  299  ;  People  v. 
Dupuyt,  71  111.  651;  People  v.  Tru>t(!i's  of 
Schools,  78  111.  136;  Hackett  v.  Ottawa, 
99  U.  S.  86.  In  AVilliams  v.  Loiii.-'in.i, 
103  U.  S.  637,  bonds  were  held  vcjid  as 
having  been  issued  in  e.vcess  of  the  cdiisti- 
tutional  limitation  allowed  in  the  State. 
See  also  Railroad  Co.  v.  Falconer,  103 
U.  S.  821 ;  and  see  Thomp.son  v.  P  rrine, 
lb.  806,  where  the  invalidity  was  lieW 
cured  by  the  pas.sage  of  a  later  act.  lioiiJs 
issued  under  an  act  authorizing  their 
issue  on  a  majority  of  the  electors  voting 
in  favor  of  their  issue,  were  declared  void 
in  Missouri,  the  constitution  ri'i|uirini;  ii 
two-thinl  vote.  Jarrolt  v.  Moheilv,  103 
IT.  S.  580.  See  Insurance  Co.  v.  Hnu'f, 
105  U.  S.  328,  on  a  numicipality  lu'lng 
estopped  from  contradicting  tlie  niitul  in 
its  bonds  that  tliey  conformed  to  the  htat- 
utory  requirements.  See  a'so  County  of 
Moultrie  v.  Fairtiehl,  105  U.  S.  37o;  Han- 
nibal V.  Fauntleroy,  lb.  408 ;  l-i«is  v. 
Commissioners,  fb.  739  ;  Paiia  v.  Howler, 
107  IT.  S.  529  ;  County  of  Cluy  v.  Society 
forS.ivings,  104  U.  S.579. 


[book  II. 

Bgislature  was 
ividuals,  but  it 
on  as  may  be 
ty  of  Tipton  v. 
passed  by  the 
1  by  reason  of 
cr  of  counties, 
ve,  a  subscrip- 
Drevious  assent 
iar  election.^ 
titutioii  oi"  llli- 
',  comes  within 
the  legislature 
e  political  sub- 
sons  and  I'l-o])- 
>uild  railroads, 
onds  issued  for 

;e  of  the  people 

Ms,   i  Cold.   406; 
i.,  3  Head,  317. 
the  constitution  of 

pbcll,  49  111.  31tj; 
)riiiiiaj;«  Co.,  Td  111. 
f  V.   Pt'oide,  5S  111. 

ark,  103  U.  S.  256; 

111.  299  ;  reiiple  i'. 

'eoiile  V.  Ti'iiNtci's  of 

Hackett  V.  Ottawa, 

liains  V.   Louis'ni.i, 

were  lu'M  void  as 

exoes.s  of  the  cniisti- 

lowed  in  tlu'  State. 

V.   Fidcoiicr,  103 

loinp.son  V.  Ptrriiie, 

iivalidity  was  lielil 

fa  later  act.    lioiiJs 

authorizing  their 

the  electors  voting 

were  dechnvd  void 

itutioii  rc'iiiiriiii!  a 

It  V.  .Moherjy,  103 

raiioe  <'o.  v.  Biiu'e, 

nmnicii)ality  l"'ing 

Ming  the  rcrjtal  in 

iifornied  to  the  stat- 

See  a'so  Cimiity  of 

Oa  U.S.  3711;  Han- 

lb.  408  ;    I-ewis  r. 

i9  ;  Pana  f.  liowler, 

y  of  Clay  V.  Society 

579. 


PART  v.] 


CORPORATIONS. 


429 


cannot  be  taken  which  will  bind  the  municipality,  or  confer  upon 
the  municipal  authorities  the  power  to  make  a  subscription.  The 
legislative  authority  to  obtain  the  popular  assent  is  as  essential  to 
the  validity  of  the  election  as  it  is  to  the  subscription.^ 

Bonds  of  the  State  of  Florida,  which  had  been  fraudulently- 
issued  and  delivered  to  a  railroad  company,  and  notwitlistanding 
a  resolution  that  they  should  be  destroyed,  were  fraudulently  sold ; 
although  not  recoverable  against  the  State,  the  railway  company 
was  hold  liable  under  a  statutory  mortgage  as  security  for  the  pay- 
ment of  the  bonds  to  bond  fide  holders.^ 

No  legislation  can  confer  upon  a  municipal  corporation  author- 
ity to  contract  indebtedness  which  the  constitution  expressly 
declares  it  shall  not  be  allowed  to  incur.^  Therefoi-e,  where  it 
appeared  by  evidence,  of  which  the  corporation  could  rightfully 
avail  itself  as  against  a  bond  fiJe  holder  for  value  of  its  bonds, 
that  they  created  an  indebtedness  in  excess  of  the  amount  to 
which  municipal  indebtedness  was  restricted  by  the  constitution, 
the  bonds  were  held  void  for  want  of  the  leajal  authority  to  issue 
them  at  the  time  they  were  issued  ;  there  being  no  such  recitals  in 
the  bonds  as  to  estop  the  corporation,  as  against  a  bond  fide  holder 
of  the  bonds,  from  denying  that  they  had  been  illegally  issued.* 

The  plaintiffs,  having  done  work  for  the  city  of  AVashington, 
received  a  certificate  from  the  city  auditor,  certifying  that  he  had 
audited  their  account  and  allowed  them  88,451,88.  By  law  in  the 
District  of  Columbia,  these  certificates  could  be  surrendered  to  a 
board  of  audit  in  lieu  of  interest-bearing  bonds  of  the  District. 


1  Allen  V.  Louisiana,  103  U.  S.  80. 

-  Haili-oad  Companies  v.  .S(duitte,  103 
U.  S.  lis.  It  was  contctided  in  this  case 
that  even  if  the  railroad  company  were 
liable  on  the  bonds,  that  as  they  were 
fraudulently  put  out  by  the  olKiM-rs  of  the 
coniiiany.  and  were  unconstitutional,  the 
recovery  must  be  confined  to  the  amount 
actually  paid  for  the  bonds  to  the  agents 
iif  the  ciiiiiimnies.  But  the  court  .said  : 
"As  we  have  endeavored  to  show,  the 
homls,  although  void  as  to  the  State,  are 
valiil  as  to  till!  company  that  sold  them. 
Ilavini;  been  ]>ut  on  the  market  by  tlie 
ciini]iaiiy  as  valid  bonils,  the  company  is 
i'*tii|i]icd  from  setting  up  their  nni^onstitn- 
tioiiality.  As  ajjainst  tlie  com()any,  they 
(ii'cupy  in  the  market  the  position  of  com- 
iniMcial  securities,  and  may  be  dealt  with 
and  enrcirced  as  .such.  The  company, 
through  their  faithless  agents,  are  in  a 
jwsitioii  where  they  must  meet  tliose  they 
nave  dealt  with  eonnnercially,  and  respond 
aecorduigly.  In  commerce,  commercial 
I'nper  ineatis  what  on  its  face  it  repre- 
sents, regardless  of   what  its   maker  or 


promoter  may  liave  got  for  it.  The  bonds 
of  the  State  in  the  o|)en  market  purported 
to  be  what  they  called  for.  The  company 
put  them  out,  ami  in  legal  eilect,  as  wo 
think,  indor.sed  them.  A  band  fule  holder 
can  now  require  the  indorser  to  respond 
to  his  indorsement  connneicjully  ;  that  is 
to  say,  by  paying  what  he  in  eilect  agited 
the  maker  nnist  [>ay."     ////-/.  p.  144. 

8  Law  V.  Thi'  Peojde.  87  111.  tiS.'.;  Ful- 
ler c.  Citvof  Chicag<,  8!t  111.  2.s'J. 

<  Buchanan  v.  LitchlhM,  102  U.  S. 
278.  In  such  case  the  money  receiveil  by 
the  corporation  for  the  bomls  can  bo  re- 
covercil  back.  Louisiana  v.  Wood,  lb. 
294.  See  Lonisian.'i  v.  Pilsbury,  105 
V.  .S.  278,  on  legislation  imiiairing  the 
obligation  of  a  contract,  in  providing  a 
less  ade(]nate  remedy  for  the  eiiforceiinMit 
of  tlie  obligations  of  a  municipality  to  pay 
the  interest  on  its  bonds.  And  see  Louisi- 
ana V.  Taylor,  lb.  454.  Invalid  bonds  for 
want  of  authority  to  issue.  Wcdls  v.  Su- 
pervisors, 102  U.  S.  625;  Ogdcn  i".  County 
of  Daviess,  Ih.  634. 


li 


■■' 


!   I 


430 


COMMENTARIES   ON  SALES. 


[book  II. 


After  receipt  of  the  certificate,  they  borrowed  from  B.  the  sum  of 
$3,160  for  six  months,  leaving  with  liim  the  certificate  indorsed 
in  blank,  to  be  returned  to  them  on  the  repayment  of  the  bor- 
rowed money.  When  it  became  due  they  called  with  the  amount 
and  accrued  interest  to  take  up  the  certificate,  and  found  that  H. 
had  absconded.  Having  traced  the  certificate  into  the  hands  of 
the  defendant,  they  filed  a  bill  against  him  to  compel  the  restitu- 
tion of  the  certificate.  The  defendant  alleged  that  he  had  bought 
tlie  certificate,  bond  fide,  for  value,  without  notice.  The  Supreme 
Court  of  the  District  of  Columbia  made  a  decree  against  the  de- 
fendant. On  appeal  to  the  United  States  Supreme  Court,  the 
decree  was  sustained.  The  court  held  that  the  defendant  must 
be  treated  as  standing  in  the  place  of  B.,  and  holding  the  certili- 
cate  subject  to  the  claim  and  equities  of  the  plaintiffs.  The 
certificate,  was  not  a  negotiable  instrument  which  could  pass 
by  indorsement  and  delivery.  It  was  not  a  promise  to  pay  any 
sum,  nor  was  it  an  order  upon  any  one  or  upon  any  fund  for 
the  payment,  or  for  the  delivery  of  anything  of  value;  and  any 
one  taking  it  took  it  subject  to  all  the  ights  and  equities  of 
the  actual  owner  as  much  as  if  it  were  tangible  property  in  the 
streets.* 

After  an  order  had  been  made  by  a  county  court  for  the  issue 
of  bonds,  an  act  was  passed  requiring  that  all  bonds  should  l)e 
registered  and  certified  or  be  invalid,  it  was  held  that  l)onds 
issued  under  such  order,  but  after  the  act  named  came  into  force, 
were  invalid,  in  the  hands  of  homl  fide  holders,  without  such 
registration  and  certificate.^ 

Bonds  of  a  township  in  Kansas,  payable  to  A.,  a  railroad  com- 
pany, or  bearer,  were  duly  executed  by  the  township  trustee  and 
township  clerk,  acting  in  their  official  capacity  as  its  legal  repre- 
sentatives. They  recited  that  they  were  issued  pursuant  to  an 
order  of  the  proper  officers  of  the  township,  made  by  authority 
of  an  act  of  the  legislature  which  was  therein  cited,  and  were 
ordered  by  the  qualified  electors  of  the  township,  at  an  election 
duly  held.  An  action  was  brought  by  a  bond  fide  holder  for  value 
of  the  interest  coupons  attached  to  some  of  the  bonds,  who  had 
no  notice  of  any  fact  impairing  their  validity.  It  was  held  that 
it  was  not  a  defence  to  the  action  that  at  the  time  of  voting  and 


1  Cowdrey  v,  Vandenlinrgh,  101  IT.  S. 
573.  Tho  jnirchasers  of  non-iiegntialilo 
demands  from  otlnrs  than  the  original 
owner  of  them  can  take  only  such  rights 
as  he  has  parted  with,  except  when  by  liis 
acts  he  is  estopped  from  asserting  his  ori- 
ginal claim.  They  must  in  suoii  ca.se  abide 
bv  the  case  of  the  person  through  whom 
they  claim.     Cutts  v.  Guild,  67  N.  Y.  229; 


Ingraham  v.  Disborough,  47  N.  Y.  421; 
Bush  V.  Lathrop,  22  N.  Y.  fiSa  :  Mi-Nfil 
V.  The  Tenth  National  Bank,  4(1  N.  Y. 
325.  See  Mena.sha  v.  Hazi.rd,  lt.'2  U.  S. 
81,  on  conclusivene.S3  of  certificate  on 
bonds. 

"  Anthony  v.  County  of  Jaspor,  101 
U.  S.  693.  See  Bayley  v.  Taber,  5  Mass. 
285. 


PART  v.] 


CORPORATIONS. 


481 


issuing  the  bonds  their  entire  amount  was  in  excess  of  the  propor- 
tion which  by  law  they  should  bear  to  the  taxable  property  of  the 
township,  or  that  after  the  vote  at  said  election  had  been  cast  in 
favor  of  subscribing  for  stock  in  B.,  a  railroad  company,  the  sub- 
scription was  made  for  stock  in  A.,  and  said  bonds  issued  in  pay- 
ment therefor;  B.  having,  under  a  law  existing  at  the  time  of 
said  election,  become  merged  into  and  consolidated  with  A.  to 
form  a  continuous  lino  of  road.^  The  township  trustee  and  the 
township  clerk  who  made  the  subscription  and  issued  the  bonds 
in  this  case  were  the  officially  constituted  authorities  of  the  town- 
ship, and  when  they  subscribed  to  tlie  stock  and  issued  the  bonds 
they  acted  in  their  official  capacity  as  the  legal  representatives  of 
tiic  township,  and  not  as  mere  agents.  In  this  particular  they  oc- 
cupied the  position  of  the  County  Court  in  the  County  of  Scotland 
V.  Tliomas.'-^  They  were  to  all  ir.tcnts  and  purpo..cs  the  township 
in  its  corporate  capacity.  In  Harshman  v.  Bates  County,"  the 
case  was  different.  There  the  County  Court  was  the  mere  agent 
of  a  corporation  with  which  it  had  no  official  connection.  The 
difference  between  the  two  cases  is  precisely  that  between  a  prin- 
cipal and  an  agent,  and  it  is  so  expressly  said  in  the  County  of 
Scotland  Case.  In  the  one  case  the  corporation  is  bound  if  the 
action  of  the  officers  is  within  their  corporate  powers,  while  in  the 
other  tiic  action  must  be  within  the  corporate  powers  delegated  to 
the  agent. 

Power  to  issue  bonds  for  public  purposes  being  lodged  in  the 
corporate  authorities,  and  they  having  put  on  the  market  negoti- 
able securities  which  purport  on  their  face  to  have  been  issued  by 
a  city  that  had  charter  authority  to  issue  bonds  for  municipal  pur- 
poses, the  defendant  is  estopped  from  setting  up  that  in  point  of 
fact  the  purpose  was  not  municipal,  when  the  bonds  themselves 
recite  that  the  loan  is  for  municii)al  purposes,  and  they  have  come 
into  the  hands  of  a  bond  fide  purchaser,  who  took  them  relying 
on  such  recitals,  and  without  actual  notice  of  the  purpose  for 
which  they  had  been  issued  oMier  than  as  disclosed  on  the  face  of 
the  bonds.  The  United  States  Supreme  Court  held,  in  Ilackott  v. 
Ottawa,*  that  a  corporation,  quite  as  much  as  an  individual,  is  held 
to  a  careful  adherence  to  truth  in  their  dealings  with  mankind ; 
ami  cannot,  by  their  representations  or  silence,  involve  others  in 
onerous  engagements,  and  then  defeat  the  calculations  and  claims 
their  own  conduct  had  superinduced  ;  that  it  would  be  the  gross- 
est injustice,  and  in  conflict  with  all  the  past  utterances  of  the 
court,  to  permit  a  municipality  having  power  under  some  circum- 
stances to  issue  negotiable  securities,  to  escape  liability  upon  the 


»  Wilson  V.  Salamanca,  99  U.  S.  499, 
2  94  U.  S.  682. 


»  92  U.  S.  569. 
«  99  U.  S.  86,  98. 


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432 


COMMENTARIES  ON   SALES. 


[book  II. 


1  I 


% 


ground  of  the  falsity  of  its  own  representations,  made  tlnough 
official  agents,  and  under  its  corporate  seal,  as  to  tlie  |)Uiposes 
with  which  bonds  were  issued.  Whether  such  representations  are 
made  inadvertently,  or  with  the  intention,  by  the  use  of  inaccu- 
rate titles  of  ordinances,  to  avert  inquiry  as  to  the  real  object  iu 
issuing  the  bonds,  and  thereby  facilitating  their  negotiation  in  the 
money  markets  of  the  county,  in  either  case,  the  municipality, 
both  upon  principle  and  authority,  is  cut  off  irom  any  such 
defence.* 

A  city  issued  its  bonds,  engraved  with  vignettes  on  banknote 
paper,  and  having  the  form  and  appearance  of  treasury  notes  of 
the  United  States,  or  bank  bills,  and  it  paid  them  out  to  its 
creditors  for  property  sold,  materials  furnished,  and  labor  per- 
formed. It  received  them  for  taxes  and  other  dues,  and  to  some 
extent  re-issued  them.  They  formed  a  considerable  portion  of  the 
circulating  medium  of  the  city  and  vicinity.  Under  the  autliority 
of  a  statute  of  the  State,  empowering  the  city  council  of  any  city 
to  issue  bonds  for  the  purpose  of  extending  the  time  of  paying  its 
indebtcdnes?,  which  it  was  unable  to  meet  at  maturity,  tlio  city 
passed  an  c.iinance  providing  for  the  redemption  of  the  bonds 
first  described.  A.,  the  lawful  holder  of  some  of  them,  whicli  liad 
been  issued  to  other  parties  in  payment  of  valid  claims  against  the 
city,  and  were  overdue,  surrendered  them  to  the  city,  and  received, 
in  lieu  of  the  amount  due  tliereon,  bonds  for  which  the  ordinance 
provided,  and  a  credit  on  the  books  of  the  city.  The  city  failing 
to  pay,  A.  brought  suit  against  it.  A  recovery  was  resisted,  on 
the  ground  that  the  bonds  engraved  on  bank-note  paper  had  been 
issued  in  violation  of  law,  and  that  the  surrender  of  them  was  not 
a  valuable  consideration  for  the  bonds  and  the  credit  received  by 
A.  The  court  held  that  whether  the  original  bonds  were  illegal 
or  not,  the  city  had  the  right  to  reconsider  their  act,  and  to  purge 
the  transaction,  if  it  was  illegal,  of  its  illegality.  They  liad  the 
right  to  say :  "  We  had  the  authority  to  accept  from  you,  in  satis- 
faction of  amounts  received  by  us  for  legitimate  purposes,  tiie  sums 


*  Commissioners  of  Knox  County  v. 
Aspinwall,  21  How.  539;  Bissell  v.  City 
of  Jt'ffersonville,  21  How.  287;  Van  Hos- 
trup  V.  Madison  City,  1  Wall.  291;  Mer- 
cer County  V.  Hackctt,  Tb.  83;  Suiiervisors 
V.  Sclienek,  5  Wall.  772  ;  Grand  Chute  v. 
Winegar,  15  Wall.  355;  St.  Josepli  Town- 
ship V.  Rogers,  16  Wall.  644  ;  Town  of 
Coloma  V.  Eavns,  92  U.S.  484;  County  of 
Moultrie  v.  Savings  Bank,  lb.  631 ;  Marcy 
V.  Township  of  Oswego,  lb.  637,  Hum- 
boldt Township  v.  Long,  lb.  642  ;  Com- 
missioners V.  January,  94  U.  S.  202;  Com- 
missioners V.  Bowles,  lb.  104  ;  Cromwell 


V.  County  of  Sac,  96  U.  S.  51  ;  San  An- 
tonio V.  Mehalfv,  lb.  312 ;  County  of 
Warren  v.  Marcy,  97  U.  S.  9(5  ;  Mi'.iley 
V.  St.  Clair  County,  3  Dill.  li!3;  Allon  ». 
Cameron,  Ih.  17.>;  Wyatt  w.  City  of  Oreen 
Bav,  1  Biss.  292;  Town  ot  Wi'Viiuwe<;;i  v. 
Ayling,  99  U.  S.  112;  Supervisors  i-'.  Cai- 
braith,  99  S.  C.  214 ;  Brooklyn  r.  Insur- 
ance Co.,  lb.  362;  Orleans  v.  Piatt,  99 
U.  S.  676  ;  The  Royal  British  Itank  v. 
Turquand,  6  El.  &  Bl.  32.");  Lyans  v.  Mun- 
son,  99  U.  S.  684  ;  Block  v.  Commission- 
ers, lb.  686. 


[book  II. 

lade  through 
the  jjui'poses 
cntations  are 
30  of  iiiaccu- 
eal  object  in 
tiatioii  in  the 
municipality, 
111!   any  such 

on  banknote 
sury  notes  of 
!m  out  to  its 
lid  labor  per- 

and  to  some 
portion  of  the 

the  authority 
;il  of  any  city 
!  of  paying  its 
urity,  the  city 

of  the  bonds 
em,  which  had 
ms  against  the 
,  and  received, 
the  ordinance 

10  city  failing 

IS  resisted,  on 

3cr  had  been 

hem  was  not 

it  received  by 
were  illegal 
and  to  ])urge 

They  had  the 
you,  in  satis- 

OSes,  the  sums 


1 


S.  51  ;   San  An- 

312  ;    County  ot 

IJ.  S.  0(5  ;   M''!il('y 

)ill.  lt)3;  AUiMif. 

,tt  ».  Cityofdreen 

ot  Wi'Viunvefjii  V. 

Supervisors  i'.  <'i"- 

Brooklvn  r.  Insiir- 

MHS  V.    VIM,  99 

British   ISank  v. 

2.-)-,  l-vans  i;.  Mun- 

i;k  V.  Commission- 


PART   v.] 


CORPORATIONS. 


433 


in  question.  "We  did  so  receive  and  expend  for  legitimate  pur- 
poses. Wo  erred  in  making  the  payment  to  yon  in  an  objection- 
able form.  We  now  pay  our  just  and  lawful  debts  by  cancelling 
the  bank-notes  issued  by  us,  and  delivering  to  you  obligations  in 
the  form  of  bonds,  to  which  form  there  is  no  legal  objection." 
The  case  was  compared  to  one  where  the  city  borrows  on  itr  note 
at  usurious  interest,  from  a  bank,  a  sum  of  money ;  the  bank  sub- 
sequently cancelling  the  illegal  note,  refunding  the  excessive  in- 
terest, and  receiving  a  new  note  for  a  lawful  amount.  The  new 
note  would  be  valid  and  collectible.'  The  right  to  recover  on  the 
bonds  was  sustained.^ 

The  purchaser,  in  good  faith,  of  bonds  issued  by  a  county  for 
railroad  stock,  where  the  subscription  by  the  county  to  the  railroad, 
the  receipt  and  holding  of  the  stock  by  the  county,  the  necessary 
assent  of  the  qualified  voters  that  such  subscription  should  be 
made,  tlie  actual  issuing  of  the  bonds,  and  their  purehase  by  the 
plaintiff  without  knowledge  of  any  objection  to  them,  were  con- 
ceded, was  held  entitled  to  recover  the  amount  of  the  bonds  ;  the 
defendants  not  being  permitted  to  urge  as  a  defence  that  such  rail- 
road company  was  not  a  legally  organized  corporation  when  the 
election  was  held,  and  did  not  become  such  until  after  that  period.' 


1  Kent  V.  Walton,  7  Wend.  256. 

■^  Little  Hock  v.  National  IJaiik,  98 
L'.  S.  308  ;  Hitchcock  v.  Galveston,  96 
L'.  S.  341  ;  The  Mayor  v.  Ray,  19  Wall. 
468;  rilice  Jury  v.  IJritton,  15  Wall.  ot36; 
Mullarky  v.  Cedar  Falls,  19  Iowa,  24; 
Sykfs  V.  LalTery,  27  Ark.  407;  Wright  v. 
Hiigiies,  13  Inil.  109.  So  where  the  con. 
sideration  of  a  contract  declared  void  by 
statute  is  morally  good,  a  repeal  of  the 
stitute  will  validate  the  contract.  Wash- 
burn I'.  Franklin,  35  Harb.  599.  In  Key 
i>.  Goodwin,  4  Moo.  &  P  341,  351,  Tindal, 
C.  J,,  said;  "  I  take  the  effect  of  repealing 
a  statute  to  be  to  obliterate  it  as  com- 
pletely from  the  records  of  the  parliament 
as  if  it  had  never  passed,  and  that  it  must 
be  considered  as  a  law  that  never  existed, 
excejit  for  the  pnrpose  of  those  actions  or 
suits  width  were  commenced,  prosecuted, 
and  concluded  while  it  was  an  existing 
law."  Sei,  Butler  v.  Palmer,  1  Hill,  334 ; 
Curtis  c.  Leavitt,  15  N.  Y.  85;  The  People 
»  Livinrrston,  6  Wend.  526.  A  repeal- 
ing clause  is  such  an  express  enactment 
as  necessarily  devests  all  inchoate  rights 
which  have  arisen  under  the  statute  which 
it  destroys.  It  was  held,  in  the  Central 
Bank  v.  Empire  Stone  Dressing  Co.,  26 
Barb.  23,  that  a  repeal  of  an  act  which 
made  a  contract  illegal  on  the  gi-ounds 
of  public  policy,  repealed  also  the  conse- 
quences of  the  act,  even  as  to  contracts 
entered  i-ito  while  it  was  in  force. 


*  County  of  Davie.ss  f.  Huidekoper,  98 
U.  S.  98.  The  court  held  that,  if  assent 
is  given  to  a  specified  aid  to  a  railroad 
named,  a  perfection  of  the  railway  corpo- 
ration before  the  subscription  was  made 
and  the  bonds  issued  was  a  comidiance 
with  the  statute.  The  decision  of  the 
voters,  and  the  action  of  the  County  Court, 
under  such  circumstances,  in  issuing  the 
bonds,  and  subsequent  action  in  receiving 
and  retaining  their  benefits,  gives  validity 
to  the  bond.s,  and  they  are  to  be  taken  as 
valid  instruments.  'I'own  of  Coloma  v. 
Eaves,  92  U.  S.  4o4,  491  ;  County  of 
Kandolph  t-.  Post,  93  U.  S.  502  ;  County 
of  Leavenworth  v.  Barnes,  94  U.  S.  70  ; 
Commissioners  of  Dour^iass  County  v. 
BoUes,  lb.  104 ;  Commissioners  of  John- 
son County  V.  Thayer,  lb.  631;  County  of 
Cass  V.  Johnson,  95  U.  S.  360;  City  of  St. 
Louis  >.  Shields,  62  Mo.  247  ;  Smith  v. 
Clark  County,  54  Mo.  68,  SI.  In  an  ac- 
tion on  bonds  from  a  municipality  to  a 
company,  a  plea  of  nul  ticl  corporation  will 
not  be  permitted  where  the  munii-ipality 
has  solemnly  admitted  the  company's  cor- 
porate capacity  by  entering  into  the  obli- 
gation and  signing  the  bond.s.  State  v, 
Carr,  5  N.  H.  367 ;  President,  &c.  v. 
Thompson,  20  111.  200  ;  Hamilton  v.  Car- 
thage, 24  111.  22 ;  Kayser  v.  Bremen,  16 
Mo.  88. 


VOL.    I. 


28 


!  • 


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III  , 

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484 


COMMENTARIES   ON   SALES. 


[book  II. 


n 


The  consolidation  of  one  railroad  company  with  another  com- 
pany does  not  extinguish  the  power  of  a  county  to  subscribe,  nor 
destroy  the  privilege  of  the  company  to  receive  subscriptions ;  and 
this,  notwithstanding  that  before  such  consolidation  the  conHtitii- 
tion  of  the  State  has  been  altered,  making  such  subscriptions  con- 
tingent upon  the  vote  of  electors  not  previously  necessary  ;  and 
although  the  sul)Scriptions  be  made  to  the  consolidated  company, 
and  the  bonds  issued  after  the  provision  in  the  constitution  has 
become  operative.^ 

In  the  County  of  Warren  v.  Marcy,^  the  court,  adhering  to  its 
former  decisions,^  held  that  if  a  municipal  body  has  lawful  power 
to  issue  bonds  or  other  negotiable  securities,  dependent  only  upon 
the  adoption  of  certain  preliminary  proceedings,  such  as  a  jwpular 
election  of  the  constituent  body,  the  holder  in  good  faith  has  a 
right  to  assume  that  such  preliminary  proceedings  have  taken 
place,  if  the  fact  be  certified  on  the  face  of  the  bonds  themsolves, 
by  the  authorities  whose  primary  duty  it  is  to  ascertain  it.  And 
this,  although  prior  to  the  issuing  of  the  bonds  in  question,  pro- 
ceedings had  been  commenced  to  prevent  their  issue  ;  the  doctrine 
of  lis  pendens  not  applying  to  negotiable  paper.* 

A  city  council,  wliich  was  limited  by  the  city  charter  from  bor- 
rowing for  general  purposes  more  than  $50,000,  and  which  had 


'  County  of  Schuyler  v.  Thomas,  98 
U.  S.  169.  See  County  of  Suothuul  v. 
Thomas,  94  U.  S.  682  ;  Smith  v.  County 
of  Clark,  54  Mo.  58  ;  The  State  v.  Sulli- 
van County,  61  Mo.  522  ;  The  State  v. 
Greene  County,  54  Mo.  540  ;  County  of 
Callaway  w.  Foster,  93  U.  S.  567;  State  v. 
Maysville,  &e.  K.  R.  Co.,  13  B.  Mon.  1  ; 
The  Philadelphia,  &(!.  R.  R.  Co.  v.  Mary- 
land, 10  How.  376;  Tomlinson  v.  Branch, 
15  Wall.  460  ;  Branch  v.  City  of  Charles- 
ton, 92  I/.  S.  677  ;  The  Hannibal,  &c. 
R.  R.  Co.  V.  Miirion  County,  36  Mo.  294, 
304  ;  Hanna  v.  The  Cincinnati,  &e.  R.  R. 
Co.,  20  Ind.  30.  In  the  County  of  Bates 
V.  Winters,  97  U.  S.  83,  the  court  held, 
reversing  the  decision  of  the  court  below, 
that  as  the  recitals  in  the  bonds  showed 
on  their  face  that  the  bonds  had  been  is- 
sued without  legal  authority,  there  could 
be  no  bond  fide  holders  of  them  who  could 
recover  under  them.  In  Nauvoo  v.  Rit- 
ter,  97  U.  S.  389,  a  demurrer  to  pleas  ten- 
dering an  issue  as  to  the  authority  of  the 
municipality  to  issue  bontio  was  sustained, 
the  bonds  upon  their  face  by  their  recitals 
showing  such  authority. 

•■«  97  U.  S.  96. 

*  Commissioners  of  Johnson  County 
V.  January,  94  U.  S.  202  ;  Commission- 
ers of  Douglass  County  v.  Belles,  lb.  104, 
108;    Town    of   Coloma   v.    Eaves,    92 


U.  S.  484,  488;  Ly  de  v.  The  County,  16 
Wall.  6. 

*  See  County  t».  Rogei-s,  7  Wall.  181; 
5Iurray  v.  Lylburn,  2  JoJms.  Cli.  441 ; 
KiefFer  v.  Ehler,  18  Pa.  St.  388  ;  Wiiiston 
V.  Westfeldt,  22  Ala.  560  ;  Stone  v.  El- 
liott, 11  Ohio  St.  252;  Mims  v.  West,  33 
Ga.  18;  Durant  v.  Iowa  County,  I  Woohv, 
69  ;  Leitch  v.  Wells,  48  N.  Y.  .18,5  ;  ('itv 
of  Lexington  v.  Butler,  14  Wall.  2S3; 
National  Bank  of  Washington  v.  Texas, 
20  Wall.  72  ;  Olcott  v.  Siiporvisors,  16 
Wall.  678.  AntI  see  Murray  v.  Ballou, 
1  Johns.  Ch.  566,  which  is  the  leail; 
ing  American  case  on  the  suliji'it  of  to 
pendens;  and  sec  ante,  p.  38'.',  n.  3, 
on  this  subject.  The  court  In'M,  in  tjie 
County  of  Ray  v.  Vansycle,  96  U.  S.  6'5. 
in  a  case  of  doubt  as  to  the  valiility  of 
municipal  bonds,  that  the  doubt  txistiiig 
should  be  resolved  in  favor  of  tlu'  bond,ii(k 
holder  of  bonds,  where  the  aRi'iils  o(  the 
municipality,  invested  with  the  power  ol 
protecting  the  interests  of  tlin  munici- 
pality, and  charged  with  that  duty,  hail 
teen  parties  to  the  issuing  of  the  bonds, 
and  that  the  county  was  coneliuled,  nml'r 
the  facts,  by  the  acts  of  tlieir  olHcial 
agents,  and  by  their  own  failure,  either 
intentionally  or  from  neglect,  to  assert  by 
appropriate  proceedings  the  legal  right 
which  they  claimed  they  had. 


[book  II. 

another  com- 
subscribe,  nor 
criptions ;  and 
1  the  constitu- 
iscriptions  con- 
cecssary  ;  and 
ated  company, 
jnstitutiou  has 

idhcring  to  its 
,s  lawful  power 
;dcnt  only  upon 
ich  as  a  popular 
)od  faith  has  a 
igs  have  talccn 
lids  thcmsehcs, 
crtain  it.  And 
n  question,  pro- 
10 ;  the  doctrine 

lartcr  from  bnr- 
and  which  had 

le  V.  The  County,  W 

^ogei-s,  7  Wall.  "1; 
'2   Johns.  Ch.  441; 
'a.  St.  388  ;  Winston 
560  ;  Stoni'  v.  El- 
;;  Mim3  V.  West,  38 
•a  County,  1  Woohv. 
1  48  N.  Y.  t,i'> ;  <-'ity 
tier,    14  Wall.  233; 
^a.shinKton  v.  Texas 
|t   V.   Supervisoi's,  10 
e  Murray  v.  Ballou, 
which   is   tho  \ed; 
m  the  sul.jo.'t  ot  /i< 
ante,    p.   3S-2,  n.  3, 
fe  court  lu'ia,  ni  tlie 
'isycle,  9«U.  ^-.^'^l 
vs  to  the  vaUaity  ol 
it  the  doubt  I'xisting 
favor  of  tlu'toiid.n*' 
pro  the  aKi>nl3  of  the 
d  with  the  iiowcrol 
ests  of  the  muuicf 
with  that  duty,  Iw'l 
'.suing  of  the  honcS 
was  conclu.led,  m\y^ 
icts    of  their  othcial 
.  own  faihire,  either 
I  neglect,  to  assert  h) 
ngs   the   legal  right 
they  had. 


r.\RT  v.] 


CORPORATIONS. 


485 


r 


tic  power  to  contract  for  grading  and  paving  its  streets,  and 
which  had  contracted  for  the  doing  of  such  work  to  an  amount 
greater  than  *j<r)0,000,  to  be  paid  for  in  its  bonds,  was  held  liable 
even  on  the  assumption  of  such  bonds  being  illegal,  for  damages 
caused  the  |)laintiff8,  by  the  defendants,  by  the  breach  or  abroga- 
tion of  the  contract.' 

Legislative  authority  having  been  given  to  a  municipality  to  is- 
sue bonds  payable  in  not  less  than  five  nor  more  than  thirty  years, 
was  held  to  bo  substantially  complied  with  where  bonds  were 
dated  Sept.  10,  payable  in  thirty  years  from  Oct.  15,  and  were  not 
registered  by  the  auditor  of  the  State  until  Oct.  17.  The  court 
held  that  they  were  practically  thirty-year  bonds  ;  their  legal  ef- 
fect being  the  same  as  if  the  date  of  Oct.  15  had  been  inserted 
instead  of  Sept.  IO.2 

The  statutes  of  the  State  authorized  the  levying  of  a  tax  for 
county  purposes  of  one-half  per  cent.  In  addition  to  this,  author- 
ity was  given  to  counties  to  subscribe  for  stock,  and  to  "  issue 
bonds  therefor,  and  levy  a  tax  to  pay  the  same  not  to  exceed  one- 
twentieth  of  one  per  cent  upon  the  assessed  value  of  taxable  prop- 
erty, for  each  year."  The  United  States  Supreme  Court  held-'' 
(Waitc,  C.  J.,  and  Miller,  and  Bradley,  JJ.,  dissenting),  revers- 
ing the  decision  of  the  court  below,  that  the  special  tax  pro- 
vided for  was  not  thereby  made  the  only  fund  liable  for  the  bonds, 


»  Hitchcock  V.  Galveston,  96  U.  S.  341. 
The  jironiise  to  give  bonds  to  tlie  plaintitls 
in  payment  of  what  they  undertook  to  do 
wa.s  not  a  violation'  of  an  act  expressly 
nroliiliited  by  its  charter  or  some  otlier 
law,  but  was  a  ease  where  legislative  jwwer 
to  do  llic  act  liad  not  been  granted.  The 
promise  to  give  the  bonds  to  the  plaintiffs 
was,  tiierefore,  at  farthest,  only  tdtra  vires; 
and  in  .such  a  case,  though  specific  per- 
formance of  an  engagement  to  do  a  thing 
transf^rcssive  of  its  corporate  power  may 
not  lie  cidorccd,  the  corporation  can  be 
held  liable  on  its  contract.  Having  re- 
ceived benefits  at  the  expense  of  the  other 
contracting  party,  it  cannot  object  that  it 
wn.s  not  empowered  to  perform  what  it 
promised  in  return,  in  the  mode  in  which 
it  prnndsed  to  perform.  In  the  State 
Hoard  (if  Agriculture  v.  The  Citizens' 
.Street  Kv.  Co.,  47  Ind.  107,  it  was  lield 
that  altboiigh  tliere  may  be  a  defect  of 
power  in  a  corporation  to  make  a  contract, 
vet  if  a  contract  made  by  it  is  not  in  vio- 
lation of  its  charter,  or  of  any  statute  pro- 
hibiting it,  and  the  corporation  has  by  its 
promise  induced  a  party  relying  on  the 
promise  and  in  execution  of  the  contract 
to  exjieiid  money  and  perform  his  part 
thereof,  tlie  coriwration  is  liable  on  the 
contract.    See  also  Allegheny  City  v,  Mc- 


Cluikin,  14  Pa.  St.  81;  Maher  v.  Chicago, 
38  111.  266;  Oneida  Bank  v.  Ontario  Bank, 
21  N.  Y.  490;  Aig('iiti  v.  City  of  San  Fran- 
cisco, 16  Cal.  2.'')6  ;  .Silver  Lake  Bank  v. 
North,  4  .lohns.  Ch.  .370;  State  Bank  v. 
Leavitt,  14  N.  Y.  162;  Lcavitt  v.  Curtis, 
15  N.  Y.  9;  Chicago  v.  The  People,  48  111. 
416  ;  Allen  v.  City  of  Janesville,  3.")  AVis. 
403;  Sleejier  v.  BiiUcn,  6  Kan.  300:  Lou- 
isville  V.  Hyatt,  6  B.  Mon.  199;  Kearney 
V.  City  of  Covington,  1  Mete.  (Ky.)  339  ; 
Swift  V.  Williamsburgh,  24  Barb.  427. 

-  Township  of  Kock  Creek  v.  Strong, 
96  U.  S.  277.  The  court  held  that,  sub- 
stantially, the  legislative  direction  was 
followed,  iind  that  the  doctrine  of  Coiii- 
mi.ssioiier-  i'  Marion  County  v.  Clark,  94 
U.  S.  27  ,  V.::'  applicable  to  the  ca.se.  In 
that  case  Uie  bonds  bore  date  Sept.  3, 
1872,  but  tlipy  were  not  issued  and  deliv- 
ered until  the  4th  of  November  following  ; 
and  although  they  were  noniiiinlly  for  a 
longer  jicriod  than  that  for  which  they 
oould  be  legally  issued,  computing  the 
time  from  the  tlate,  yet  they  were  not  so, 
computing  the  time,  as  it  should  be  com- 
puted, from  the  time  of  their  execution, 
issue,  and  delivery. 

»  United  States  v.  County  of  Clark,  96 
U.  S.  211. 


''  f'li 

J. 

I  s 


Mi 


(    I 


436 


COMMENTARIES  ON  SALES. 


[book  II. 


but  was  provided  as  an  additional  security  for  their  payment,  the 
funds  of  the  county  otherwise  being  liable  for  such  bonds  as  fur 
any  other  debt.* 


1  Wt!  think  tlic  decision  of  tho  mnjoritj' 
Juliet's  is  moio  than  doubtful.  Tim  |)ro- 
vision  of  tlio  ciuirtur  in  thiit  tliu  muuiui- 
pitiity  desiring  ao  to  do  may  subscriho  to 
tlio ciiiiital  Htoulcof  a  coiii|iaiiy,  "and  may 
issue  Iwnds  therefor,  ami  liu-ij  a  tax  to  {hii/ 
the  S'lina,  not  to  exceed  onr-tweiitieth  of  one 
per  cent  upon  tho  assessed  value  of  taxable 
jiroperty  for  eaoh  year."  Tliey  uie  here 
eiiinowered  (1)  to  subsoribe  for  stoeli  ;  ('2) 
to  is.iM  bonds  there/or  i  (3)  to  levy  a  tax 
to  paj  the  same,  and  (4)  such  tax,  "to  pay 
the  same,"  is  not  to  ccccid  one-twentieth  of 
one  per  cent.  We  scai'cely  see  liow  a  lim- 
itation ou  the  powers  of  a  municipality 
could  be  more  (denriy  expressed  than  it 
liere  is;  ami  wo  think,  clearly,  with  Waite, 
C.  J.,  and  Miller  and  Hnullcy,  Ji'.,  who 
concurred  with  tho  decision  of  the  court 
below,  tiiat  "  the  act  under  which  tho 
bonds  wore  issued  limited  the  jmwer  of 
taxation  for  their  payment,  ami  that  tho 
lioMers  were  chargeable  with  notice  of  the 
limitation."  A  case  in  Missouri,  State  v. 
Shoiti'idge,  .'i(5  Mo.  126,  holding  in  accord- 
ance with  the  view  expressed  by  the  nd- 
nority  judges,  and  with  the  holding  in  tho 
Circuit  Court,  is,  we  think,  better  deeidtul 
than  was  the  case  in  tho  United  States 
Sujireme  Court.  In  State  v.  Shorlridg^, 
56  Mo.  at  p.  129  et  scq.,  tho  court  si  y  : 
"Tho  point  for  us  to  consiiler  is  whiither 
the  County  Court  of  Macon  is  prohibited 
by  section  thirteen  of  the  charter  of  the 
railroad  company  above  quoted  from  levy- 
ing in  one  year  a  tax  of  more  than  one- 
twentioth  of  one  per  cent  ujwn  the  as- 
sessed value  of  the  taxaltle  property  in 
the  county.  The  language  of  tho  section 
is  plain  and  positive,  and  will  hardly  ad- 
mit of  any  other  than  a  literal  construc- 
tion. It  reads  that  the  county  court  '  may 
issue  bonds  therefor,  and  levy  a4tix  to  pay 
the  same,  not  to  exceed  one-twentieth  of  one 
per  cent  upon  the  assessed  value  of  the 
taxable  property  for  each  year."  .  .  .  The 
very  law  authorizing  the  issue  of  the  l)onds 
in  question  also  limits  the  power  of  the 
County  Court  to  levy  a  tax  beyond  one- 
twentieth  of  one  |>er  cent  for  their  pay- 
ment in  any  one  year.  This  limitation 
was  enacted,  not  for  the  bondholders,  but 
for  tho  benefit  of  the  taxpayers,  so  that 
they  might  not  be  harassed  with  a  rail- 
road tax  in  any  one  year  too  grievous  to 
be  borne  ....  The  only  taxes  that  can 
be  levied  by  counties  are  such  as  are  pro- 
vided for  by  the  statute.  The  power  of 
taxation  is  a  sovereign  right  which  be- 
longs alone  to  the  State,  and  which  can 


only  be  exercised  in  pursuance  of  laws 
i)assed  by  the  legisK'nie  for  that  piiipo.sc. 
There  can  be  no  such  thing  as  an  iiii|ilii'.l 
power  in  a  County  Court  to  levy  a  lix. 
The  power  must  be  clearly  and  ex|iriv>ly 
given  by  statute.  We  are  called  ii|i()ii  tij 
compel  the  County  Court  of  Macon  Coiinty 
by  mandanms  to  do  that  which  tlic  law 
does  not  authorize,  but  expressly  pmliil). 
its.  In  my  judgment  this  inandanms  was 
properly  refused."  In  United  States  i'. 
County  of  Clark,  96  U.  S.  211,  tlicic  is 
an  attempt  made  to  distinguish  that  rasi! 
from  State  v.  Shortridge,  5rt  Mo.  12ti, 
which  we  do  not  tiiink  is  successful.  In 
the  one  case  the  mandamus  was  gnuitoil, 
and  in  the  other  it  was  relused.  lintli 
applications  were  tor  payments  in  exrcss 
of  those  provided  for  in  the  statute.  Tlie 
one  application  was  refused  on  the  gnninJ 
that  the  statute  did  not  authorize  l\w  ex- 
cessive payment ;  the  other  was  f^'atitcJ 
on  the  ground  that  the  statute  did  au- 
thorize the  excessive  payment.  Tin-  idiirt, 
in  the  ^ne  case,  decided  that  it  hail  no 
powe'  make  the  older  for  such  pay- 
men  court,  in  the  other  case,  di'- 

cide  't  had  such  )iower.     Tln'  'lis- 

tinction  which  was  sought  to  be  iiimli' 
was,  we  think,  a  distinction  without  a 
diiference,  namely,  that  while  the  i(niit 
had  no  jmwer  to  order  the  payment  hy  a 
special  tax  in  excess  of  tho  one-twciitiutli 
of  one  jier  cent  limited  by  the  statute,  it 
had  the  jwwer  to  order  the  payment  (if  a 
sum  greater  than  tho  linntation  lixnl,  to 
be  taken  out  of  other  taxes  ;  /.  <•..,  the 
tax  called  a  special  tax  shall  be  levied 
for  the  one-twentieth  of  one  per  cent,  ami 
the  other  taxes  shall  be  increased  (without 
calling  the  increase  a  special  tax)  lievonJ 
the  limitation  fixed  by  the  statute.  The 
case  of  State  v.  Shortridge,  56  M".  l'2t), 
was  decided  expressly  on  the  ground  tliiit 
the  taxpayers  might  not  be  harassid  with 
a  railroad  tax  in  any  one  year  beyond  the 
limit  fixed  by  the  statute.  The  case  of 
United  States  v.  County  of  Clark,  '»ti  L'..S. 
211,  decided  that,  notwilhstaiidiiif,'  the 
limitation  expressly  fixed  in  the  statute, 
they  might  be.  The  cases,  we  think,  are 
in  direct  antagonism,  and  that  it  is  only 
by  excessive  refinement  to  an  intangihle 
point  that  they  can  be  deemed  otherwise. 
The  holding  of  the  minority  judges  in 
United  States  v.  Clark,  96  U.  S.  211,  and 
of  the  court  in  State  v.  ShortI■id^'e,  5ti 
Mc.  126,  we  think  essentially  the  same, 
namely,  that  the  act  under  whieh  the 
bonds  v.-cre  issued  limited  the  power  of 


PAIIT   v.] 


CORPORATIONS. 


437 


la  New  Orleana  v.  Clark,*  it  was  held  that  whcro  an  ordinance 
provided  that  a  gas  company  was  to  "  guarantee  "  bonds  to  ho 
issued  to  t!iem  by  a  municipality,  bearing  interest,  payable  semi- 
monthly, "  and  assume  the  payment  of  the  principal  thereof  at 
maturity  ; "  the  guaranty  of  the  company  for  the  payment  of  the 
principal  and  interest  was  within  the  ordinance.  It  was  claimed 
that  tlie  guaranty  as  to  the  interest  was  unauthorized  by  the  or- 
dinance ;  but  the  court  held  that  that  view  was  not  justified  by 
the  language  used  in  it.  The  guaranty  of  the  bonds  embraced 
butli  the  principal  and  the  interest.  The  payment  of  bonds,  with- 
out other  designation,  always  implies  a  payment  of  the  principal 
Sinn  and  its  incident ;  and  a  guaranty,  in  similar  terms,  covers 
botli.  The  ordinance  contemplated  two  undertakings  by  the  com- 
pany ;  one  to  the  bondholder,  and  the  other  to  tlie  city.  The 
guaranty  was  to  be  for  the  security  of  the  bondholder.  It  was  to 
be  an  undertaking  to  answer  for  the  city's  liability,  and  to  be  col- 
lateral to  it.  The  other  undertaking  was  to  be  for  the  security  of 
tiic  city,  by  placing  the  company  under  obligation  to  provide  for 
the  payment  of  the  principal  of  the  bonds  at  their  maturity ;  an 
obliiration  which  otherwise  would  not  have  existed. 

Where  municipal  bonds  arc  invalid  from  some  irregularity  or 
omission  in  the  proceedings  by  which  they  were  created,  so  that 
they  could  not  be  enforced  in  the  courts  of  law,  but  they  still  rep- 
resL'ut  an  equitable  claim  against  the  municipality,  for  which  an 
equivalent  has  been  received,  and  payment  of  which  can  only  be 
escaped  on  technical  grounds,  the  power  of  the  legislature  to  pass 
an  act  requiring  the  payment  of  such  claim  is  clear.^  And  the 
constitution  of  a  State  which  provides  that  no  retroactive  law  shall 
be  passed,  does  not  forbid  such  legislation.  A  law  requiring  a 
municipal  corporation  to  pay  a  demand  which  is  without  legal 
obligation,  but  which  is  equitable  and  just  in  itself,  being  founded 
upon  a  valuable  consideration  received  by  the  corporation,  is  not 
a  retroactive  law;  any  more  so  than  an  appropriation  act  providing 
for  the  payment  of  a  pre-existing  claim.  The  inhibition  is  to  pre- 
vent retrospective  legislation  affecting  individuals,  and  thus  pro- 
tect vested  rights  from  invasion.^ 


taxation  "for  their  payment,"  and  that 
relief  could  not  be  looked  for  from  the 
courts,  but  from  the  legislature.  See  in 
aeenid  with  State  v.  Shortridge,  56  Mo. 
126;  Clark  v.  The  City  of  Davenport,  14 
lo'.va,  494  ;  Supervisors  v.  United  States, 
18  Wall.  71.  The  language  of  Strong,  J. 
(wlio  also  delivered  the  judgment  of  the 
coiirt  in  United  States  v.  Clark ),  in  Super- 
visors V.  United  States,  lb.  83,  where  he 
refers  to  the  notice  that  the  holders  of 


the  obligations  of  a  municipality  had  of  the 
conditions  connected  with  the  levying,  un- 
der the  laws  of  the  State,  of  a  sjH'cial  tax 
tor  their  payment,  is,  we  think,  as  appli- 
cable in  the  one  case  as  in  the  other. 

1  95  U.  S.  644. 

2  New  Orleans  v.  Clark,  95  U.  S.  644 ; 
The  People  v.  Burr,  13  Cal.  343;  Town  ot 
Guilford  v.  Supervisors,  &c.,  18  Barb.  616; 
13  N.  Y.  143. 

'  New  Orleans  v.  Clark,  supra. 


\\ 


,1 


\' 


u\ 


H 


n' 


*; 


i  41 

■4 


m  1 


438 


COMMENTARIES  ON  BALES. 


[book  II. 


u 


m 


The  majority  of  the  court  ir*  County  of  Cass  v.  Johnstoii,^  on 
the  question  of  the  validity  of  bonds,  held,  following  local  deci- 
sions in  Missouri  and  other  cases,'^  that,  where  the  constitution 
required  the  authority  of  "  two-thirds  of  the  qualified  voters  "  of 
the  municipality,  to  authorize  the  issuing  of  the  bonds,  two-thirds 
of  the  voters  who  actually  voted  on  the  qutistion  were  sufficient 
to  justify  the  issuing  of  the  bonds,  although  these  might  not  leji 
resent  "two- thirds  of  the  qualified  voters"  of  the  municipality. 
The  minority  judgment  by  Bradley  and  Miller,  JJ.,  dissenting 
from  this  holding,  we  think  the  better  one.  Suppose  that,  as  in 
other  instances,  the  election  could  only  be  held  on  the  requisition 
of  "  two-thirds  of  the  qualilied  voters  of  the  municipality,"  tiie 
registration  list  would,  unquestionably,  furnish  the  test  as  to 
whether  there  was  the  necessary  number  of  requisitionists  to  war- 
rant the  holding  of  the  election.  The  provision  that  the  credit 
shall  not  be  incurred  "  unless  two-thirds  of  the  qualified  voters  of 
such  municipality  .  .  .  shall  assent  thereto,"  we  think  is  equally 
as  clear.  The  majority  of  the  court,  we  think,  are  not  at  all  war- 
ranted in  the  conclusion  they  deduced  from  the  holding  in  State 
V.  Winklemeier.3  There  the  court  say  :  "  The  act  expressly  re- 
quires a  majority  of  the  legal  voters ;  that  is,  of  all  the  leijal  vot- 
ers of  the  city,  and  not  merely  of  all  those  who  at  a  particular 
time  choose  to  vote  upon  the  question."  And  although  the  court 
afterwards  referred  to  the  fact  that  there  had  been  more  than 
13,000  votes  polled  of  which  only  5,000  were  in  the  affirmative, 
saying,  —  "  It  is  evident  that  the  vote  of  5,000  out  of  18,000  is 
not  the  vote  of  a  majority,"  that  meant  no  more  than  declaring 
that  as  a  majority  of  "all  the  legal  voters"  was  required,  and  as 
there  was  not  even  a  majority  of  the  votes  actually  polled,  it  was 
clear  that  there  there  was  not  a  majority  polled  of  •'  all  the  legal 
voters ; "  the  part,  at  all  events,  not  being  greater  than  the  whole. 
And,  as  Bradley,  J.  shows,  an  analogous  clause  in  the  same  con- 
stitution *  which  declares  that '  no  bill  shall  be  passed  unless  by 
the  assent  of  a  majority  of  all  the  members  elected  to  «'aeh 
branch  of  the  General  Assembly,"  has  always  been  construed  as 
meaning  that  no  law  can  be  passed  unless  a  majority  of  the  nuni- 
bers  vote  for  it,  whether  all  are  present  or  not.  So,  in  annthor 
case,  in  even  more  exact  parallelism  with  County  of  Cass  i\  John- 
ston,^ where  jy  sec.  30  of  art.  4  of  the  constitution,  it  is  provided 

1  95  U.  S.  360. 

"  Sen  State  v.  Mayor  of  St.  Joseph,  37 
Mo.  270  ;  State  v.  IJimlor,  38  Mo.  450  ; 
State  V.  Sutterlield,  54  Mo.  391  ;  St.  Jo- 
seph Township  V.  l{oj?t'rs,  16  Wall.  644  ; 
Louisvilh'  &  N'ashvill.'  H.  R.  Co.  v.  Tlie 
County  Court  of  Davidson,  1  Siiueil,  6^3  , 


Taylor  v.  Taylor,  10  Minn.  107;  IVoiil.'  \\ 
WarfieM,  20  111.  1.59;  People  v.  (h\nv-,  47 
111.  24d,  People  r.  Wiant,  48  111.  'lf>'i 

«  35  Mo.  103. 

♦  Act  IV.  of  the  Coastitutiou  oi"  Mis- 
souri of  1865. 

'  95  U.  S.  360. 


EKS 


PART   v.] 


CORPORATIONS. 


439 


"  that  the  General  Assembly  shall  have  no  power  to  remove  the 
county -seat  of  any  county  unless  two-thirds  of  the  qualified  voters 
of  the  county,  at  a  general  election,  shall  vote  in  favor  of  such 
removal,"  it  was  held  that  these  terras  requirv;d  a  positive  vote  in 
the  ailirmative  of  two-thirds  of  the  q-alificd  voters  of  the  county  ; 
the  court  saying, —  "There  is  no  diH'culty  in  ascertaining  what 
that  number  is,  since  the  same  constitution  provides  for  a  regis- 
tration, and  points  out  who  the  qualified  voters  arc."  ^  Had  the 
cUiuse  re(]uired  only  the  assent  of  owo-thirds  majority  of  such  of 
the  voters  of  the  county  as  voted  at  such  election,  the  meaning 
would  i}e  clear,  and  County  of  Casi  i.  Johnston  would  have  been 
correct ;  but,  as  it  required  the  asscp*-  of  "  two-thirds  of  the  qual- 
IJied  voters  of  the  counti/"  we  think  it  is  equally  as  clear  that  the 
assent  of  a  less  number  than  "  two-thirds  of  the  qualified  voters  of 
the  county  "  was  not  sufficient,  and  that  County  of  Cass  v.  John- 
ston was  wrongly  decided,  and  that  Harshman  v.  Bates  County ,2 
which  it  affected  to  overrule,  is  the  better  law. 

Tlic  charter  of  a  railway  company  contained  the  power  to  con- 
struct a  branch,  and  gave  the  County  Court  power  to  subscribe 
stock  for  it,  and  an  act  of  the  State  legislature  authorized  such 
branch  and  stock  to  be  an  independent  interest.  The  bonds  of 
the  county  showed  that  they  were  made  to  the  parent  company, 
to  the  use  and  in  the  name  of  the  branch,  to  aid  in  building  said 
branch.  The  court  held,  that  the  purchaser,  therefore,  was  ap- 
prised by  the  law  that  power  existed  in  the  County  Court  to  issue 
sucli  bonds  without  any  election  of  the  people,  and,  there  being 
nothing  on  their  face  to  show  that  they  were  not  regularly  issued, 
it  was  not  incumbent  on  the  purchaser  to  inquire  whether  the 
railroad  company  had  pursued  all  the  regular  steps  necessary  to 
entitle  it  to  receive  the  bonds.  The  agents  of  the  branch  road 
having  had  the  bonds  for  sale,  the  purchaser  had  a  right  to  pre- 
sume that  they  were  lawfully  entitled  to  them  ;  and  the  fact  that, 
after  the  subscrijttion  was  made,  but  before  the  bonds  were  issued, 
the  parent  company  had  sold  and  assigned  a  portion  of  its  route 
with  its  franchises  to  anotlnr  compaiiy ,  did  not  alter  the  ease.'' 

A  prohibition  in  the  constitution  k^*  a  State  against  the  legisla- 
ture's authorizing  municipal  subsc  ij  lions  or  aid  to  private  cor- 
porations, does  not  take  away  any  authority  previously  granteu. 
It  only  limits  the  power  of  the  legislature  to  grant  such  author- 
ity for  the  time  to  come.*     And,  where  such  a  power  has  been 


ties  County  of  Henry  v.  Nicolay,  05  U.  S. 
619,  and  County  of  Warren  v.  Marcy,  97 


'  Stiito  V.  Sutterfield,  64  Mo.  391.  ti 

•^  U2  v.  .S.  6(i9.  619,  ~ 

'  (  oiinty  of  Henry  v.  Nicolay,  95  U.  S,  U.  S.  I(l7. 
filit.    Tlic^  court  in  t^ic  County  of  Case  v.  *  County  of  Scotland  v.  Thomas,   94 

'jillftt,  100  U.  S.  585,  followed  ns  aiUhori-  "   o.  682;  The  Stato  v.  Sullivan  County, 


n 


11, 


■\ 


i:    1 

i       ?"  ?  V 


1    )   i 


H 


'nl.| 


■|! 


U 


li^'' 


440 


COMMENTARIES  ON  SALES. 


[book  II, 


granted,  the  fact  that  the  company  which  has  been  granted  such 
aid  has  consolidated  with  another  company,  will  not  affect  the 
right  of  the  municipality  to  subscribe,  nor  the  privilege  of  the 
company  to  receive  the  aid,  nor  affect  the  bonds  of  the  municipal- 
ity issued  for  such  aid.^ 

A  municipal  corporation  ^nnnot  issue  bonds  in  aid  of  extrane- 
ous objects  without  legislative  authority,  of  which  all  persons  deal- 
ing with  such  bonds  must  take  notice  at  their  peril. ^ 

Not  only  the  courts,  but  individuals,  are  bound  to  know  the 
law,  and  cannot  be  allowed  to  plead  ignorance  of  it.  The  iKjlder 
of  municipal  bonds  can  claim  no  indulgence  on  that  score,  and 
can  take  no  advantage  from  the  allegation  that  he  is  a  bond  fide 
purchaser  without  notice.  Want  of  legislative  authority  by  the 
municipality  to  issue  bonds  is  a  fatal  objection  to  their  validity, 
no  matter  under  what  circumstances  the  holder  may  have  ob- 
tained tliem.3 

Bonds  of  the  kind  executed  by  a  municipal  corporation  to  aid 
in  the  construction  of  a  raih'oad,  if  issued  in  pursuance  of  a  power 
conferred  by  the  legislature,  are  valid  commercial  instruments, 
and,  if  purchased  for  value  in  tiie  usual  course  of  business  l)efore 
they  are  due,  give  the  holder  a  good  title,  free  of  prior  oiiuities 
between  antecedent  parties,  to  the  same  extent  as  in  case  ol'  bills 
of  exchange  and  promissory  notes.     Such  a  power  is  freiiucntiy 


51  Mo.  522  ;  Tho  State  v.  Greene  County, 
54  Mo.  540;  County  of  Callaway  v.  Fos- 
ter, 93  U.  S.  567;  State  v.  Maysville  &  L, 
Railroad  Co.,  13  B.  Mon.  1. 

1  County  of  Scotland  v.  Thomas,  94 
U.  S.  682  ;  The  State  i>.  Greene  County, 
64  Mo.  540;  The  Philadelphia  &  W.  Rail- 
road Co.  V.  Maryland,  10  How.  376  ;  Tom- 
linson  V.  Branch,  15  Wall.  460;  Branch 
V.  City  of  Ciiarli'ston,  92  U.  S.  677;  Smith 
V.  County  of  Clark,  54  Mo.  58;  The  Han- 
nibal  &  St.  .1.  Railroad  Co.  v.  Marion 
County,  36  Mo.  294,  304 ;  Hanna  v.  The 
Cincinnati,  Fort  Wayne  &  Ch.  U.  R.  Co., 
20  Ind.  30;  Town  of  East  Lincoln  v.  Dav- 
enport, 94  U.  S.  801. 

In  a  suit  by  a  bond  Jidv.  owner  of  the 
coupons  of  municipal  l)onds,  questions  of 
form  merely,  or  irregularity,  or  fraud,  or 
misconduct,  on  the  part  of  the  agents  of 
the  town,  caimot  be  considered.  There 
must  Ihj  nuth.jrity  in  the  municipality  to 
i.ssue  the  l)onds  by  the  statutes  of  the 
Stat*;.  If  this  cannot  be  found,  the  holder 
musi  fail.  If  it  exists,  he  is  entitled  to 
recover.  The  olficers  of  the  municipality 
are  not  the  agents  of  the  owner  of  the 
tonds,  but  are  the  agents  of  the  munici- 
pality, and  if  there  has  been  misconduct 
on  their    part,  the   muuicipality  rather 


than  a  stranger  must  bear  the  cotiscijuen. 
ces.  Town  of  East  Lincoln  i-.  Davi'iiiuirt, 
94  U.  S.  801.  A  municipality  is  fstupiied 
from  denying  its  liability  on  tln:if  bomls, 
in  the  hands  of  an  innocent  holdiT,  where 
the  bonds  have  iK-en  issued  iiml''!'  the 
order  of  the  (.'ounty  Court,  that  court  litiiig 
authorized  by  law  to  onler  thr  issuing 
of  such  bonds,  even  though  tlif  Cmiiity 
Court  in  ordering  such  issui'  nmy  li.ive 
had  some  misajjprehi'nsion  in  tlu'  matter. 
County  of  Cass  v.  Shores,  95  U.  S.  375. 
In  the  County  of  Leavenworth  .  IIhiik's, 
94  U.  S.  70,  the  United  States  SiiiHvme 
Court,  following  the  decisions  of  the  Su- 
preme Court  of  tho  State,  held  iiiuiiieipal 
bonds  to  lie  gotxl  as  to  a  homi  ./''/'•  I'Ui- 
ehrtser  of  the  bonds  without  notiee  ol'  the 
defences,  although  the  Ixinds  hul  been 
issued  without  a  strict  coniiiliaiiee  with 
all  the  iireliniiiuirv  formalities  re(|uiie(l. 

"  Town  of  South  Ottawa  i-.  Perkins, 
94  U.  S.  260  ;  Pendleton  Coiintv  v.  Aiuy, 
16  Wall  297  ;  Kenicott  v.  Tlie  Super- 
visors, 16  Wall.  452  ;  St.  .loseph  Town- 
ship V.  Rogers,  Ihid.  644  ;  Town  ol  Colonia 
V.  Eaves,  92  U.  S.  484. 

8  Town  of  South  Ottawa  v.  Peikius, 
94  U.  S.  260. 


II    .11- 


PART  v.] 


CORPORATIONS. 


441 


conferred  to  be  exercised  in  a  special  manner,  or  subject  to  cer- 
tain regulations,  conditions,  or  qualifications;  but  if  it  appears 
that  tlie  bonds  issued  show  by  their  recitals  that  the  power  was 
exorcised  in  the  manner  required  by  the  legislature,  and  that  the 
bunds  were  issued  in  conformity  with  the  proscribed  regulations 
and  pursuant  to  the  required  conditions  and  qualifications,  proof 
that  any  or  all  of  the  recitals  arc  incorrect  will  not  constitute  a 
defence  to  the  corporation  in  a  suit  on  the  bonds  or  coupons,  if  it 
appears  that  it  was  the  sole  province  of  the  municipal  officers 
who  executed  the  bonds  to  decide  whether  or  not  there  had  been 
an  antecodont  compliance  with  the  regulations,  conditions,  or  qual- 
ifications which  it  is  alleged  were  not  fulfilled. ^ 

A  municipality  must  have  legislative  authority  to  subscribe  to 
the  capital  stock  of  a  bridge  comjiany,  before  its  officers  can  bind 
tlie  body  politic  to  the  payment  of  bonds  purporting  to  be  issued 
on  that  account.  Municipal  officers  cannot  rightfully  di.spense 
with  any  of  the  essential  forms  of  proceeding  which  the  legisla- 
ture has  prescribed  for  the  purpose  of  investing  them  with  power 
to  act  in  the  matter  of  such  a  subscription.  If  they  do,  the 
bonds  they  issue  will  be  invalid  in  the  hands  of  all  that  can- 
not claim  protection  as  bo)i4  fide  holders.  To  be  a  bond  fide  holder 
one  must  be  himself  a  purchaser  for  value  without  notice,  or  the 
successor  of  one  who  was.  Every  man  is  chargeable  with  notice 
of  that  which  the  law  recjuires  him  to  know,  and  of  that  which, 
after  being  put  upon  inquiry,  he  might  Have  ascertained  by  the 
exercise  of  reasonable  diligence.  Every  dealer  in  municipal  bonds 
wliieli,  upon  their  face,  refer  to  the  statute  under  which  they  were 
issued,  is  bound  to  take  notice  of  ti  ■  statute  and  of  all  its  require- 
ments. And  where  bonds,  by  then  recitals,  show  that  the  bonds 
were  irregularly  issued,  and  not  binding  upon  the  municipality, 
they  carry  upon  their  face  unmistakable  evidence  that  the  torms 
of  vhe  law  under  which  they  purported  to  have  been  issued,  have 
not  been  complied  with.  While  a  purchaser  may  be  {)rotcctcd,  as 
he  sometimes  is,  by  false  recitals  in  municijtal  bonds,  thf  munici- 
pality lias  the  l)onefit  of  those  recitals  that  are  true.  And  whore 
coupons,  detached  from  the  bonds,  are  purchased,  and  on  their 
face  thoy  refer  to  the  bonds  and  purport  to  bo  for  the  interest  due 
thereon,  the  purclia.icr  is  put  upon  inquiry  for  the  bonds,  ami  is 
charged  with  notice  of  all  that  they  contain.^ 


'  <'iimmissioners  of  Miirion  County  v. 
Clark,  94  IJ.  S.  278  ;  St.  Joseph  Town- 
ship V,  l{ii;,'(>r.s,  16  Wall.  659;  Town  of 
(-'ulniiiii ,..  Haves,  92  U.  S.  484. 
^  ^  Ml  dure  V.  Townsliip  of  Oxford,  94 
^^  S  Vl\^ ;  GeorRfi  V.  Oxford  Township, 
16  KuQs.  72.    A  State  act  passed  prohibit- 


ing a  niunieipnlity  from  becoming  a  sub- 
scriber to  tlie  capital  stocit  of  a  railway 
company,  does  not  render  invalid  the  bonds 
of  a  municipality  issued  for  stock,  sub- 
scribed for  after  tlie  passage  of  tlio  pro- 
hibiting act,  but  under  an  act  in  force 
passed  before  the  prohibiting  act  was  en* 


^:    . 


^1  iiir; 


Mm 


'   •   !  ■■ 


:■:■ 


ll 


1 1 

I 


11 


.  '1 


442 


COMMENTARIES   ON   SALES. 


[book   II. 


Where  the  authority  of  the  majority  of  voters  w&s  required  to 
authorize  the  issue  of  county  bonds,  and  the  County  Court  judge, 
who  was  the  officer  designated  by  the  statute  to  decide  whctlier 
the  voters  had  given  the  required  sanction,  executed  and  issued 
the  bonds,  and  the  requisite  popular  sanction  was  set  forth  on 
their  face,  it  was  held,  in  Lynde  v.  The  County,^  as  a  settled  rule 
of  law,  that  where  a  particular  functionary  is  clothed  with  the  duty 
of  deciding  such  a  question,  his  decision,  in  the  absence  of  fraud 
or  collusion,  is  final.  It  is  not  open  for  examination,  and  neither 
party  can  go  behind  such  decision.  And,  under  such  circum- 
stances, where  the  bonds  are  in  the  hands  of  a  bond  fide  purchaser; 
he  is  not  bound  to  look  beyond  the  P'erment  on  their  face. 

In  National  Bank  of  Washington  v.  Texas,^  where  there  was  no 
evidence  that  bonds  of  the  United  States  which  had  been  issued  to 
Texas  in  1851,  and  after  the  rebellion  had  broken  out,  and  wliile 
it  existed,  were  transferred  by  Texas,  were  issued  for  unlawful 
purposes,  the  bonds  being  payable  to  bearer  ;  the  fact  that  in  1851, 
Texas  had  passed  an  act  providing  that  the  bonds  should  not  be 
available  in  the  hands  of  holders  until  they  were  indorsed  by  tlie 
governor  of  the  State,  neither  caused  those  bonds  to  be  unavail- 
able in  the  hands  of  the  holders  where  tliey  were  bond  fide  tal<en 
by  them  unindorsed  ;  nor  did  the  want  of  such  indorsement  imply 
that  they  had  been  obtained  by  the  holders  for  unlawful  j)urposes. 
As  far  as  the  cases  of  Texas  v.  White,'  and  Texas  v.  Hardenberg* 
differed  with  this  holding,  on  this  latter  point,  these  cases  were 
disapproved.^ 


acted.     County  of  Raiulolph  v.  Post,  93 
U.  S.  S02,  508. 

1  16  Wall.  6. 

a  20  Wall.  72. 

»  7  Wall.  718. 

♦  10  Wall.  68. 

*  Tho  court  hold  in  Texas  v.  White,? 
W.ill.  700,  and  Texas  v.  Hmilenberg,  10 
Wal  .  68  ;  1.  That  whm  a  State  by  "pub- 
lic statute  recjuiros  the  indorsement  of  its 
govrriior  as  a  j)rerei(uisito  to  the  valid 
trausfer  of  bov.ds  belonging  to  it.  and  pay- 
able to  itself  or  bearer,  tlie  holder  of  such 
bonds,  without  such  iuilorseincnt,  will 
have  no  title  as  against  the  State,  unless 
he  can  show  the  consent  of  tiie  State  other- 
wise given  to  the  tiaiisfer.  2.  That  an 
act  repealing  the  statute  re(iuiring  the  in- 
dorsement of  the  governor,  passed  by  the 
legislature  when  tl..;  State  was  in  rebellion 
against  the  United  States,  is  a  nullity  as 
to  bonds  issued  without  such  indorsement, 
and  for  the  purpose  of  aiding  the  i-ebellion. 
3.  That  such  bonds  remain  the  property 
of  the  State,  and  may  be  reclaimed,  or  the 
proceeds  thereof  recovered  in  a  proper  ac- 


tion by  that  State  when  the  rel!"llioii  has 
ceased,  against  any  one  in  ]i()s."Shiiiii  of 
the  same,  with  notice  of  tl-  ■  iiit'Ut  with 
which  tliey  were  issued  and  used.  4.  That 
the  existence  of  the  rebellion  at  the  time 
of  the  repealing  act  was  a  public  fart  with 
liotice  of  which  all  ,)ersons  were  ehiiivcd  ; 
and,  that,  when  the  bonds  were  piircliased 
after  they  had  become  payable,  the  pur- 
chaser took  them  subject  to  all  the  ei|iiit- 
able  rights  of  tlie  State  when  its  reiations 
to  the  Union  liad  been  restored,  lint,  in 
Huntington  v,  Texas,  16  Wall.  40'.',  the 
court  held,  that  if  the  bond  were  issiicil 
and  used  for  a  lawful  purpose,  the  title 
passed  to  the  holder  nnalleeted  by  any 
claim  of  the  State.  And  where  then'  is 
\»\w(  that  a  large  proportion  of  the  Imiiils 
issued  without  the  indoi'senient  of  the 
governor,  were,  in  fuel,  issued  for  IcL'iti- 
nmte  objects,  anil  were  applied  to  li'i,'iti- 
mate  purposes,  no|)resnmption  couhl  arise, 
from  the  absence  of  that  indorsement,  that 
the  particular  bonds  whiidi  might  Ix'  the 
subject  of  controversy  had  been  issued 
without  authority  and  for  an  unlawful 


PART   v.] 


CORPORATIONS. 


443 


nurposo.  The  presumption  in  such  a  case, 
esjK;ci.illy  alter  ♦heir  puymeut  by  the 
L'liiti'J  States,  would  be  in  favor  of  tlie 
lioliiers  of  the  bontls,  and  not  against 
tiiein.  For  the  United  States  were  tlie 
obli^'ors  of  tlie  bonds,  and  as  it  was 
agiiiiiJ't  the  United  States  tliat  tlie  rebel- 
liuii  hiiil  been  waged,  it  was  primarily  their 
iliity  to  ascertain  and  decide  whether  the 
lioiids  had  or  had  not  been  issued  and  used 
ill  aid  of  rebellion,  and  had,  tiierefore,  jire- 
siimptiveiy  passed  into  the  hands  of  hold- 


ers not  entitled  to  payment  as  a^inst  the 
reconstituted  State.  The  validity  of  the 
alienation  of  the  bonds  by  the  govern- 
ment actually  in  control  of  the  State  de- 
penils  on  the  obji'ct  and  i>nrpose  of  the 
alienation.  If  that  was  just  in  itself  and 
laudable,  the  alienation  was  valid.  If,  on 
the  contrary,  the  object  and  jmrpose  were 
to  break  up  the  Union,  and  to  over- 
throw the  constitutional  governineiit  of 
the  Union,  the  alienation  was  invalid. 


14:  i 


;  f 


■■  i  r 

.  ;  1: 


■*  V 


n 


'<  f-i 


i  I 


♦  n 


\h 


444 


COMMENTARIES  ON  SALES. 


[book  II, 


BOOK  n. 

PART  VI. 


SALES   BY  PARTIES  WHERE   FIDUCIARY  RELATIONS   EXIST. 

Fiduciary  relations  exist  between  the  directors  and  stockliold- 
ers  of  a  company,  as  well  as  between  co-partners  in  business, 
We  have  already  ^  discussed  some  matters  relating  to  sales  as  be- 
tween directors  and  stockholders,  and  in  the  Part  following  this 
we  consider  some  questions  of  a  special  character  relating  to  part- 
nership sales.  This  Part  we  devote  to  the  examination  of  tlie 
subject  connected  with  other  parties  between  whom  fiduciary  rela- 
tions exist. 

The  relationship  between  a  trustee  and  a  cestui  que  trust  is  one, 
and  the  leading  one,  of  a  fiduciary  character  ;  and  a  fiduciary  re- 
lationship may  generally  bo  described  as  one  in  respect  of  which, 
if  0  wrong  arise,  the  same  remedy  exists  against  the  wrong-doer 
on  behalf  of  the  principal  as  would  exist  against  a  trustee  on  be- 
half of  the  cestm  que  tru%t? 


1  In  Book  II.  Part  V.  ante. 

2  Per  Fry,  J,,  in  In  re  West  of  Eng- 
land and  South  Wales  District  Bank,  11 
Ch.  Div.  772,  778,  and  per  Jessel,  M.  11., 
ill  In  re  Hallett's  Estate,  13  Ch.  Div. 
696,  712.  In  tliis  latter  case,  it  was  held, 
that  if  money  held  by  a  person  in  a  fidu- 
ciary character,  tiiough  not  as  trustee,  has 
been  paid  by  him  to  his  account  at  his 
bankers,  the  jiersou  for  whom  he  held  the 
money  can  follow  it,  and  has  a  charge  on 
the  balance  in  the  bankei-s'  hands ;  that 
the  rule  in  Clayton's  Case,  1  Mer,  572, 
attributing  the  first  drawings  out  to  tiie 
first  payments  in,  does  not  apply  ;  and 
that  the  drawer  must  be  taken  to  have 
drawn  out  his  own  money  in  preference  to 
the  trust  money. 

The  rule  in  Clayton's  Case,  1  Mer.  572, 
608,  specifically  is,  that,  in  cases,  as  of  a 
banking  account  where  there  has  been  a 
continuation  of  doalings,  the  appropria- 
tion, in  the  absence  of  express  denhiration, 
can  only  be  made  on  the  grouml  of  pre- 
sumption arising  from  the  priority  of  re- 
ceipts and  pu^nents.     it  is  the  first  item 


on  the  debit  side  of  the  account  tlmt  is 
di.scharged,  or  reduced,  by  tlie  first  item 
on  the  credit  side.  The  appropiiatidii  is 
made  by  the  very  act  of  settin<;  tli-  two 
items  against  each  other.  If  any  other 
appropriation  is  to  be  made,  it  is  iiicu:n- 
bent  on  the  creditor  to  declare  his  inten- 
tion at  the  time  of  payment,  lint  when 
a  trustee  pays  trust-money  into  a  bank  to 
his  credit,  the  account  lieing  a  simple  ac- 
count with  himself,  not  marked  or  di  tin- 
guished  in  any  other  manner,  the  ileht 
thus  constituted  from  the  bank  to  liini  is 
one  which,  as  long  as  it  remains  due,  Ix^- 
longs  specifically  to  the  trust  as  in\u  li  and 
as  etfectually  as  the  money  so  \y.\\A  (Muld 
have  done,  had  it  specifically  been  phued 
by  the  trustee  in  a  particular  reimsiton' 
and  so  remained ;  that  is  to  say,  it'  the 
specific  debt  shall  be  claimed  on  bt  half  of 
the  cestuia  que  trust,  it  must  be  deemed 
specifically  theirs,  as  between  tliein,  on 
the  one  hand,  and  the  trustee,  and  hia 
executors  and  the  general  creditors  after 
his  <leath,  on  the  other.  This  state  of 
things  would  mt  be  varied  by  the  cir- 


[book  II. 


PIONS   EXIST. 

md  stock  hold- 
8  in  business, 
to  sales  as  be- 
following  tills 
jlating  to  part- 
ination  of  tlie 
fiduciary  rcla- 

ue  trust  is  one, 
a  fiduciary  le- 

ipect  of  which, 
he  wrong-doer 
trustee  oil  be- 


ho  account  th.it  is 
by  the  lirst  item 
:ie  apiiroj)iiiitiuii  is 
of  setting  tli-  two 
ler.     If  any  itlicr 
made,  it  is  inci.;n- 
declare  his  iiiten- 
ynieiit.     Hut  wln'n 
)ncy  into  a  Iwiik  to 
heinj;  a  siiii|ili'  no- 
marked  or  ih  .tin- 
manner,   the  ilelit 
the  bank  to  iiim  is 
it  remains  due,  t)0- 
trust  as  n\iu  li  ami 
oney  so  i>iud  could 
"tically  been  I'liiceil 
rticular  rt'iiository 
,t  is  to  say,  i!'  tiie 
aimed  on  behalf  of 
,t  must  be  ilci'iiiid 
between  tla'iii,  on 
.6  trustee,  and  his 
eral  creditors  after 
cr.     This  state  of 
varied  by  tlie  cir- 


PART  VI.] 


FIDUCIARY  RELATI0N9. 


445 


The  principle  relating  to  contracts  between  parties  where  fidu- 
ciary relations  exist  between  them,  has  been  long  settled  oy  many 


cumstanco  of  the  bank  holding  also  for 
the  trustee,  or  owing  also  to  him,  money 
ill evcrv  sense  his  own.  Pennell  v.  Delfell, 
4  De  ti.  M.  &  G.  383.  And  as  between 
the  (eat id  que  trust  and  trustee  the  mixing 
up  ot  tlie  fund  is  immaterial  so  long  as 
there  is  a  fund  on  which  the  cestui  que 
lni.^1  <'an  lay  his  hands.  And  it  makes 
HO  (litl'erene.e  that  instead  pf  trustee  and 
cestui  ijiii'  trust,  it  is  a  case  of  fiduciary 
ivlatioiislii[).  In  re  West  of  England  and 
South  Wales  District  Bank,  11  Ch.  Div. 
77-.',  778  ;  per  Fry,  J.  ;  but  who,  in  the 
ease  really  liolds  the  contrary,  but  is  over- 
nilc'il  on  the  point,  and  the  above  stated 
iiriiiii|ile  sustained,  in  In  re  Hallett's  Es- 
tate, l.JCli.  Div.  708. 

Tlie  iiiiidern  doctrine  of  equity  as  re- 
garils  ]ir(>iierly  dispostid  of  by  persons  in 
a  fi(liiiiiiiy  relation  is  a  very  clear  and 
well-estaliiishcd  doctrine,  and  is  thus  laid 
down  by  .iessel,  M.  U.,  in  the  last  above 
rited  ease,  In  ra  Hallett's  Estate,  13  Ch. 
IMv.  7t'8  :  "  You  can,  if  the  sale  was 
ni,'litriii,  take  the  proceeds  of  the  sale,  if 
you  eaii  idenaty  tiiom.  If  the  sale  was 
wronjjt'iil,  you  can  still  take  the  proceeds 
of  the  sale,  in  a  sense  adopting  the  sale 
for  the  [iiMpose  of  taking  the  proceeds,  if 
you  eaii  identify  them.  There  is  no  dis- 
timtioii,  therefore,  between  a  rightful  and 
a  wron,i;l'iil  disposition  of  the  profwrty,  .so 
far  as  ngaids  the  right  of  the  beneficial 
owner  to  follow  the  proceeds.  But  it  verj- 
often  liiiiipeiis  that  you  cannot  identity 
the  proceeds.  The  proceeds  may  have 
Km  invested,  together  with  money  be- 
loiijiiiig  to  the  person  in  a  fiduciary  posi- 
tion, ill  a  purch.iso.  He  may  have  bought 
land  with  it,  for  instance,  or  ho  may  have 
bought  chattels  with  it.  Now,  what  is 
the  iiositiiin  of  the  l)eneficial  owner  as  re- 
gards siidi  purchases  ?  I  will,  first  of  all, 
take  his  position  when  the  purchase  is 
eleaily  made  with  what  I  will  tall,  for 
sliorttiess,  the  trust-money,  although  it  is 
not  eoiilined,  ,as  I  will  show  presently,  to 
cxincss  trusts.  In  that  case,  according 
to  the  now  well-established  doctrine  of 
e(iuity,  the  beneiieial  owner  has  a  right 
to  elect  either  to  take  the  property  jmr- 
chaseil  or  to  hold  it  as  a  security  for  the 
amount  of  tiie  trust-money  laid  out  in  the 
[luivhase  ;  or,  as  wn  genendly  exprc ,  it, 
he  is  entitled,  at  his  election,  <"•'  .er  to 
take  the  projierty  or  to  have  a  i,<iargc  on 
the  I'roperty  for  the  amount  of  the  trnst- 
money.  Hut  in  the  second  case,  where  a 
tnistee  has  mixed  the  money  with  his 
own,  there  is  this  distinction,  that  the 
usini  que  trust,  or  lieneficial  owner,  can 
no  longer  elect  to  take  the  property,  be- 


cause it  is  no  longer  bought  with  the 
trust-money  simply  and  purely,  but  with 
a  mixed  fund.  lie  is,  however,  still  en- 
titled to  a  charge  on  the  property  pur- 
chased for  the  amount  of  the  trust-money 
laid  out  in  the  purchase  ;  and  that  charge 
is  ipiite  inde])endent  of  the  fact  of  the 
amount  laid  out  by  the  trustee.  The 
moment  you  get  a  substantial  portion  of 
it  furnished  by  the  trustee,  using  the 
word  'trustee'  in  the  sense  I  have  men- 
tioned, as  including  all  persons  in  a  fidu- 
ciary relation,  the  right  to  the  charge 
follows."  This  is  a  very  clear  exposition 
of  the  law  on  the  subject  ;  and,  in  this 
connection,  there  is  no  distinction  be- 
tween an  exju'ess  trustee  or  an  agent  or 
a  bailee,  or  a  collector  of  rents,  or  any- 
body else  in  a  fiduciary  ])osition,  Iwcause 
the  beneficial  ownership  is  the  same  wher- 
ever the  legal  ownership  may  be.  If  you 
have  goods  bargained  and  sold  to  a  man 
upon  trust,  to  sell  and  hand  over  the  net 
proceeds  to  another,  that  other  is  the 
beneiieial  owner  ;  but  if  instead  of  being 
bargained  and  sold,  so  as  to  vest  the  legal 
ownership  in  the  trustee,  they  are  dejios- 
ited  with  him  to  sell  as  agent,  so  that  the 
legal  ownership  remains  in  the  beneficial 
owner,  tht^  rights  of  the  beneficial  owner 
are  not  dilferent  in  a  court  of  equity,  he 
being  entire  beneficial  owner  in  both 
cases.  The  moment  you  get  into  a  court 
of  equity,  where  a  prineiiial  can  sue  an 
agent  as  well  as  a  cestui  que  trust  can  sue 
a  trustee,  and  establish  the  exi.stence  of  a 
fiduciary  relation,  the  modern  rules  of 
ecpiity,  as  regards  following  trust  money, 
apply.     Ill  id. 

The  old  doctrine,  making  a  distinction 
between  following  money  in  the  hands  of 
one  in  a  fidiu.'iary  relation  and  following 
goods,  as  in  Wiiiteconib  v.  Jacob,  1  Salk. 
ItJl,  is  now  cxjdoded.  Thus,  in  that  case, 
it  is  said  :  "If  one  p;n]iloys  a  factor  and 
entrusts  him  with  the  disposal  of  mer- 
T-liandise,  and  the  factor  receives  the 
money  and  dies  indebted  in  debts  of  a 
higher  nature,  and  it  ujqiears  by  evidence 
that  this  money  was  vested  in  other  g(.od.s 
and  remains  unjiaid,  those  goods  shaii  bo 
taken  as  part  of  the  merchant's  estate 
and  not  the  factor's  [that  is,  you  may  fol- 
low the  money  or  the  goods]  ;  but  if  the 
factor  have  the  money,  it  shall  be  looked 
upon  as  the  factor's  estate,  and  must  first 
answer  the  debts  of  a  superior  creditor, 
etc.;  for,  in  regard  that  money  has  no 
ear  mark,  eipiity  cannot  follow  that  in 
behalf  of  him  that  employed  the  factor.'' 
Ryall  V.  Kolle,  1  Atk.  165,  is  to  the  same 
eti'ect,  namely,  that  yoa  can  follow  the 


!  ^  *  '  i 


i 


I  A 


,         :  I     '      I 


i! 


■ 


11  r*n 


i:) 


446 


COMMENTARIES  ON   SALES. 


[book  II. 


well-known  decisions,  yet  the  courts  havo  always  been  careful  not 
to  fetter  this  useful  jurisdiction  of  courts  of  equity  over  the  deal- 


goods,  but  you  cannot  follow  nioiu-y. 
Anil  so  are  AV  parte  DuiniiH,  1  Atk.  232  ; 
Seott  c.  Suiiuan,  Willes,  400  ;  Kx  parte 
Sayers,  5  Ves.  lt!9.  Hut  tiiis  ruin  was 
long  since  douliti'd,  and  is  now  ooinplutdy 
overthrown.  It  was  tiuestioned  by  Lord 
£ldon,  in  Lord  Clieetwortli  v.  Kdwards, 
8  Ves.  •10,  where  stock  and  money  were, 
by  tlio  wrongful  net  of  one  in  a  tidueiary 
relation,  confounded  with  his  own  ;  and 
Lord  Eldon  expressed  the  opinion  that 
there  was  fair  groumi  to  say  that  tlio 
party  having  nii.\ed  them  should  nut  be 
])ermitt(;d  to  dispose  of  them  until  he 
sliould  have  satisfactorily  distinguished, 
by  an  answer  in  eijnity,  that  wliich  in 
conscience  ho  ntn-er  ought  to  have  mixed. 
And,  acting  on  this  view,  an  injunction 
was  ordered  acconlingly  ;  hut  a  few  days 
afterwards  Lord  Kldon  varied  the  order 
by  confining  the  injunction  to  the  stock  ; 
oDserving  that  it  would  bo  too  much  to 
grant  it  as  to  the  money  at  the  bankers, 
as  the  last  payment  was  made  two  years 
previously;  and  "  it  was  too  much  to  infer 
that  it  was  the  same  money  unconverted." 
The  matter  is,  however,  now  no  longer 
one  of  doubt.  In  I'anton  v.  I'anton,  in 
the  Court  of  Kxcheipier  (cited  in  Lupton 
V.  White,  15  Ves.  435,  440),  the  defend- 
ant remitted  considerable  sums,  the  prop- 
erty of  the  ]>laintiir,  with  money  of  his 
own,  to  an  agent  in  London,  to  be  laid 
out ;  and  tho  securities  were  changed  for 
the  purpose  of  misleading,  and  making  it 
iinpo  'le  for  the  plaintilf  to  distinguish 
his  pruiicrtj',  part  being  clearly  iiroperty 
of  the  defendant.  The  court  held,  that, 
the  confusion  being  occasioned  by  him 
who  so  dealt  with  the  property,  the  dis- 
tinction lay  upon  liini ;  and  if  he  could 
not  distinguish  what  was  his  own,  the 
whole  must  be  considered  as  belonging  to 
the  other.  The  same  principle  was  acted 
on  in  Armory  v.  Delamirie,  1  Str.  505, 
where  a  goldsmith  imi)roperly  detained 
from  a  poor  boy  a  diamond  which  the  lioy 
had  found  ;  and  the  court  held,  in  an  ac- 
tion of  trover  for  the  jewel,  that  as  the 
defenda.it  did  not  |)roduee  the  jewel,  and 
show  it  not  to  be  of  the  finest  water,  tho 
valuo  of  the  best  jewels  was  the  measure 
of  damages.  The  principle  of  these  cases 
was  applied  by  Lord  Eldon,  in  Lujiton  v. 
White,  15  Ves.  432,  with  reference  to  the 
niixturo  of  money  by  one  in  a  fiduciaiy 
relation,  in  which  it  was  hel<l  that  an 
agent  or  bailiir,  confounding  his  princi- 
pal's money  with  his  own,  wi\s  to  be 
charged  with  the  whole,  except  what  he 
could  prove  to  lie  his  own.  In  Pennell  v. 
DeffelC  4  De  G.  M.  &  G.  372,  Green,  an 


oflicial  a.ssignce  in  bankruptcy,  was,  in 
that  character  and  otherwise,  a  trustee  |'(ir 
various  persons  and  i>urposes,  and  as  such 
paid  various  sums  into  a  bank  to  his  own 
credit,  which  were  mixed  with  his  own 
moneys.  Various  sums  having  been  di;iwn 
by  (ireen  on  dilferent  accounts,  the  MnstiT 
of  tho  HoUs  held  that  the  balance  fDiiiiid 
a  part  of  his  general  personal  estate.  Tlie 
Court  of  Appeal  in  Chancery  icversed  tin; 
decision.  'Iho  princi|ile  goveriiiiii^  smh 
cases  is  so  clearly  and  conclusively  statt'il 
by  Lord  Justice  Turner  in  his  juil;,'iiiiiit, 
that  we  (juote  from  it  at  coiisidiiaUe 
length,  as  tho  case  must  be  eonsiili'ioil 
one  of  the  leading  cases  on  the  iiiinlcrn 
rule.  He  says:  "The  balance  due  to 
Green  at  the  time  of  his  death,  on  his 
account  with  the  Bank  of  Kiii,'l,iiiil, 
amounted  to  jei'JSS  lis.  8(/.,  and  the  lial- 
ance  due  to  him  at  the  time  of  his  death  on 
his  account  with  the  London  Joint  .'^tink 
Hank,  amounted  to  412174  Os.  lOi/. ;  and 
these  balances  form  the  subject  of  the  pivs- 
ent  contention.  ln(|uiries  having  been  di- 
rected by  the  decree  upon  the  subject  of 
these  balances,  the  Master,  bv  his  reimrt, 
found  that  tho  whole  of  the  t'llKSH  1  Is.  8'/., 
the  balance  on  the  Hank  of  Kngland  ac- 
count, and  £2088  14».  8'^,  jiart  (d'  tin; 
£2174  0?.  10(/.,  the  balance  on  the  Lon- 
don Joint  Stock  aci.'ount,  belonged  to  the 
estates  represented  by  tJreen  as  assignee 
or  trustee  ;  but  this  reiwrt  having  been 
excepted  to,  the  Master  of  the  Rolls,  upon 
hearing  the  exceptions,  decided  that  the 
whole  of  the  i:i!)«8  Us.  8i/.,  the  bahince 
of  the  Hank  of  England  account,  and  tiie 
whole  of  the  A'2174  Os.  lO*/.,  the  balance 
of  the  London  Joint  Stock  Hank  acc<jnnt, 
belonged  to  and  formed  jiart  of  the  gi  iieral 
estate  of  Green.  The  conclusinn  at  wliich 
the  Master  of  the  HoUs  has  arrived  rests 
upon  the  ground  that  the  moneys  belonf;- 
ing  to  the  estates  represente(l  by  (ireen 
cannot  be  followed  into  the  ban'. ing  ac- 
counts ;  and  the  first  ([uestion  liidi  we 
have  to  consider  upon  this  apjieal  is, 
whether  that  conclusion  is  well  Imindcd, 
"It  is,  I  apprehend, an  undoubted  prin- 
ciple of  this  court,  that,  as  betW'cii  ci^i'd 
que  trust  and  trustee,  and  all  jwitics 
claiming  under  the  trustee,  otleiwise 
than  by  purchase  for  valuable  considera- 
tion without  notice,  nil  property  In  lon>;- 
ing  to  a  trust,  however  much  it  may  be 
changed  or  altered  in  its  nature  or  i  liar- 
acter,  and  all  the  fruit  of  such  ]ivv,- rty, 
whether  in  its  original  or  in  its  altered 
state,  continues  to  be  subject  to  or  all'ccted 
by  the  trust;  and  from  this  principle  I  do 
not  understand  the  Master  of  the  Hulls 


PART    VI.] 


FIDUCIARY  RELATIONS. 


447 


ings  of  persons  occupying;  those  relations,  by  defining  the  exact 
limits  of  its  exercise.     The  general  doctrine,  however,  is   that 


to  have  in  any  ilcf^ivu  dissented.  Several 
iiiscs  illiistratinf{  tliu  i)i'inci|)lu  were  eited 
ill  the  iirgiinient ;  but  perliaps  it  cannot 
be  liL'tter  illustrated  than  by  referriiij^  to 
a  case  of  familiar,  almost  daily,  oeeur- 
ri'iue,  —  the  ease  of  trust-moneys  em- 
pleynl  in  trade.  An  executor  of  a  de- 
(cascd  partner  eontinues  his  capital  in 
the  trade  with  the  concurrence  of  the  sur- 
viviiif,'  partners,  and  carries  on  the  trade 
witli  them.  The  very  cajiital  itself  niay 
ciin>i>t  only  of  the  bulani,-  which  at  the 
(Icalh  of  the  paitner  was  due  to  him  on 
the  result  of  the  partnership  account. 
Tliat  capital  may  have  no  existence  but 
ill  the  stock-ill-trade  and  debts  of  the 
Iiaitiiershi|i.  The  stock-in-trade  and  lU'bts 
may  uii(lei>;o  a  continual  course  of  change 
niiii  lliictuatioii;  and  y>  t  this  court  follows 
the  trust  capital  throughout  all  its  ramiti- 
catioiis,  and  gives  to  the  iKjneficiaries  of 
the  deceased  partner's  estate  tlie  fruits 
(lerived  from  that  capital  so  continually 
altered  and  changed.  We  have  here,  I 
think,  the  most  perfe(.'t  instance  of  the 
extent  to  which  the  doctrine  of  following 
trust  jiroperty  has  lieen  carried  by  the 
court,  —  an  instance,  too,  which  exempli- 
fies tilt;  dilliculties  with  which  the  court 
has  felt  bound  to  grajjple  for  the  purjiose 
of  carrying  out  that  doctrine;  for  nothing 
can  he  more  diilicult,  nothing  more  iucon- 
veniciit,  than  to  follow  out  such  a  case  to 
its  results.  But  of  course  in  tho.se  cases, 
as  in  other  cases,  the  jiroperty  which  is 
the  subject  of  th(^  trust  must  in  some 
manner  lie  ascertained  ;  and  it  is  upon 
this  point  of  the  .suppo.sed  impossibility  of 
nscerlaining  what  ]iortion  of  the  balances 
at  the  bankers'  belonged  to  tlie  trust,  and 
what  jiortion  to  the  se|iarate  estate  of 
Oreeii,  the  judgment  of  tlie  Master  of  the 
Rolls  in  this  case  has  proceoded.  These 
halances,  it  is  said,  are  derived  from  two 
sources,  —  the  trust  estate  and  the  pri- 
vate estate.  How  is  it  to  be  ascertained 
what  portion  of  them  is  derived  from  one 
souive,  and  what  portion  from  the  otlier  ? 
Is  it,  I  Would  ask,  more  ditlicult  to  asecr- 
tiiin  this  than  to  ascertain  what  part  of 
the  prolits  of  a  partnership  are  to  be 
nttriliUted  to  the  capital  of  a  deceased 
jiaitner,  with  the  sujieradded  diHiculty, 
jii'ihaps,  of  jiortions  of  tha'  capital  having 
Wen  from  time  to  time  drawn  out  ?  It 
may  be  said  that,  in  the  case  to  which 
I  have  referred,  the  court  has  a  sub- 
stratuui  on  which  to  proceed,  —  the  as- 
certained amount  of  the  deceased  partner' .s 
share ;  but  is  there  not  eciually  a  sub- 
stratum in  the  case  before  ua,  in  the 
amount  of  the  trust-moneya   paid  into 


the  banking  house  ?  Again,  it  may  be 
said,  that  in  the  case  to  wliich  I  have 
referred  are  rules  and  principles  by  which 
this  court  is  guided  in  deterniiniiig  what 
belongs  to  the  estates  of  deceased  part- 
ners, —  rules  ami  iirin('iples  which  are 
not  even  yet,  perhaps,  clearly  settled  and 
dellned.  But  Ufore  we  part  with  this 
<piestion  upon  that  ground,  we  must  in- 
(piire  whetlier  there  are  not  also  rules  ami 
liriiicijilcs  by  which  Mr^s  court  may  be 
guidetl  in  determining  what,  in  such  a 
ease  as  the  iiresent,  belongs  to  the  trust 
estate.  In  order  to  test  the  ijuestion 
whether  it  be  true  that  it  cannot  be  ascer- 
tained what  portion  of  the  balances  at  the 
bankers'  belonged  to  the  trust  estate,  let 
us  siin]ilify  the  case.  Mupiiose  a  trustee 
jiays  into  a  bank  moneys  belonging  to  his 
trust  to  an  account  not  niarkeil  or  distin- 
guished as  a  trust  accouTit,  and  pays  in  no 
other  moneys,  could  it  be  for  one  moment 
denied  that  the  moneys  standing  to  the 
account  of  the  debt  due  from  the  bankers, 
arising  from  the  moneys  so  jiaid  in,  would 
belong  to  the  trust,  and  not  to  the  jo-i- 
vate  estate  of  the  trustee  >.  Then  sup- 
jiose  the  trustee  subse(|ucntly  pays  in 
moneys  of  his  own,  not  belonging  to  the 
trust,  to  the  same  account.  Would  the 
character  of  the  moneys  which  he  had 
before  paid  in,  of  the  debt  which  had 
before  accrued,  be  altered  ?  Again,  sup- 
pose the  trustee,  instead  of  subseciuenfiy 
I'iiying  moneys  into  the  bank,  draws  out 
part  of  the  trust-moneys  which  he  has 
before  paid  in,  would  "the  remainder  of 
those  moneys,  and  of  the  delit  contracted 
in  respctt  of  them,  lose  their  trust  char- 
acter ?  Then,  can  the  cinnimstancc  of 
the  account,  consisting  of  a  continued 
.series  cf  ni'iiey  paid  in  and  driwn  out, 
alte'  the  ]irinci|ile  ?  It  may,  indeed,  in- 
crease the  dilliculty  of  ascertaining  what 
belongs  to  the  trust  ;  but  I  sec  no  possible 
ground  on  which  it  can  allect  the  jirin- 
ciple.  .  .  .  With  deference  to  the  Master  of 
the  Rolls,  I  do  not  think  that  the  case  of 
Massey  i'.  Iianiier,  1  Jac.  &  W.  241,  on 
which  he  has  mainly  relied,  sup|iorts  the 
conclusion  at  which  lie  has  arrived.  That 
case,  as  1  understand  it,  establishes  no 
more  than  thi-';  that  a  trustee  who  pays 
in  moneys  to  hit  own  account  at  his 
banker's  is  liable  to  his  trMiiLi  que  tri^- 
tent  for  the  moneys  which  he  has  so  jmid 
in,  as  he  well  may  be.  lie  has  no  ri^tht 
to  mi.K  the  trust-moneys  with  his  own,  cr 
to  subject  his  cestuis  que  trimtent  to  the 
dilliculty  of  separating  them.  It  is  one 
tiling,  however,  to  say  that  the  trustee  is 
liable  for  moneys  so  paid  in,  and  another 


*t. 


m 


I 
I 


i'i 


t: 


iif 


■W 


lU 


1 


448 


COMMENTARIES  ON  SALES. 


[book  II. 


wherever  two  persons  stand  in  such  a  relation,  that,  while  it  con- 
tinues, confidence  is  necessarily  reposed  by  one,  and  the  infiut-nce 


it 


I. 


that  the  eestuis  que  trust  arc  not  entitled 
to  the  benefit  of  separating  tiie  trust 
moneys,  if  it  be  in  their  power  to  do 
so." 

With  all  this  which  wo  have  qtioted  we 
fully  concur,  as  well  as  with  all,  to  the 
same  purtxirt,  in  the  judgment  of  Lord 
Justice  Knight  Bruce  in  the  same  case  ; 
and  think  that  the  judgment  of  Fry,  J., 
on  the  point,  in  Ex  parte  Dale  &  Co.,  11 
Ch.  Div.  774,  where  he,  in  elfect,  held, 
contrary  to  the  holding  in  IV-nnell  v.  Def- 
fell,  4  De  G.  M.  &  G.  372,  that  where  a 
bank  stood  in  a  fiduciary  relation  towards 
the  claimants,  though  money  which  they 
had  received  under  their  special  agency,  if 
it  hail  been  kept  separate  from  all  the 
other  moneys  in  the  bank,  or  if  it  had 
been  invested  rightfully  or  wrongfully  in 
some  property  into  which  the  specific 
money  could  be  traced,  the  money  or  the 
proiii-rty  into  which  the  money  had  gone 
could  be  followed,  but  not  if  any  tnixtiire 
had  taken  place,  ia  not  on  this  latter  point 
law,  and  was  very  properly,  though  very 
caustically, condemned,  am',  in  elfect, over- 
ruled in  III  re  Hallett's  Estate,  13  Vh.  Div. 
696.  See  Cheetworth  v.  Kdwards,  8  Ves. 
46;  Lupton  v.  White,  15  Ves.  432;  IMnkett 
V.  Wright,  2  Hare,  120;  Harford  v.  Lloyd, 
20  Beav.  310;  Frith  v.  Cartland,  2  H.  &  M. 
417. 

But  when  it  is  suggested  in  that  case 
(Pennell  v.  Detfell,  4  De  G.  M.  &  G.  366) 
by  Lord  Justice  Knight  Bruce,  and  as- 
sented to  and  elaborated  by  Lord  Justice 
Turner,  that  the  rule  in  Clayton's  Case, 

1  Mer.  572,  would  apply  to  funils  paid 
into  a  bank  by  a  trustee,  so  that  "'checks 
drawn  by  the  trustee  in  a  general  manner 
upon  the  bank  would  for  every  purpose  be 
ascribed  and  affect  the  account,"  accord- 
ing to  the  rule  in  Clayton's  Case,  namely, 
that  if  the  first  item  in  the  account  were 
for  trust  moneys  the  first  check  paid  out 
by  the  bank,  "drawn  by  the  trustee  in  a 
gener.ll  manner  upon  the  bank,"  though 
used  by  the  trustee  for  his  own  purposes, 
would  be  treated  as  a  payment  of  trust 
money,  we  think  that  an  entirely  unsound 
principle  is  stated  ;  that  it  is  contrary  to 
the  whole  general  reasoning  of  both  Lord 
Justice  Knight  Bruce  and  Lord  Justice 
Turner  themselves,  and  is  really  incon- 
sistent, as  shown  in  Frith  v.  Cartland, 

2  H.  &  M.  417,  420  et  seq,  with  the  ac- 
tual decision  in  Pennell  v,  Deffell,  4  De  G. 
M.  &  G.  366,  itself. 

We  think  the  law  is  correctly  stated  in 
Frith  I'.  Cartland,  in  referring  to  Pennell 
i>.  Deffell,  thus:  "The  guiding  principle 
is  that  a  trustee  cannot  assert  a  title  of 


his  own  to  trust  property.  If  he  destroys 
a  trust  fund  by  dissipating  it  altogether, 
there  remains  nothing  to  be  the  subjict  of 
a  trust ;  but  so  long  as  the  trust  iiropi  ity 
can  be  traced  and  followed  into  other  prop- 
erty into  which  it  has  been  converted,  that 
remains  subject  to  the  trust.  A  mvmi 
principle  is  that  if  a  man  viixes  trust  fundi 
with  his  own  the  wlwle  will  be  trruial  as 
the  trust  pro/H'.rti/,  except  so  far  as  he  wvi 
be  able  to  distinguish  what  is  his  inn." 
And  to  show  how  completely  the  reason- 
ing and  holding  in  Pennell  i*.  Dell'ell  art; 
in  accord  with  this  correct  statement  of 
the  law,  and  against  the  obitrr  ilirin  in 
the  case,  of  the  application  of  the  rule  in 
Clayton's  Case  to  trustees  or  ])artie.s  in  a 
fiduciary  relation,  we  iiuote  further  I'rnin 
Frith  V.  Cartland,  2  11.  &  M.  at  p.  421 
ct  seq. :  "  Upon  these  two  principlis  t!ie 
case  of  Pennell  v.  Detfell  was  deciiie'l,  ami 
it  illustrates  very  strongly  the  maiiiier  in 
which  the  court  will  follow  trust  iirop- 
erty.  The  solo  question  in  every  ease  is 
whether  the  property  can  or  canimt  be 
identified.  In  the  i)resent  case  tlie  mi- 
dence  amounts  to  this :  The  baiikniiit 
took  £2,500  of  bills  belonging  to  the 
plaintiffs,  and  discounted  them  tnijether 
with  bills  of  his  own.  He  received  a 
check  for  £3,500,  besides  a  further  sum 
which  was  paid  to  his  credit  at  the  Hank 
of  England.  These  dealings,  and  the  con- 
version of  the  proceeds  into  creiits  on 
foreign  banks,  raise  the  .same  kind  of  case 
as  was  suggested  by  the  Lord  .lustioe 
Knight  Bruce  in  his  judgment  in  renncll 
V.  Deffell.  If  a  man  has  £1,000  of  his 
own  in  a  box  on  one  side,  and  £l,iiOOof 
trust  property  in  the  same  box  on  the 
other  side,  and  then  takes  out  tfiOO  ami 
applies  it  for  his  own  purposes,  the  court 
will  not  allow  him  to  say  that  the  nionoy 
was  taken  from  the  trust  fund.  Tin-  trmt 
must  have  its  £1,000  so  long  as  a  snilii-ii'nt 
sum  remains  in  the  box.  So  here  Ivlwanls 
could  be  not  allowed  to  say  that  the  t"2Sl 
deposited  in  the  Bank  of  England  was  liis 
own,  and  that  the  trust  iiortion  of  the 
fund  was  that  which  he  took  aliroa.l  with 
him,  anil  from  which  he  drew  as  le  re- 
quired for  his  own  jmrposes.  There  is, 
therefore,  no  difficulty  in  treating  tliat 
sum  at  the  bank  as  belonging  to  the  trust, 
together  with  what  remains  of  the  sum 
which  he  took  abroad.  It  appears  that 
Edwards  (the  fiduciary),  after  passing  the 
property  through  various  transformations, 
had  at  last  a  sum  nearly  sullicient,  to- 
gether with  the  money  at  the  hmk,  to 
cover  the  amount  of  the  plaintiirs  trust 
fund.     During  the  interval  he  had  sp«Qt 


I'ART  VI.] 


FIDUCIARY  RELATIONS. 


449 


which  naturally  grows  out  of  that  confidence  is  possessed  by  the 
otlier,  and  this  confidence  is  abused,  or  the  inliucncc  is  exerted  to 


>oiiietliiii};  out  of  till!  iiiixi'(l  fund,  wliich 
t'.\|K'iiilitiiii!  must  lie  iitti'iliutcii  to  tliiit 
iiuitiiiii  wliirli  1  may  cull  his  owii.  Uu- 
li'ss,  tlit'i't'luiv,  till!  biiiikiuiitcy  iniikus  ii 
iliiriiciR'c,  tlii'iv  can  be  no  gi'ouiul  for  de- 
nying' the  iilaintiir.s  title  to  tliu  fund  rc- 
e()Vi,'ri'<l,  or  for  dividiiifj  it  />ro  rata.  The 
court  attriliiitcs  the  owiicrship  of  the  trust 
|ii(i]ii'ity  to  tilt'  cculni  que  trust  so  long  as 
ii  call  lie  traced.  Here  there  is  no  ditli- 
Liilty  ill  identilyiiif^  it.  Tliroii<;liout  the 
whole  series  of  transfonniitions  the  bank- 
rupt ,ilH;iys  held  a  fund  available  to  meet 
the  'l.iiia   of  the  trust.     In   i'ennell   v. 

1  111!' 11  part  of  the  trust  fund  had  boon 
|iai.l  into  a  bank,  hut  it  ions  not  marked, 
luid  WHS  irljml.  oat  hij  subsequent  drawings, 
aii'l  till'  whole  ultimate  balance  could  not 
ill'  lixtd  with  the  trust  any  more  than  a 
iii'oiiil  t'l,iitiO  of  stock  which  a  trustee 
mi^'iit  happen  to  acciuiro  after  selling 
jtl.iiiin  of  trust  stock  and  spending  the 
|iioct'('(ls.  So  loiifj,  however,  as  the  fund 
em  be  Irfieril  the  trustee  cannot  assert  his 

(IICK  /('//('  /ii  it. " 

And  altiinugli,  as  above  intimated,  the 
"ultimate  bulance"  in  I'ennell  v.  PefTell, 
4  1)0(1,  M.  &  (i.  372,  was  tixcd  with  the 
trust,  and  although  the  whole  general 
rfawiiiiiig  of  both  Knight  Bruce  and 
TiiniiM',  Lord  Justices,  was  exactly  in  ae- 
curiliini  f  with  the  actual  general  holding 
ill  that  ease,  and  in   Frith  v.  Cartlanil, 

2  11.  i  M.  418,  yet  while  deciding,  under 
tlie  facts  of  the  case,  that  "  when  a  trus- 
tee pays  trust  moneys  into  a  bank  to  his 
croilit  to  a  siinjile  account  with  himself, 
not  ilistiiinuished  in  any  other  manner, 
the  debt  thus  constituted  from  the  bank 
toliini  is  one  which  belongs  as  specifically 
totiie  trust  as  the  money  would  have  done 
had  it  s))i'cirn  ally  been  placed  by  the  trus- 
tee in  a  particular  repository  and  so  re- 
niaiiied  ;  and  the  case  would  not  be  varied 
by  the  ciicunistance  of  the  bank  holding 
also  for  the  trustee,  or  owing  also  to  him 
money  in  every  sense  his  own  ;"  they  ex- 
pressed the  o|iiiiion  that  "checks  drawn 
hy  the  trustee  in  a  general  manner  upon 
the  hank  would  for  every  purpose  be  as- 
fribed  ami  affect  the  account  in  the  mode 
explained  and  laid  down  in  Clayton's  Case, 
1  .Men  fiZ'J,"  they  involved  themselves  in 
a  very  paljiable  contmdiction,  and  greatly 
Ifsgened  the  value  of  two  otherwise  clear 
and  able  judgments. 

The  whole  general  reasoning  of  both 
the  jndges  in  Pcnnell  j;.  Deffell  is  so  ut- 
terly opposed  to  the  idea  of  the  rule  in 
Clay*nn's  Case  being  applicable  to  the  case 
of  a  trustee  or  fiduciary,  that  it  seemed  al- 
most impossible  to  believe  that  they  meant 
TOL.  I. 


what  they  say  ;  and  it  was  not  until  wo 
fouiiil  our  .jiidgnieiil  on  the  puiut  Inrtified 
by  the  reference  to  the  case  in  Frith  v. 
Cartland,  2  II.  &  M.  418,  and  the  wrong 
jiriiniple  stated  by  them  in  jiidgiiiruts 
otherwise  well-reasoned,  condeiiined  in  In 
re  liallelt's  Case,  ]:i  Ch.  iJiv.  at  it.  72it, 
that  we  could  satisfy  ourselves  timt  wo 
liad  not  in  aii  inexjilicable  niauner  iiii.Hnp- 
lueheiided  the  meaning  of  their  statements 
on  the  pciint,  which  seemed  so  utterly  un- 
sound, and  so  contrary  to  their  aitiial  gen- 
eral holding  and  to  the  general  tenor  of 
their  judgments. 

The  whole  ipiestion  is  most  elaborately 
examined  in  In  re  Hallett's  Kstate,  \,i  Ch. 
Div.  6St6-75:{,  where  it  was  held  thai  if  » 
jiei-sciD  who  holds  money  as  a  trustee  or  in 
a  (iduciary  character  pays  it  to  his  aiMount 
at  his  bankers,  and  mixes  it  with  his  own 
money,  and  afterwards  draws  out  sums  by 
checks  in  the  ordinary  manner,  the  rule 
ill  Clayton's  Case,  1  Mer.  57'-',  attributing 
the  first  drawings  out  to  the  first  pay- 
ments in,  does  not  apply  ;  and  that  the 
drawer  must  be  taken  to  have  drawn  out 
his  own  money  in  preference  to  the  trust 
money.  Jes.sel,  ^\.  1!.,  in  so  deciding, 
thus  deals  with  I'ennell  v.  Deffell,  4  De  G. 
JI.  &  (J.  372,  after  referring  to  the  ajipli- 
cation  in  that  ca.se  of  the  rule  in  Clayton's 
Case  to  a  trilling  jiortion  of  the  trust  es- 
tate :  "  But  that  was  not  the  wlicde  case 
of  Pennell  v.  Deffell.  The  m::in  part  of 
Pennell  v.  Deffell  was  giving  'fleet  to  the 
right  of  ecsfilis  que  trust  in  the  case  of 
blended  moneys,  and  upon  the  very  jiriu- 
ciple  which  I  have  explained,  and  which, 
if  I  may  say  .so,  was  so  clearly  explained 
by  Mr.  Justice  Fry  in  his  judgment.  If, 
therefore,  we  are  to  ascertain  the  priucijile 
on  which  I'ennell  v.  Di'lFell  is  dei.'ided  we 
must  look  at  the  whole  of  the  Judgment, 
and  not  at  one  part  of  it  only.  That  lieing 
so,  I  have  come  to  this  conelusioii,  that 
the  priffciple  is  rightly  laid  down,  and  it 
is  rightly  apfdied  throughout  the  .judg- 
ment except  us  to  this  por/imi,  and  that  as 
to  this  portion  there  has  been  «  mis/uke, 
not  in  the  |iriiiciple,  but  in  the  ajiplicatioii 
of  the  |iiini'iple.  Therefoie,  if  I  am  to  be 
guided  liy  the  principle  as  hiiil  down,  I 
think  the  |irinciple  must  ])revail  without 
regard  to  a  mere  slip  in  its  application." 
Tlie  "principle"  here  referred  to  is  that 
if  money  held  by  a  person  in  a  fiduciary 
character  has  been  ]iaii.l  by  him  to  his  ac- 
count at  the  banker's  the  jier.son  for  whom 
ho  held  the  money  can  follow  it,  and  I  ^ 
a  charge  on  the  bilance  in  the  banker's 
hands.  See  also  the  opinion  of  Fry,  J„ 
as  above  approved  of  by  Jessel,  M.  B.,  in 

29 


^'^ 


i     M 


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"1 

I- 

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:  ! 

I  i*i 


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i : 


li- 


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■dp    * 


450 


COMMENTABIES  ON   SALES. 


[book  II. 


obtain  an  advantage  at  the  expense  of  the  confiding  party,  the 
person  so  availing  hiiusulf  of  his  position  will  not  bo  punnittud  to 


nt  p.  778, 


Ex  parU  DiiIp,  11  Cli.  Div. 
where  he  states  tliu  j;tMini'ul  logit 
of  I'l'iiiifU  V.  DcU'ell  to  Ih)  II  (iL'cisioii  tlmt 
as  bt'twoen  cestui  qiu:  trimt  and  tnistiiu  tho 
mixing  of  till)  I'liiul  U  iiiiiiiati-iiiil  "so  long 
as  tlieio  is  a  fiintl  on  wliicli  tliu  cmltii  que 
friut  can  lay  his  hamls,"  ami  tlmt,  with 
reforenco  to  this,  it  makes  no  dilffiunco 
that  instead  of  trnsteu  and  cestui  que  trust 
it  is  a  case  of  lidiiciary  ielationslii|) ;  af- 
fecting, tiiL'ieforc,  all  such  cases  ot  sales 
where  tho  <|iiestioii  would  arise  in  connec- 
tion with  funds  in  the  hands  of  agents  or 
factors  or  other  lidueiaries.  See  City  Dis- 
count Co.  V.  MisLean,  L.  K.  9  C.  P.  692, 
701,  where  tho  rule  in  Clayton's  Case, 
1  Aler.  530,  was  held  inappli(;ahle,  and 
was  nut  acted  on.  Si^e  also  Henniker  u. 
Wigg,  4  Q.  n.  4!)2;  Ex  parte  Cooke.  4  Ch. 
Div.  123  ;  Mi.ldleton  v.  I'ollock,  lb.  4i> ; 
Birt«.  Burt,  11  Ch.  Uiv.  773,  n.;  I'inkett 
V.  Wright,  2  Hare,  120;  E.c  parte  Kelly 
&Co.,  11  Ch.  Div.  303.  And  see  conn- 
gel's  opinion  of  the  contradictory  holding 
in  Pennell  v.  Detfell,  4  De  Cr.  M.  &  (S. 
372,  384  ;  la  re  Hallett's  Estate,  13  Ch. 
Div.  725,  arguendo. 

In  this  country  it  has  boon  held,  in 
accordance  with  the  well-decided  English 
decisions  cited  in  this  note,  that  if  a  ]iarty 
having  charge  of  th(!  property  of  others, 
80  confounds  it  with  Lis  own,  that  tho 
line  of  distinction  cannot  bo  traced,  all 
the  inconvenience  of  the  confusion  is 
thrown  upon  the  party  who  produces  it, 
and  it  is  for  him  to  distinguish  his  own 
property  or  lose  it.  If  it  is  a  case  of  dam- 
ages, damages  are  given  to  tho  utmost 
value  that  tho  article  will  bear.  Hart  v. 
Ten  Kyck,  2  Johns.  Ch.  62,  108  ;  Armory 
V.  Dalamire,  1  Str.  ."iOS  ;  Lupton  v. 
White,  15  Ves.  432  ;  The  Attorney-Gene- 
ral V.  Fullerton,  2  Ves.  &  B.  264.  If  the 
goods  can  be  easily  distinguished,  and 
separated,  then  »io  change  of  property 
takes  place,  and  each  party  may  lay  claim 
to  his  own.  If  the  goods  are  of  tlie  same  ua- 
tare  and  value,  although  not  capable  of  an 
actual  separation  by  identifying  eai-h  par- 
ticular, yet,  if  a  division  can  be  made  of 
equal  value  (as  in  the  c.;?©  of  a  mixture  of 
corn,  or  cotfee,  or  tea,  or  wine,  of  the 
same  kind  and  quality),  there  each  may 
claim  his/aliquot  i)art.  But  if  the  mix- 
ture is  undistinguishable,  and  a  new  in- 
gredient is  formed,  not  capable  of  a  just 
appreciation  and  division,  according  to 
the  original  rights  of  each,  the  party  who 
causes  the  wrongful  mixture  must  bear  tho 
whole  loss.    See  Bond  v.  Ward, 7  Mass.  123. 

And  it  has  been  frequently  hold  that 
the  confusion  or  mixture  of  the  trust  es- 


tate with  the  trustee's  own  property  pre- 
Hunts  no  obstacle  in  the  way  of  sepaiatui); 
the  former  from  the  mass,  and  ilealinj^ 
with  it  as  trust  estate.  .Vnd  into  whiUu- 
ever  character  of  goods,  securities,  or  |ii'o|i- 
crty  a  trust  fund  may  be  converted,  it  is 
still  impressed  with  the  trust.  Monisuu 
V.  Kinstrae,  55  Miss.  76  ;  Thonip.'iuii  r, 
Perkins,  3  Mason,  232  ;  Overseers  of  Poor 
V.  liank  of  Virginia,  2  (iratt.  5t4  ;  Na- 
tional Bank  v.  King,  57  Pa.  202  ;  t'uuk 
V.  Tullis,  18  Wall.  332  ;  Price  v.  Ralston, 
2  Dall.  60  ;  fJoodenow  v.  Tyler,  7  .Mass. 
36  ;  Stair  v.  Tho  York  National  Bank,  55 
Pa.  364  ;  Frazier  v.  The  Erie  Bank,  8 
W.  &  S.  18.  In  National  Bank  v.  King,  :,1 
Pa.  208,  there  is  a  reference  to  Pennell  p. 
Detfell,  4  De  G.  M  &  «J.  383,  to  the  etitct 
that  it  is  to  be  n  nMcd  in  that  case  tiiat 
the  monitys  of  several  distinct  trusts  were 
carried  into  the  a(;count,  and  that  the 
trustee's  own  money  had  been  mixi'il  with 
them.  The  court  continued  :  "  Hut  ii 
is  insisted  there  was  no  ear-mark  to  tin: 
monev.  What  of  that,  if  tho  money  cm 
be  followed,  or  if  it  can  bo  traced  iiitoii 
aubstitute  ?  This  is  ol'ten  done  throiifjli 
the  aid  of  an  ear-mark.  But  this  is  only 
an  index  enabling  a  beneli"ial  owner  to 
follow  his  properly.  It  is  noevidena'of 
ownership.  An  "ar-iniu'k  is  not  inilis|iens- 
able  to  enable  a  i'.  vner  to  assert  his 
right  to  property,  or  lo  its  luoduet  or  sub- 
stituto.  Evidence  of  substantial  identity 
may  bo  .ttached  to  tho  thing  itself,  or  it 
may  be  extraneous." 

But  there  are  some  cases  in  this  cnnntiy 
which  follow  tho  old  exploded  Knijlish 
doctrine,  that  the  trust  i)roi)crty  caiiiiot 
be  followed  wh<'re  it  has  been  turneil  in- 
to money,  and  mixed  with  other  nioney, 
"because  money  has  no  ear-mark."  Per 
Lord  King,  in  Deg  v.  Deg,  2  P.  Wins, 
414.  There  is  a  caso  to  this  etfeot  in 
Pennsylvania,  —  Thompson's  ApjH'al,  '11 
Pa.  St.  16,  which  is  .lecidtnl  on  the 
authority  of  Story's  E(|uity,  §  li.'i!', 
which  cites  and  relies  on  the  ohl  ease  to 
which  wc  have  referred  in  this  note,  of 
Ryall  ».  Rolle,  1  Atk.  172.  Storv  also 
cites  a  later  ease,  that  of  I.eigli  v.  M.uau- 
lay,  1  Y.  &  C.  260,  for  the  iHwition,  Imt 
the  case  is  very  far  from  sustaiiiintt  it. 
Tho  defence  in  this  case  was  (p.  'I'i^'i) 
"that  tho  moneys  received  by  the  ilelVml- 
ants  on  aceonnt  of  Li'igh's  estate  hail  not 
been  invested  by  them  for  the  lieiiclit  of 
that  estate,  but  had  been  mixed  with  thiir 
own  moneys,  and  applied  to  their  uwn 
uses  ;  "  and  (p.  264)  "tho  defen  i.ints  ad- 
mitted that  tiiey  never  accounted  lor  any 
part  of  this  balance,  but  that  they  paid  it 


[book  II. 

ing  party,  the 
5  permitted  to 

own  property  pre- 
!  wiiy  ot  Mi'piiiiiiiujj 
imss,  and  ilciiliiig 
Ami  into  \vll,ll^u• 
suL'uritios,  or  inuii- 
1)0  coiivurti'il,  it  is 
u  trust.     Monisuii 

7()  ;    Tholll|i^oii    (. 

;  Ovti'si'tM's  ol  I'lwr 
i  limit.  ."iU  ;  N.i- 
57  I'll.  iO-i  ;  Cuulv 
;  I'ricu  V.  llalstDii, 
■  V.  Tyler,  7  .Miss. 
Natioiuil  Bank,  55 
Tlu'  Krii!  Biuii<,  8 
111  IJiink  V.  King,  57 
M'onci)  to  iVnnfli  i'. 
U.  o8:3,  to  the  ell'wt 
'd  in  that  caso  that 
(li.stint't  trusts  wire 
nut,  anil  tliat  the 
ail  Iwun  niixi'il  with 
nitiuMfil  :  "  Hut  ii 
no  car-nnirk  to  th« 
t,  if  the  nn)ni'y  ran 
:an  bo  traced  iiitoii 
ol'tLMi  dono  throiiKli 
k.  lint  this  is  only 
lM'noli"ial  owner  to 
It  is  no  evideiiceof 
•k  is  not  inilisiiens-  | 
vner  to  assert  his 
.  its  product  or  sub- 
substantial  identity 
lie  thing  itself,  or  it 

rases  in  this  cnnntrj' 
exploded    Kni^lish 
nst  property  cainiot 
"nis  been  turui'd  in- 
with  other  n|()iii'y, 
no  ear-mark."    P(f 
)e<;,   2  r.   ^V.ns. 
.«o   to   this  elfcct  in 
nipson's  Appeal,  i2 
is   decided    on    the 
,    K(,uity.    §    lir.?. 
■s  on  the  old  case  to 
red  in   this  imte,  of 
»    172.     Storv  also 
.  of  Lei^h  V.  Ma««- 
for  the  po^ituMi,  ml 
from  HUstainiiii;  it- 
case   was   (p.  -•>3) 
•eived  by  the  .lelewl- 
ifdi's  estate  had  not 
nrfor  the  heiierit  of 
(oen  niixtul  with  their 
pplied   to  their  own 
"the  defendants  ail- 
er  n<!C0unt.'d  for  any 
but  that  they  paid  it 


l'.\UT   VI.] 


FIDUCIARY  RELATIONS. 


451 


retain  the  ndvantagc,  although  the  tranHaction  could  not  have  oceii 
iiupeached  if  no  such  confidential  relation  had  existed. 

Tills  doctrine  was  applied  in  Tato  v.  Williamson,'  under  the  fol- 
lowing facts  :  T.,  a  young  man  aged  twenty-three,  entitled  to  a 
Kiuii'ty  of  un  estate,  the  entirety  of  which  brought  in  about  £4A0 
a  year,  being  pressjd  for  payment  of  his  college  debts,  amounting 
to  about  illOOU,  and  being  estranged  from  his  father,  wrote  to  his 
great-uuelc  for  advi.-o  and  assistance  as  to  payment  of  the  debts. 
Tiie  uncle  deputed  the  defendant,  his  nephew,  to  sec  T.  on  the 
sultjoct.  The  defendant  met  T.  by  apj.ointment,  and  at  this  inter- 
view T.  refused  to  allow  any  attempt  to  compromise  the  debts, 
and  said  he  would  sell  his  moiety  of  the  estate,  upon  which  the 
deft'iidant  offered  him  £7000  for  it,  payable  by  instalments.  T., 
no.\t  day,  accepted  the  offer.  Before  an  agreement  had  been 
.signed,  the  defendant  obtained  a  valuation  by  a  surveyor,  estimat- 
ing  till!  value  of  the  mines  under  the  entirety  at  X 20,000.  The 
sale  was  completed  without  this  valuation  having  ever  been  com- 
municated to  T.  T.'s  heir  filed  a  bill  to  impeach  the  sale.  It 
was  held  by  the  Court  of  Ap])cal,  aflirming  the  decree  of  Wood, 
V.  C,  that  the  defendant  had  stood  in  a  liduciary  relation  to 
T.,  which  made  it  his  duty  to  communicate  to  T.  all  material  in- 
formation which  he  acquired  affecting  the  value  of  the  jiroperty, 
and  that,  as  he  had  not  communicated  the  valuation  to  T.,  the 
traii.saction  must  be  set  aside.^ 


to  their  own  hankers  on  their  own  account, 
and  mixed  it  with  their  own  money." 
iiiit  the  court  held  that  the  money  must 
be  paid  into  court,  on  the  principle  that 
when  a  court  of  cipiity  traces  out  trust- 
money  in  the  hands  of  a  person  who  has 
not  priinii  facie  a  right  to  hold  it,  that 
money  must  be  brought  into  court.  There 
is  also  a  case  in  California,  which  is  de- 
liilcil  on  the  authority  of  the  Pennsylvania 
case;  Lathrop  d.  Bampton,  31  Cal.  17. 

See  a  very  strong  case,  Boglo  v.  Stew- 
art, Dom.  Proc.  1801,  cited  in  Leigh  v. 
Macaulay,  1  Y.  &  C.  265,  where  trust- 
money  |iaid  over  to  bankers,  ami  not 
plaml  in  a  separate  account,  and  paid  out 
by  them,  \v,as  ordennl  to  be  paid  over  to 
the  cfiiluin  que  trtuit  by  the  bankers  ;  they 
havinj;  received  the  money  under  circum- 
stances from  which  a  knowledge  by  them 
of  the  trust  was  implied.  But,  where 
Iwnkers  have  no  notice  displacing  their 
equity,  if  the  bankers  liave  any  account 
with  the  fiduciary  by  way  of  set-off,  that 
set-olf  would  equally  affect  the  money  paid 
in  to  liis  own  account,  though  being  the 
money  of  his  principal,  as  it  would  the 
agent's  own  money.  Massey  ».  Banner, 
1  Jac.  &  W.  248. 


»  L.  R.  2  Ch.  Ap.  55. 

2  The  principle  is  laid  down  in  Billagc 
V.  Southee,  9  llaro,  534,  upon  which  the 
court  acts  iu  euch  cases.  There  the  case 
was  tliat  a  medical  attendant  had  taken 
from  a  poor  jiatient  a  promissory  note  for 
an  amount  beyond  what  was  due  to  him, 
upon  the  most  extraordinary  scale  ojf 
charges,  and  this  at  a  lime  when  the  pa- 
tient's [losition  in  life  was  to,  be  changed. 
Sir  .lames  Turner,  in  delivering  judgment, 
said  :  "  I  am  of  o]iinion  a  court  of  c(iuity 
will  not  permit  this.  No  part  of  the 
jurisdiction  of  the  court  is  mure  useful 
than  that  which  it  exercises  in  watching 
and  controlling  transactions  between  per- 
sons staniling  in  a  relation  of  confnlence 
to  each  other  ;  and  in  my  opinion  this 
part  of  the  jurisdiction  of  the  court  cannot 
be  too  freely  applied,  eitlu'r  as  to  the  jier- 
sons  between  whom,  or  tlw  circumstances 
in  which  it  is  applied.  The  jurisdiction 
is  founded  on  the  principle  of  correcting 
abuses  of  confidence,  and  I  shall  have  no 
hesitation  in  saying  it  ouglit  to  be  ap- 
plied, whatever  may  be  the  nature  of  the 
confidence  reposed,  or  the  relation  of  the 
parties  between  whom  it  has  subsisted.  I 
take  the  principle  to  be  one  of  universal 


'1.i 


!»' 


'(• 


! 


f-f 


II 


>        H 


i^ 


I 


it 


■  t  [  ; 


452 


COMMENTARIES  ON   SALES. 


[book  II. 


Michoud  V.  Girod  ^  was  a  case  where  third  parties  bought  for 
executors  the  whole  estate  of  the  testator,  which  was  bid  in  iu  the 


application,  and  the  cases  in  which  the 
jurisdiction  has  been  exercisttd,  those  of 
trustees  and  cestui  que  trust,  guardian 
and  ward,  attorney  and  client,  surgeon 
and  patient,  to  bo  merely  instances  of  the 
application  of  the  principle.  In  this  case 
there  can  he  lo  doubt  that  a  relation  of 
confidence  subsisted,  and  tiiere  can  be 
equally  little  doubt  tiiat  advantage  has 
been  taken  of  tliat  contideace.  Why  was 
the  amount  of  the  <lebt  which  was  due 
from  the  poor  man  to  be  altered,  be- 
cause his  position  in  life  was  about  to 
be  ciianged?  And  why  was  the  altera- 
tion  to  be  made  without  any  account  be- 
ing rendered,  or  any  explanation  being 
ottered  ?  It  is  said  that  he  intended  to 
be  liWal,  and  that  this  court  would  not 
prevent  him  from  l>eing  so  ;  and  no  doubt 
it  would  not  if  such  were  his  intention  ; 
but  intention  imports  knowledge,  and  lib- 
erality imports  the  absence  of  influence ; 
and  I  see  no  evidence  in  this  case  either 
of  knowledge  or  of  the  absence  of  influ- 
ence ;  and  wiiere  a  gift  is  set  up  between 
parties  stamling  iu  a  confidential  rela- 
tion, the  imuJi  of  establishing  it  by  proof 
rests  upon  the  party  who  has  reieivod 
the  gift."  Uent  i'.  Bennett,  7  Sim.  539  ; 
4  My.  &  <.\  2(5!) ;  Popham  v.  Brooke,  5 
Russ.  8  ;  Gilwon  v.  Russell,  2  Y.  &  C. 
Cli.  104.  As  between  a  solicitor  and  his 
client  the  rule  is,  not  that  there  is  an 
aetual  incapacity  to  purchase  from  the 
client:  Montestjuieu  v.  Sandys,  18  Ves. 
302 ;  Cliaini)ion  v.  Kigl)y,  1  B.  &  Myl. 
639  ;  Kin-istand  v.  Barnewell.  4  Bro.  P.  C. 
154  ;  Cave  v.  Lord  Allen,  2  Dowl.  294; 
but,  th:ii,  inasmuch  as  the  parties  stand 
in  a  relation  which  gives,  or  may  give, 
the  solicitor  un  advantage  over  the  client, 
the  nnni  lies  on  the  solicitor  to  prove  that 
the  transuction  was  fair,  (til)son  ».  .leves, 
6  Ves.  '2tIH ;  >Iatch  v.  Hatch,  9  Ves.  2"!t2  ; 
Wood  V.  Donncs,  18  Ves.  120  :  Bellow  v. 
Russell.  1  B.ill  &  B.  104 ;  Welles  .-.  Mid- 
dleton,  1  (ox,  112;  8.  c.  cited  18  Ves. 
127  ;  Hunter  i-.  Atkins,  3  Myl.  &  K.  135, 
per  Kurd  Brougham  :  .Fones  r.  Thomas,  2 
Y.  k  C.  4!t8.  In  Gibson  v.  Jeyes,  «  Ves. 
278,  Lord  Kldon  says  that  an  attorney 
may  contract  with  his  client,  but  that  he 
bhouM  say,  "if  ho  was  to  deal  with  her 
for  this,  she  must  get  another  attorney  to 
advise  her  as  to  the  value  ;  or,  if  she 
would  not,  then  out  of  that  state  of  cir- 
cumstanc.s  this  clear  duty  results  from 
the  rules  of  this  court,  and  throws  upon 
him  the  who'.',  omis  of  the  case ;  that,  if 
he  will  mix  with  the  character  of  attorney 


that  of  vendor,  he  shall,  if  the  prctpricty 
of  the  contnict  comes  in  question,  muni- 
fest  that  he  has  given  her  all  that  reason. 
able  advice  against  himself,  that  he  wuiijii 
have  given  her  against  a  thinl  jterson.  It 
is  asked,  where  is  that  rule  to  Ix^  luund  ] 

1  answer,  in  that  great  rule  of  the  court, 
that  he  who  bargains  in  matter  uf  advant- 
age with  a  {>erson  placing  confidence  ii:  liim 
is  bound  to  show  that  a  reasonable  use  \\,a 
lieen  made  of  that  confidence  ;  a  rule  a|i- 
plying  to  trustees,  attorneys,  or  any  one 
else."  An  attorney  is  not  inciipalilc  of 
contracting  with  his  client.  He  may  fur 
a  horse,  an  estate,  etc.  A  trustt-c  may 
also  deal  with  his  cc^ui  que  tmul  ,■  Imt 
the  relation  must  be  either  ilissolvcd,  or 
the  parties  must  be  put  so  nundi  at  arm's 
length,  that  they  agree  to  take  the  cinir- 
acter  of  purchaser  and  vendor ;  ami  you 
must  examine  whether  all  the  duties  of 
those  characters  have  been  jicrf'ornieil. 
Gibson  r.  Jeyes,  6  Ves.  277.  Tiiis  was 
not  denied  in  Fox  v.  Macreth,  2  lire.  Ch. 
400,  a  leading  case  on  tho  (inestioi'..  See 
Rossiter  v.  WaLsh,  4  Dr.  &  VV.  4*^^,  where 
a  lease  of  premises  from  an  agent  to  liis 
sub-agent  was  set  aside.  In  MoIodcv  i\ 
Kernan.  2  Dr.  k  W.  31,  it  was  held  that  an 
agent  may  take  a  lease  from  his  ]irincipul, 
but  he  must  always  b<!  prepared  to  pr  ivo 
that  full  information  has  been  imparled  to 
his  principal,  and  that  the  contract  has 
been  entered  into  with  perfect  gioci  faith. 
And  a  party  who  takes  an  assi^^nmcnt  of 
a  lease  from  the  agent  of  the  lessor,  with 
notice  of  tho  assignor's  character  as  aijent, 
hiis  the  same  liability  of  sustainin;^'  tho 
lease  cast  uimn  him  thut  the  agent  has, 
and  if  the  lease  cannot  be  npliejil  by  the 
agent,  neither  can  it  be  supported  by  the 
purchaser  from  the  agent.  Ihi'l.  Si'e 
the  celebrated  case  of  Lord  S.lsev  r, 
Khoades,  2  Sim.  k  St.  41  ;  1  Uli^'ii,  .N.  K. 
1,  where  such  a  traiisairtion  was  siistaincl, 
the  whole  transaction  having  been  ii>n- 
sidertMl  by  the  court  Indow  as  hiivint;  Invn 
done  in  good  faith  and  with  full  knoui- 
edge  by  the  principnl,  aim  the  jiiU'ineiit 
having  Iwen  sustained  in  the  lluiisi'  o' 
Lords  on  tho  ground  of  delay  an  I  aii|ui- 
eseence.     See  further,  Murpliv  v.  D'Slea, 

2  .1.  &  Lat.  422  ;  Turner  v.  Unrvev,  .lac. 
169  ;  Reynell  v.  Sprye,  1  De  (;.  M  k  i!. 
6ff0;  Ilugenin  v.  Baselev,  14  Ves.  273, 
300  ;  Harrison  r.  Guest,  6  De  (!.  M.  &  '!■ 
424 ;  8  H.  L.  Cas.  481  :  Chaniliers  r. 
Betty,  Beat.  488  ;  Farnain  v.  Brooks  9 
Pick.  212 ;  Williams  v.  Powell,  1  In-1. 
Eq.   400 ;  Rose  v.   Mynott,   7  Yerg.  30 ; 


1  4  Kow.  603. 


PART  VI.J 


FILUCIABY  BELATIONS. 


4o3 


name  of  the  third  parties,  and  by  them  conveyed  to  the  executors. 
Proceedings  having  been  taken  to  set  aside  the  purchase  of  the 
executors,  the  excsutors  denied  any  fraud  in  fact  or  in  intention 
on  their  part,  and  declared  that  the  sales  were  judicially  ordered 
and  conducted  ;  that  the  purchases  were  kightfuily  made,  for  a  fair 
price,  at  public  auction,  and  that  the  plaintiifs  were  barred  by  long 
silence,  laches,  acquiescence,  and  lapse  of  time  ;  and  that  two  of 
the  complainants  had  given  the  executors  receipts  and  acquit- 
tances which  wciC  valid  and  obligatory.  The  Circui*^  Court  for 
Eastern  Louisiana  set  aside  the  purchase,  and  the  United  States 
Sii|»remo  Couiv  affirmed  that  decision,  laying  down  and  adopting, 
from  Davouc  v.  Fanning,*  the  following  doctrine,  which  a7Cords 
with  the  mass  of  the  Eiiglish  and  Americu!*  decisions  on  the  sul)- 
jcct :  "  If  a  trustee  or  person  acting  for  others  sells  the  trust  es- 
tate, and  becomes  himself  interested  in  the  purchase,  Uic  cestuis 
que  trust  are  entitled,  as  of  course,  to  have  the  purchase  set  aside, 
and  the  property  re-exposed  to  sale,  under  the  direction  of  the 
court.  And  it  makes  no  difference  in  the  application  of  the  rule, 
tliat  a  sale  was  at  public  auction,  boiui  fide,  and  for  a  fair  price, 
and  that  the  executor  did  not  purchase  for  hin- .  ^,  but  that  a 
third  porson,  by  previous  arrangement  with  the  executor,  became 
tlie  purchaser,  to  hold  in  trust  for  the  separate  use  and  benefit  of 
the  wife  of  the  executor,  who  was  one  of  the  cestuis  que  trust,  and 
who  had  an  interest  in  the  land  under  the  will  of  the  testator. 
The  inquiry,  in  such  a  case,  is  not  whether  there  was  or  was  not 
fraud  in  fact."  ^    The  case  was  also  examined  with  reference  to  the 


Bemon  v.  McLane,  1  HofT.  Ch.  421  ; 
Wlioiliin  V.  Wbcelan,  3  t'ow.  537 ;  Stiirr 
V.  Vaiidcrlieyden,  9  Johns.  253  ;  Mills  v. 
Erviii,  1  McCord,  Ch.  524  ;  CoiHshiiid  v. 
Mcri'.  Ins.  Co.,  6  I'ick.  196  ;  KimhI  v. 
Wiiriier,  5  Puigi!,  650 ;  Bcal  v.  Mt^Kior- 
naii,  0  Mill.  Lii.  407 ;  Bartliolonicw  t'. 
I.i'iiili,  7  Watts,  472;  Provost  v.  (Jratz,  1 
Pit.  ('.  C.  364;  Davoim  v.  Fanning,  2 
.Inhiis.  ("h.  351;  Green  v.  Winter,  1  Johns. 
Cli.  27  ;  Chiircit  v.  Mar.  Ins.  Co.,  1  Mas. 
341  ;  itarkfr  V.  Marine  Ins.  Co.,  2  Mas. 
3«!i;  r.iikistf.  Alexander,  1  .lohin.  Ch. 
3!U ;  ItutiiT  V.  Haskell,  4  Dess.  651  ; 
Mosrirv  V.  Hack,  3  l^unf.  232. 

''i.ioims.  Ch.  252. 

"  The  general  nilo  sta'ids  npon  our  great 
mond  ohligatiou  to  rer'nin  frou)  placing 
ourselves  in  relations  which  ordinarily  ex- 
cite n  conflict  between  self-interest  and 
iiitc^'rity.  It  restrains  all  agents,  (inblic 
anil  jirivatc  ;  but  the  value  of  the  pro- 
liibitidii  is  most  felt,  and  its  application 
is  nunc  frefjnent,  in  thy  private  relations 
in  which  the  vendor  and  purchaser  may 
itand  towards  each  other.    The  disability 


to  purchase  is  a  <■<>.  iipijuenoo  of  that  rela- 
tion between  tln'i:,  which  imposes  on  the 
oiie  a  duty  to  protect  the  interest  of  the 
other,  from  the  faithful  dischuif^e  of  which 
duty  his  own  personal  interest  may  with- 
draw him.  In  this  contlii  t  of  inten-st,  the 
law  wisely  interposes.  It  acts  not  on  th« 
possibility  that,  in  some  ca.ses,  the  8«'nso 
of  that  duty  may  prevail  over  the  motives 
of  self-interest,  but  it  jirovides  against  the 
proliability  in  many  cases,  and  tlie  danger 
in  all  ca.se»,  that  the  dictates  of  self-iuter- 
est  will  exevcis*!  a  prc<i()miiuint  inlluence, 
and  supersede  that  of  duty.  It  tlierefo'.e 
prohibits  a  party  from  purchasing  on  iiis 
o>vn  account  that  which  his  duty  or  trust 
requires  him  to  sell  in  account  ot  another, 
and  from  purclusing  on  iccount  of  another 
that  which  he  stUs  on  his  own  account. 
In  eiliv;!,  he  IS  not  allowed  t«  unite  the 
two  op|iosite  ch'X'.'actein  of  buyer  and  8«dler, 
Wause  his  inten^sts,  when  he  is  the  seller 
or  buyer  on  his  o»  n  account,  are  directly 
conflicting  with  those  of  the  la^rson  on 
whose  account  he  buyg  n  sells.  Michoud 
V.  Girud,  4  How.  at  j'.  r>;>6.     No  rule  u 


^  Hi 


mm 


454 


COMMENTABIES  ON  SALES. 


[book  II. 


questions  of  laches  and  acquittance,  and  these,  under  the  rules  re- 
lating to  purchases  by  parties  occupying  a  fiduciary  position,  did 
not  prevail.^ 


better  settled  tliaii  that  a  trustee  cannot 
beuoine  a  puruhaner  of  the  trust  estate. 
He  cannot  m  at  once  vendor  and  vendee. 
He  cannot  reprusL-nt  in  liinisulf  two  o|ti>o- 
site  and  conlliuttng  interests.  As  vendor 
he  mu.st  always  dosire  to  sell  as  high,  and 
as  purchaser  to  buy  as  low,  as  possible  ; 
and  the  law  has  wist^ly  i>rohil>ited  any 
person  from  assuming  such  dangerous 
and  incoin|)ati))le  characters.  Wormley  v. 
Wormiey,  8  Wheat.  421,  441.  Davoue  v. 
Fanning,  3  Johns.  Ch.  252,  wliere  Chan- 
cellor Kent  delivers  an  elaborate  judgment, 
ia  the  leading  case  on  the  question  in  this 
country.  The  principle  is  there  laid  down 
as  quoted  by  the  court  in  Michoud  v. 
Girod,  supra,  and  it  is  then  said,  —  "  The 
earliest  case  I  have  met  with,  containing 
any  full  recognition  of  the  principle  that 
a  trustee  cannot  act  for  his  own  benetit  on 
a  subject  connected  with  the  trust,  is  that 
of  Holt  V.  Holt,  in  the  22  Car.  2,  1  Ch. 
Cas.  190,  where  it  was  held  by  the  Lord 
Keeper  iiridginau,  assisted  by  the  judges, 
that  if  an  executor  in  trust  renewed  a 
lease,  it  should  be  for  the  l>enelit  of  the 
cestui  que  tru.it.  The  next  case  that  occurs 
was  that  of  Kccch  v.  Saiidford,  before  Lonl 
Chancellor  King,  in  1720.  3  Kq.  Gas.  Ab. 
751.  A  lease  of  the  prolits  of  the  market 
was  devised  to  a  trustee,  in  trust  for  an 
infant  ;  before  the  expiration  of  the  term 
the  trustee  applied  to  tiie  lessor  for'a  re- 
newal for  the  infant's  benetit,  which  he 
refused,  because  he  could  not  distrain,  but 
must  rest  singly  on  covenant,  which  the 
infant  could  not  make.  The  trustee  then 
took  a  lease  to  himself,  and  the  chancellor 
decreed  that  the  leiise  should  be  assigned 
to  the  infant,  and  that  the  trustee  should 
be  indemnihed  trom  the  covenants  in  the 
lease,  and  the  trustee  account  for  the  prof- 
its since  the  renewal.  Ho  said  he  must 
consider  it  a  trust  for  the  infant,  '  for  if  the 
trustee,  on  refusal  to  renew,  might  have  a 
lease  to  himself,  few  trust  estates  would 
be  renewed  to  ccstni  que  trusts ;  and  though 
it  might  seem  hard  that  the  trust<^o  was 
the  only  person  of  all  mankind  who  might 
not  have  the  lease,  yet  it  was  very  proper 
that  the  rule  shruild  be  strictly  pursued, 
and  not  in  the  least  relaxed,  for  it  was  very 
obvious  what  would  bo  the  consequence  of 
letting  trustees  have  the  lease  on  refusal 
to  renew  to  cestui  qtte  trusts.'  If  we  go 
through  all  the  cases,  I  doubt  whether  we 
ahall  lind  the  rule  and  the  policy  of  it  laid 
down  with  more  clearness,  strictness,  and 

food  sense."  8ee  further,  Harrod  o.  Norris's 
leirs,  11  Martin,  298  ;  lionhottom's  Ex'r 
*.   Babcock,  9  La.  48;  Scott's  Ex'rs  v. 


Gorton,  14  La.  114,  122;  McCluskey  v. 
Webb,  4  Rob.  201  ;  I'revost  v.  tJiau,  1 
Pet.  C.  C.  3t)8  ;  Wormley  v.  Wormley,  3 
Wheat.  421 ;  Case  v.  Abeel,  1  I'aigc,  4U7 ; 
Rogers  v.  Rogers,  1  Hopk.  525  ;  Fux  v. 
Mackrath,  2  Bro.  Ch.  400  ;  Hall  v.  Xoyes, 

3  Bro.  Ch.  483  ;  Kellick  v.  Flexny,  4  Bro. 
Ch.  161  ;  Whitcote  v.  i  awrence,  a  V.s, 
740  ;  Campbell  v.  Walker,  5  Ves.  iiji.  As 
to  purchases  by  agents,  see  York  ISiiiM- 
ings  Co.  V,  Mackenzie,  8  Bro.  P.  C.  42 ; 
Lowther  v.  Lowther,  13  Ves.  95  ;  Watt  v. 
Grove,  2  Sch.  &  Lef.  492  ;  Whitcoiiil)  v. 
Minchin,  5  Madd.  91  ;  Woodhuii.*;  «. 
Meredith,  1  Jac.  k  W.  204.  And  s.'e  Ex 
parte  Hughes,  6  Ves.  617  ;  Coles  v.  Treoo- 
thick,  9  Ves.  234  ;  Oliver  v.  Cant,  8  I'lice, 
127  ;  Expirte  Reynolds,  5  Ves.  7o7  ;  Ex 
parte  James,  8  Ves.  337  ;  Ex  pni-l':  Ben- 
nett, 10  Ves.  381  ;  Ejc  parte  Mi)i«iiu,  12 
Ves.  6  ;  Ex  parte  Spong,  1  Koso,  13:i,  as  to 
purchase  by  auctioneers,  commissioneis,  etc 

'  As  long  as  the  dejiondonce  uf  the 
cestui  que  trust  upon  the  trustee,  and  the 
fiduciary  relations  continue,  an  allfi;ei{ 
ratification  will  always  be  scrutinii^eil  with 
the  utmost  jealousy  ;  and  a  party  possess- 
ing only  imperfect  information  ciiniiot  he 
held  guilty  of  laches.     Butler  v.  Haskell, 

4  Dess.  651-717  (where  a  full  examina- 
tion of  the  cases  will  be  found)  ;  Murray 
V.  Palmer,  2  Sch.  k  L.  486  ;  I'uruell  r. 
McNamara,  14  Ves.  107,  120;  Colo  v.  Gih- 
bons,  3  P.  Wins.  293  ;  Brooke  v.  (iailv,  2 
Atk.  34;  Cole  v.  Gibson,  1  Ves.  .S.n.  Mr, 
Taylor  v.  Koekfort,  2  Ves.  Sen.  281 ;  li')die 
V.  O'Brien,  1  Ball  &  B.  230;  Morse  p 
Royall,  12  Ves.  364  ;  Wood  v.  Dowries,  IS 
Ves.  120;  Ilyder  v.  Bickerton,  3  Swan.  81 ; 
Bowes  V.  London  Water  Works,  3  Mailil. 
375.  As  to  acquiescence,  see  Walker  v.  Sy- 
monds,  3  Swan.  61  ;  Broadhurstw.  I?al«iiv, 
1  Y.  &  C.  Ch.  16  ;  Clifton  v.  Coiklnuii,  3 
Myl.  &  K.  76  ;  Clark  v.  Perrier,  2  I'leem. 
48  ;  Phillipson  v.  Gatty,  7  Hare,  r.Ki  ;  2 
H.  &  Tw.  459  ;  Ex  parte  Smith.  2  M.  P. 
k  l)e  G.  113  ;  Munch  i-.  Cockerell,  ;>  Mvl. 
&  C.  179  ;  Byass  r.  Gates,  2  W.  11.  4.h7  ; 
Hawkins  v-  (iardner,  2  Sm.  k  (i.  441: 
Brewer  v.  Swirles,  18  Jur.  10tii»;  Har- 
rows V.  Walls,  5  De  G.  M.  &  <1.  2:"; 
Bate  V.  Hooper,  5  De  G.  M.  k  C  ;!•'!'<; 
Locklmrt  v.  Hcilly,  25  L.  J.  Ch.  iVM  ;  Fat- 
rar  v.  Barradough,  2  Sm,  &  G.  •.':!1.  A 
cstui  que  trust  is  not  bound  liy  ai'i|uies- 
cnce,  unless  fully  informed  of  his  rights, 
and  of  all  the  material  facts  and  cireiun- 
stances  of  the  case.  And  altlioiifili  the 
ontu  lies  u|K>n  a  party  relying  upon  iH'T''- 
escence  to  prove  the  facts  uimn  whii'li  the 
consent  of  the  cettui  que  trust  is  to  be  in- 


PART  VI.] 


FIDUCIARY  RELATIONS. 


455 


Where  the  plaintiff,  a  single  woman,  was  informed  by  her  bro- 
ther's agent,  that  on  her  brother's  death  she  liad  succeeded  to  a 
small  estate,  of  which  she  knew  uotliing,  and,  on  the  agent's  rep- 
resentations of  its  value,  which  were  inaccurate,  and  without  legal 
advice,  she  conveyed  the  estate  for  an  inadequate  sum  to  the 
agent's  daughter,  the  court,  while  holding  that  there  was  no  such 
relation  between  the  parties  as  to  incapacitate  the  agent  from  pur- 
chasing bund  fide,  set  the  deed  aside  on  the  ground  that  the  agent's 
statement  was  not  a  mere  purchaser's  assessment,  but  a  deliberate 
false  statement  made  to  the  plaintiff  by  a  person  having  full 
knowledge ;  which  statement  was  asked  by  her  for  her  guidance 
in  the  transaction,  and  was  acted  on  by  her  in  reliance  on  its  good 
faith  and  accuracy.^ 

A  sale  of  bonds  was  made  in  1867,  at  public  auction,  by  the  at- 
torney of  the  plaintiff,  and  bought  by  the  attorney  at  their  full 
value  at  the  time.  The  plaintiff  took  no  steps  to  set  aside  the 
purchase  at  the  time,  which  was  voidable  at  his  election  ;  but,  af- 
ter having  adopted  and  approved  of  the  transaction,  which  was 
entirely  clear  of  any  fraudulent  features,  the  court  held  that  the 
plaintiff,  after  lying  by  for  twelve  years,  was  guilty  of  laches,  and 
that,  having  shown  no  impediments  in  his  way  preventing  an  ear- 
lier prosecution  of  his  suit,  he  could  not  then,  on  the  bonds  having 
reaclied  a  higher  value,  maintain  an  action  which,  but  for  his 
ap])roval  and  long  acquiescence  in  the  purchase,  he  could  have 
sustained.^ 


ferri'd,  there  may  Vje  cases  in  which,  from 
great  length  of  time,  such  facts  would  be 
im'sumeil.  Lifi!  Assoc,  of  Scotland  v. 
vSidilall,  3  De  tJ.  F.  &  J.  58.  See  GrilKths 
«.  Pditer.  2.1  Bcav.  236  ;  Cope  v.  Clark, 
IS  W.  R.  279  ;  UriRht  i).  Legerton,  29 
Biav.  60  ;  Haby  v.  Kiik-hnlgh,  7  Ue  G. 
M.  &(i.  104. 

'  linvKarth  ».  Wcarinp,  L.  R.  12  Eq.  320. 
InadtMjUiU'y  of  cunsidt-ratioii,  under  such 
circiiiii.Htiinci-s,  is  a  niittorial  eh'uient,  as 
goiiij{  to  show  fraud  in  one  in  a  quasi 
liiliiiiary  relation.  See  Cooke  i;.  Laniotte, 
IT)  liiiiv.  234  ;  Cariunail  v.  I'owis,  10 
Bfftv.  W  ;  Kvans  v.  Idewellyn,  2  Bro.  Ch. 
1.1(1.  iScc  'rurner  v.  Harvey,  iw.  169, 
178  ;  Itawlins  v.  Wickhain,  8  Dl  G.  Ac  ,1. 
304,  as  to  the  cU'ect  of' such  mtsreim'scnta- 
tioiis  wiicn  made  bv  even  nn  entire  stranjji'r. 

■^  Marsh  V.  Wliitiuore,  21  Wall.  178. 
Till' 1(111  rt  say  :  "The  <|uestion  i  whether, 
«ft('r  this  long  aci|uiescence  in  the  acts 
1)1  till-  clofi'ndant,  with  knowledf^  of  the 
tniiisacti.in,  the  couiidiiiiiant  can  cali  \\\mn 
iiiiii  to  acc'dunt  for  the  iirnsent  value  of 
tlif  IhiihIs  purchaseil  by  him.  Most  un- 
doiiliiiMJly  tliat  sale  wiis  voidable.  The 
chBruutcr  of  veuJor  and  (jurchnser  cauuot 


be  held  by  the  same  person.  They  im- 
pose different  ohlij^ations.  Their  union 
in  the  same  ])ersoii  would  at  once  raise  a 
conflict  between  interest  antl  duty;  and, 
constituted  as  humanity  is,  in  the  ma> 
jority  of  cases  duty  would  1k'  overliorne 
in  the  struj;gle.  The  law,  therefore,  wisely 
prohibits  a  |iarty  selling;  on  another's  ac- 
count from  becoming;  a  buyer  on  his  own 
at  the  sale,  ami  will  always  condemn 
transact  lulls  of  that  charuiter  whenever 
their  eidorcement  is  attempted.  The  de- 
fendant could  have  treated  the  purchase 
made  )iy  the  deteiiihiiit  ii.s  a  nullity.  He 
could  have  insisted  that  the  relation  of 
the  dcreiidant  to  the  property  was  not 
chanj^eil  by  the  proceeding;,  and  that  he 
stiiod  charged  with  the  same  trust  respect- 
iiij;  it  with  which  lie  was  ehnr^ed  previ- 
ously. And  w(  re  thi'ie  nothing;  more  in 
the  ease  than  the  faet  of  the  siili  and  pur- 
chase, the  com|iliiiiiant  would  be  entitled 
to  call  the  defendant  to  account  for  the 
full  value  of  the  bonds.  But  unfortu- 
natidy  for  him  there  is  more  in  the  case. 
He  has  adopted  and  approved  of  the  trans- 
action. Ills  declaration  to  the  ilefendant 
at  Augusu  the  year  following  the  sale  ia 


ri 


h 


%} 


1 


r 
Iflflfli 

'if*  {flip 

•    -''.■■     :  -i. 


\    I 


:'  -,  i  ' 


?i 


< 


466 


COMMENTARIES  ON  SALES. 


[book  II. 


Van  Felt,  not  wishing  to  be  known  in  the  transaction,  had  a 
steamboat  purchased  in  the  name  of  Vanderbilt,  Van  Pelt  supply- 
ing the  funds.  After  the  death  of  Van  Pelt,  the  steamboat  was 
purchased  by  the  appellants,  innocent  third  parties,  for  full  value. 
The  Supreme  Court  of  the  United  States  held,  reversing  the  judg- 
ment of  the  Circuit  Court  for  Maine,  that  the  title  passed  to  the 
purchasers,  for  although,  as  between  Vanderbilt  and  the  represen- 
tative of  his  principal,  the  legal  title  would  not  avail ;  as  respects 
third  persons  who  had  bought  in  good  faith  for  a  valuable  consid- 
eration, the  equity  of  the  case  turns  against  the  party  who  has  en- 
abled his  agent  or  any  other  person  to  hold  himself  forth  to  the 
world  as  having  not  only  the  possession,  but  the  usual  documen- 
tary evidence  or  pr(>perty  in  the  article.^ 

Where  a  bill  was  filed  to  set  aside  a  sale  of  property,  belonging 
to  infant  tenants  in  common,  made  under  order  of  court,  upon 
the  ground  that  there  w^s  constructive  fraud  by  the  purchasers, 
the  Supreme  Court  of  tiie  United  States  held  that,  though  some  of 


evidence  tending  to  that  eflect,  and  con- 
sidered in  connection  with  Iiis  long  acqui- 
escence in  the  tranfiaction,  must  be  deeuied 
conclusive.  Had  he  at  once  denied  the 
validity  of  the  transaction,  or  by  any  dec- 
laration or  proceeding  indicated  dissatis- 
faction with  it,  or  even  refrained  from 
expressions  of  approval,  he  would  have 
stood  11  a  court  of  equity  in  a  very  dif- 
ferent position.  Tiiere  is  no  doubt  that 
the  prices  bid  at  the  sale  were  all  that  the 
bonds  were  then  worth,  and  there  is  no 
reason  for  imputing  intentional  fruud  to 
the  defendant.  Under  these  circum- 
stances he  may  very  well  have  bt-en  jus- 
tified in  assuming,  and  in  acting  u]x)u  the 
assumption,  that  the  complainant  was  sat- 
isfied with  hia  proceedings."  Ibid,  at  j). 
183  et  seq.  In  Hadger  v.  Badger,  2  Wall. 
87,  94,  t'le  court  state  the  principles  gov- 
erning sich  cases,  as  follows  :  "  In  such 
cases  courts  of  equity  act  upon  their  own 
inherent  doctrine  of  discouraging,  for  the 
(teace  of  societj ,  anti(iuated  demands,  re- 
fuse to  interfere  where  there  liave  been 
gross  laches  in  prosecuting  the  chum,  or 
long  acquiescence  iit  the  assertion  of 
adverse  rights.  Lou;;  acquiescence  and 
laches  by  parties  o>U  of  possession  are  pro- 
ductive of  much  hardship  and  i:>justice  to 
others,  and  cannot  bo  excused  but  by 
showiu!^  some  actual  hiiidrance  or  im- 
ped'iiient,  causeii  by  thv  fiuud  or  con- 
roalmeiit  of  the  parties  in  possession, 
which  will  appeal  to  the  conscience  of 
the  Chancellor.  The  party  who  makes 
such  appeal  sho\ild  set  forth  in  his  bill 
specifically  what  were  the  imi^edimeuts  to 
aQ  early  prosecution  of  his  claim  ;  how 


he  came  to  be  so  long  ignorant  of  his 
right's,  and  the  means  used  l)y  the  res[ion- 
dent  to  fraudulently  keep  him  in  igno- 
rance ;  and  how  atxl  when  he  first  came 
to  a  knowledge  of  the  matters  allcgMl  iu 
his  bill ;  otherwise  the  Chancellur  may 
justly  refuse  to  consider  his  case,  on  his 
own  showing,  without  inquiring  whether 
there  is  a  detnuiTor  or  formal  plea  of  tL« 
statute  of  limitaticns  contained  in  the 
answer."  And  '.ee  the  authorities  cited 
in  the  previous  note. 

1  The  Calais  Steamlwat  Co.  v.  Scudder, 
2  Black,  372.  As  to  the  necessity  of  in- 
quiry in  such  case,  see  Jones  v.  Smith,  1 
Phil.  244;   Hiern  v.  Mill.  13  VVs.  114, 

1  20 ;  Jackson  v.  Kome,  2  S.  &  St.  47J, 
475j  Whilbread  v.  Jordan,  1  B.  k  C.  303; 
Kennedy  t>.  Green,  3  M.  &  K.  69tt,  713; 
Forrars  v.  Cherry,  2  Vern.  384  ;  Miles  d. 
Langlej',  1  R.  &  M.  39  ;  Plumb  v.  I'iiiitt, 

2  Anstr.  432;  Evan?  v.  Bicknell,  6  Ves. 
174  ;  Cothay  v.  Sydenham,  2  Hio.  Cli. 
391.  And  see  Over  v.  Pearson,  3  B.  &  C. 
38  ;  Mowrey  v.  VValsh,  8  Cow.  238,  as  to 
purchases  bj  innocent  parties  from  par- 
ties fraudulently  obtaining  title.  Seo  also 
Horwood  V.  8mith,  2  T.  H.  750  ;  I'arker 
V.  Patiick,  6  T.  K.  175  ;  Wheelwiif.'ht  r. 
Depeyster,  1  Johns.  471  ;  McCaity  r. 
Vickery,  12  Johns.  348.  Jackson  v.  Walsh, 
14  Johns.  407,  415,  per  Tiiompson,  ('.  .1.: 
"  It  has  been  a  long  and  well-scttliil  prin- 
ciple that  a  purchaser  for  a  valualiii'  lO"- 
sideration  without  notice  has  a  good  title, 
though  he  purchase  of  one  who  has  oh- 
tained  the  conveyance  by  fraud."  See 
Jackson  v.  Ileury,  10  Jolms.  185,  197. 


FAKT  VI.] 


FIDUCIABT  BELiTIONS. 


457 


the  defendants  who  stood  in  fiduciary  relations  with  tho  infants 
appeared  to  have  become  interested  in  the  property,  it  was  not  un- 
til after  those  relations  had  ceased ;  and  that,  therefore,  the  bill 
could  not  be  sustained.^ 

The  assignee  of  bankrupts  sold  tug-boats,  dredges,  and  other 
j)er80ual  property  to  H. ;  which  sale  was  confirmed  by  tho  court. 
fi.  not  paying  for  the  proiKjrty,  the  court  made  an  ex  parte  order 
setting  aside  tho  sale  to  H.,  and  directing  that  the  property  be  sold 
to  the  defendants,  which  was  done  ;  they  paying  the  purchase- 
monoy.  The  sale  to  the  defendants  was  subsequently  cancelled 
by  the  court,  and  the  original  sale  to  H.  was  carried  out.  II.  and 
his  principal,  C,  filed  a  bill  to  compel  the  defendants  to  account 
for  the  profits  from  the  use  of  the  property  while  in  their  posses- 
sion, on  the  g^^^'uid  that  they  were  constructive  trustees  for  tho 
plaintilfs.  Tut  Supreme  Court,  reversing  the  decision  of  the  Cir- 
cuit Court,  held,  that  the  defendants,  having  purchased  the  property 
under  a  judicial  sale, — receiving  the  property  from  the  hands  of 
the  court,  —  did  not  occupy  any  fiduciary  relation  with  the  plain- 
tiffs, with  whom  there  was  no  privity  of  contract,  and  against 
whom  they  lield  the  property  adversely  and  without  any  liability  to 
acount  for  the  profits ;  and  directed  that  the  bill  be  dismissed.^ 

Wliere  one,  whose  duty  it  was  as  the  agent  of  his  jirincipal  to 
pay  taxes  on  his  principal's  property  to  prevent  its  sale,  in  viola- 
tion of  his  duty  jiermitted  the  property  to  be  sold,  and  himself 
became  the  purchaser,  the  Supreme  Court  of  the  United  States 
declared  that  there  was  nothing  in  law  or  morality  plainer  than 
that  the  purchase  must  be  held  to  be  in  trust  for  the  benefit  of  the 
principal,  on  his  re-payment  of  the  sum  advanced  by  his  agent.* 


'  Kearney  v.  Taylor,  15  How.  494. 

»  loiiio  V.  <'rane,  110  U.  S.  403.  See 
Rami  c.  Iteyuolils,  1;')  C'ul.  460  ;  Heynolils 
V.  Harris,  14  Cal.  (i67;  I^upton  v,  Aluiy, 
4  Wis.  -242. 

'  liolhwell  r.  Dewes,  2  Hlack,  613; 
Ex  jxtiii'  ,]iuws,  8  Ves.  337.  In  this  lat- 
ter luse,  Lord  KMonsaiil:  "The  (loctriiie 
as  to  iHuvliast's  by  trustees,  assignees  [('.  «., 
in  baiikniittcy],  and  pei'sons  havin<;  a  I'un- 
fidential  diaraeter,  stands  much  more  uiM>a 
general  |)rineii)le  than  upon  the  cir'nuu- 
stances  (if  any  individual  case.  It  rests 
upon  tliis,  —  that  the  purelmse  is  not  jM-r- 
niitted  in  anj  cnse,  however  honest  the 
drcunistances,  the  general  interests  of 
justice  re(|uiring  it  to  be  destroyed  in 
every  instance  ;  as  no  court  is  ecjual  to 
the  examination  and  ascertainment  of  the 
tmtii  in  much  the  greater  number  of  cases. 
The  principle  has  been  cairied  so  high 
that  where  a  trustee  in  a  renewable  lease 
endeavored  fairly  and  honestly  to  treat 


for  a  renewal  on  account  of  the  centui  que 
trust,  and  the  lessor  positively  refusing  to 
grant  a  renewal  for  his  Ijenefil,  tUe  trus- 
tee, as  he  very  honestly  might  under  those 
circumstances,  took  the  lease  for  himself, 
it  was  held,  that  even  in  such  a  case  it  is 
so  (iitticult  to  Ix!  sure  there  was  not  nuin- 
agenient,  —  a  dilliculty  tiiat  might  exist 
in  a  much  greater  degree  in  many  other 
cases  having  the  same  asjiect,  —  tliat  the 
lease,  taken  by  the  trustee  <'(';im  a  person 
who  would  not  renew  foi  the  beuelit  of 
the  cestui  que  trusi,  should  be  considered 
taken  for  his  benefit  ;  and  should  Ix;  de- 
stroyed rather  than  that  the  trustee  should 
hold  it  himself  undc  *hoseeireumstaiices. 
The  principle  as  to  trustees  is  certainly 
stated  very  ditterently  in  ditfeient  author- 
ities. It  is  not,  in  my  opinion,  that  it 
must  be  shown  that  the  trustee  has  nuulo 
an  advantage,  as  it  is  stated  in  some  of 
them.  The  case  I  put  of  tho  infant  as  to 
the  lease  negatives  that,    Tlie  principle 


t 


'^"i 


14  t 


:    'V! 


t' 


'■  1, 


U    \ 


T, 


h   .: 


■s 


Hi 


lU' 


n. 


t    '  ii  : 


' 


463 


COMMENTARIES  ON  SALES. 


[book  II. 


Unless  restrained  by  statute,  an  executor  can  dispose  of  the 
personal  assets  of  his  testator,  by  sale  or  pledge,  for  all  purposes 


is,  that,  as  the  trastee  is  bound  by  his 
duty  to  ac(iuire  all  the  knowledge  pos- 
sible, to  enable  him  to  sell  to  the  utmost 
advantage  for  the  cestui  que  trust,  the 
question,  what  knowledge  he  has  ob- 
tained, and  whether  he  has  fairly  given 
the  benefit  of  that  knowledge  to  the  cestui 
que  trust,  which  he  always  ae({uires  at  the 
expense  of  the  cestui  que  trust,  no  court 
can  discuss  with  ttomiietent  suttioiency  or 
safety  to  the  parties."  Ex  parte  James,  8 
Ves.  337,  345,  348.  It  was  therefore,  on 
the  application  of  these  principles,  held  in 
this  cii.se  that  the  purchase  at  pul>lic  auc- 
tion of  a  lunkrupts  estate  by  the  solicitor 
to  the  connuisaiou  at  a  price  much  bttyond 
its  appraised  value,  and  at  a  much  Ingher 
price  tlian  it  would  liuve  realized  if  he  had 
not  bidden  on  it,  should,  on  the  applica- 
tion of  the  Imiikrupt's  representative,  be 
•et  aside,  the  Lord  Chancellor  refusing  to 
allow  the  solicitor,  discharging  himself 
from  his  character  as  such,  to  bid  u{H)n 
the  re-sale  of  the  estate,  without  the  pre- 
vious consent  of  the  parties  interested, 
frecl}'  given,  uiion  full  information.  It 
was  further  hehl  that  the  purchase  of  divi- 
dends by  the  assignee  and  solicitor,  under 
a  commission  of  biMikruptcy,  could  not  l)e 
for  their  own  benelit,  and  that,  to  set  aside 
a  purclia.  by  a  trust^-e  of  the  trust  i)rop- 
erty,  it  is  not  necessary  to  show  that  he  has 
made  any  advantage.  As  to  the  purchase 
of  the  dividends  by  the  solicitor,  Ijord 
Eldon  said:  "As  to  the  dividends,  it  is 
not  contended  that  ai  assignee  can  buy 
dividends.  It  goes  upjn  the  old  principle 
that  an  executor  cannot  buy  the  debts  due 
from  the  testator.  First,  the  possession 
of  the  property  gives  him  the  opportunity 
of  dealing  for  the  purchase.  All  the  gain 
he  gains,  upon  ordinary  princii<les,  for 
those  who  are  entitled  to  the  property. 
But  also  the  principle  upon  which  I  have 
before  proceeded  applies  to  both  the  as- 
signee and  the  solicitor.  My  opinion  is, 
that  if  there  is  any  sjMscies  of  trustee  or 
agent  against  whom  the  principle  ougat 
to  be  strictly  held,  it  is  the  assignee  in 
bankruptcy  and  the  agents  for  him.  In 
the  case  of  general  trustees,  the  jmrty  may 
have  ample  means  from  other  sources. 
But  the  assignee  liiis  the  Imnkrupt  and 
his  proiMirty  altogether  under  his  own  dis- 
posal, and  means  of  working  upon  him 
much  more  tliim  trustees  in  ordinary  cases 
have.  So  as  to  the  solicitor  und(;r  the 
commisNion.  With  rcgaril  to  creditors,  to 
what  a  scene  it  would  o|Mm  if  either  of 
them  could  buy  the  dividends  for  his  own 
beneflt  ?  I  go  upon  the  naked  principle  ; 
for  upon  these  atiidavits  it  is  very  strong 


that  the  family  of  the  bankiupt  dealt  with 
the  solicitor,  and  state  their-^elves  as  per- 
fectly satisfied  with  his  dealing  with  them. 
But  upon  the  general  principle  it  is  ob 
vious  that  banKru[)tcy  would  become  a 
stock-in-trade  if  the  solicitor  can  throw 
all  ditHculties  in  the  way,  making  tiiat 
the  means  of  buying  the  dividends  them- 
selves." In  Whi(;hcote  v.  Lawrence,  3 
Ves.  740,  750,  Lord  Hosslyn,  dealing  with 
the  question  of  one  occupying  a  tiduci-rv 
position  purchasing  the  fiduciary  est.ite, 
said  :  "  It  is  stated  as  a  pro]iosition  that  a 
trustee  cannot  buy  of  a  cestui  que  Iru^. 
Certainly  that  naked  proposition  is  not 
correctly  true ;  but  an  emanation  from 
that  which  prevails  in  all  cases,  iu  all 
laws  and  countries,  where  trusts  are  ad- 
mitted, led  to  great  discussion  in  McKen- 
zie's  case,  to  prove  that  the  sale,  where 
the  trustee  '.o  sell  is  the  purchaser,  is  ipso 
jure  null ;  that  there  is  no  sale,  no  con- 
tracting party.  That  is  not  the  real  sense 
of  the  proposition;  but  it  is  this,  —  which 
is  very  plain  in  point  of  equity,  and  a 
principle  of  clear  reasoning,  —  that  he 
who  undertakes  to  act  for  another  in  any 
matter  shall  not  in  the  same  matter  ai't 
for  himself.  Therefore  a  trustee  to  sell 
shall  not  gain  any  advantage  by  bt'ing 
himself  the  person  to  buy.  He  is  not 
acting  with  that  want  of  interest,  that 
total  absence  of  temptation,  that  duty 
imposed  uinm  him  that  he  shall  g:iin  no 
profit.  The  conseijuence  is,  beyond  doubt, 
that  in  whatever  shape  that  profit  re- 
dounds to  him,  whether  by  managcmHnt, 
which  is  the  common  case,  or  by  superior 
good  fortune,  it  is  not  fit  that  benefit  shall 
remain  to  him.  It  ought  to  be  communi- 
cated to  those  wliose  interests  being  put 
under  his  care  afforded  him  the  means  of 
gaining  that  advantage."  The  principle, 
wo  think,  is  much  better  stated  by  Lord 
Kldon,  in  Ex  parte  l.acey,  6  Ves.  625, 
thus:  "The  rule  I  take  to  Im>  this,  —not 
that  a  trustee  cannot  buy  front  his  crstiii 
que  trust,  but  that  he  shall  not  buy  from 
liimself.  If  a  trustee  will  so  de.i!  with  his 
cestui  que  trust  tJiat  the  amount  of  the 
transaction  shakes  off  tht-  oliligntion  that 
attaches  upon  him  as  trustee,  then  he 
may  buy.  If  that  case  (Wliiihonti'  i'. 
Liiwrence)  is  rightly  understood,  it  cannot 
lead  to  much  mistake.  The  true  iiitfiiirc- 
tiition  of  what  is  there  reporteil  docs  not 
break  in  upon  the  law  ns  to  trustees.  The 
rule  is  this :  A  trustee  who  is  intrusted  to 
sell  and  manage  for  others  undertakes,  in 
the  same  moment  in  wliii  h  he  iK-eoines  a 
trustee,  not  to  manage  for  the  liciietit  and 
advantage  of  himself,     it  does  not  pre- 


PART  VI.] 


FIDUCIARY  RELATIONS. 


459 


connected  with  the  discharge  of  his  duties  under  the  will.  And 
even  where  the  sale  or  pledge  is  made  for  other  purposes,  of  which 
the  purchaser  or  pledgee  has  no  knowledge  or  notice,  but  takes 


elude  a  new  contract  with  those  who  have 
intrusted  him.     It  does  not  prechide  him 
t'ruiu  bargaining  that  lie  will  no  longer  uut 
as  a  trustee.     The  ceatuis  que  trust  may 
bv  a  new  contrnut  dismiss  him  from  that 
(•liarat.ter ;  but  even  then  that  transaction 
by  which  they  dismiss  him  must,  accord- 
ing to  the  rules  of  the  court,  be  watched 
with  intinite  and  the  most  guarded  jeal- 
ousy;  and  for  this  reason,  that  the  law 
supposes  him  to  have  acquired  all  the 
kiiHwli'dge  a  trustee  may  ac(|uire,  which 
uiay  Im;  very  useful  to  him,  but  the  com- 
munication of  which  to  the  cestui  que  trust 
the  court  can  never  be  sure  he  has  made 
when  entering  into  the  new  contract  by 
which  he  is  discharged,     i  disavow  that 
interpretation  of  Lord  Kosslyn's  doctrine 
(in  Whichcote  v.  Lawrence)  that  the  trus- 
tee nmst  take  advantage.     1  say,  whether 
he  makes  advantage  or  not,  if  the  connec- 
tion does  nut  satisfactorily  apmar  to  have 
been  dissolved,  it  is  in  the  choice  of  the 
asltiis  que  trust  whether  they  will  take 
biek  tlu!  projwrty  or  not,  if  the  trustee  has 
made  no  advantage."     The  ground  of  the 
rule  is,  that  though  you  may  see  in  a  par- 
ticular case  tha^  the  trustee  has  not  nuide 
advanlagi',  it  is  utterly  impossible  to  ex- 
amine, uiMin  satisfactory  evidence  in  the 
(tower  of  the  court,  in  ninety-nine  cases 
out  of  a  hundred,  whether  he  has  made 
advantage  or  not.     The  question  is  very 
elaborately  examined  by  Chancellor  Kent 
in  Davouc  v.  Fanning,  2  Johns.  Ch.  252, 
where  the  rule   as   above   laid  down   by 
Lord  Kldon  is  concurred  in  ;  and  it  was 
held  that  if  a  trustee,  or  person  acting  for 
others,  sells  the  trust  estate,  and  becomes 
himself  interested  in  the  purchase,  the  ccs- 
iuix  que  trust  are  entitled,  as  of  course,  to 
have  the  ])Urcha8e  set  aside,  and  the  prop- 
erty re-exjiosed  to  sale  under  the  direction 
(if  the  court.    And  it  makes  no  ditference, 
in  the  application  of  the  rule,  that  a  sale 
was  at  public  auction,  bond  fide,  and  for  a 
fair  III  ice,  and  that  the  executor  did  not 
imrchasc  for  himself,  but  a  third  person, 
by  previous  arrangement,  became  the  pur- 
chaser, to  hold  in  trust  for  the  si'|)aiate 
use  and  benefit  of  the  wife  of  the  executor, 
who  was  one  of  the  cestuis  que  trust.    This 
ilwtriiie   is  now   well   established.      The 
ca-ses  to  this  effect  are  very  numerous. 
Heme  i\  .Meeres,  1  Vern.  465  ;   Ayliffe  tj. 
Muiiav,  2  Atk.  60  ;   Fox  v.  Mackreth,  2 
Bro.  (.  C.  400;    Coles  v.  Trecothick,  9 
Vcs.  2;U  ;    A>  parte  Lacey,  6  Ves.  625  ; 
Morse  r.  Royal,  12  Ves.  .372  ;    Hunter  v. 
Atkins,  ;j  M.  &  K.  135 ;  Whichcote  i'. 
Uwreuce,  3  Ves.  740 ;  Scott  v.  Davis,  4 


M.  &  Cr.  87;  Kerr  v.  Lord  Dungannon,  1 
Dr.  &  \V.  609,  641;  Whelpdale  v.  Cook- 
son,  1  Vos.  9;  Lister  i*.  Lister,  6  Ves.  631; 
Sanderson  i;.  SValker,  13  Ves.  601 ;  Downea 
V.  Grazebrook,  3  Mer.  200  ;  Campbell  v. 
Walker,  6  Ves.  678  ;  Lees  v.  Nuttall,  1 
Kuss.  &  M.  63;  2  M.  &  K.  819;  Copeland 
V.  Merc.  Ins.  Co.,  6  Pick.  196;  Reed  v. 
Warner,  5  Paige,  650  ;  Reed  v.  Norris,  2 
M.  &  Cr.  374;  Heal  v.  McKieim.in,  6  Mill. 
La.  407;  Matthews  i'.  Dragand,  3  Dess. 
26  ;  Monroe  v.  Alaire,  2  Caiites,  Ca.  192  ; 
Taylor  v.  Salmon,  2  C.  &  M.  130.  If  the 
trustee  liaa  made  any  benefit  by  the  trans- 
action, he  must  account  for  it.  If  he  has 
sustained  a  loss,  he  must  bear  that  him- 
self. Ex  parte  Hughes,  6  Ves.  622 ;  £x 
])arte  Lacy,  6  Ves.  628  ;  Ex  parte  H<Mlg- 
son,  1  Ulyn  &  J.  14  ;  Ex  parte  Lewis,  Ih. 
70  :  Ex  parte  Buxton,  lb.  357;  Ex  parte 
Bage,  4  Madd.  460  ;  Ex  parte  lieiinett,  10 
Ves.  383;  Ex  ftartc  James,  8  Ves.  347. 

A  party  acting  in  a  fiduciary  capacity 
cannot  sell  to  himself.  Thus,  where  B. 
was  a  member  of  a  firm  of  three  partnere, 
and  also  the  surviving  member  of  another 
finii  of  two  purtiier.s,  which  was  the  sole 
or  chief  creditor  of  the  first  firm,  B.'s 
executor  purchased  the  estate  of  the  firet 
firm  for  his  own  benefit,  with  the  result 
that  nothing  was  left  for  B.'s  widow  and 
universal  legatee.  It  was  held  by  the 
piivy  council,  affirming  the  decree  of  the 
Supreme  Court  of  Natal,  in  o  suit  by  the 
widow  against  the  executor,  that  such  sale 
was  voidable,  and  that  in  this  case  it 
was  not  barred  by  delay  or  acceptance  of 
money,  on  the  ground  either  of  ratifica- 
tion, acipiiescence,  or  laches.  Iteiiingfield 
I'.  Baxter,  12  App.  Cas.  167.  See  Sen- 
house  V.  Christian,  cited  in  Norway  v. 
Rowe,  19  Ves.  158  ;  Hart  v.  Clarke,  19 
Beav.  356;  Prendergast  v.  Turton,  I  Y.  k 
v.  98  ;  Wentworth  v.  Lloyd,  32  Beav. 
474  ;  In  re  Cross,  20  Ch.  I>iv.  109;  Cock- 
eriU  V.  Cholmeley,  1  Russ.  &  M.  424; 
Savory  v.  King,  5  H.  L.  Cas.  627. 

By  the  civil  law  it  was  the  rule  that 
a  guardian  could  not  buy  the  property  of 
his  ward.  The  same  rule  was  extended  to 
like  cases  ;  that  is,  to  curators,  attorneys, 
and  those  who  conduct  the  affairs  of 
othei-s.  Dig.  18,  1.  34.  Again,  Dig.  18, 
1,  46:  "It  is  not  allowed  any  one  from 
the  office  which  he  jHiiforms  to  buy  any- 
thing through  himself  or  another."  Our 
law,  though  derived  from  the  civil  law, 
differs  from  that,  inasmuch  as  by  the  civil 
law  one  in  a  fiduciary  jtosition  could  pur- 
chase the  trust  property  at  public  auction. 
Dig.  18.  1,  34. 


\  V 


{\\ 


i 


460 


COMMENTARIES  ON  SALES. 


[book  II. 


the  property  in  good  faith,  the  transaction  will  be  sustained  ;  for 
the  purchaser  or  pledgee  is  not  bound  to  see  to  the  disposition  of 
the  proceeds  received.  But  the  case  is  otherwise  where  tlio  pur- 
chaser or  pledgee  has  knowledge  of  the  perversion  of  the  property 
to  other  purposes  than  those  of  the  estate,  or  the  intended  perver- 
sion of  the  proceeds.  The  executor,  tliough  holding  the  title  to 
the  personal  assets,  is  not  absolute  owner  of  them.  They  arc  not 
liable  for  his  debts,  nor  can  he  dispose  of  them  by  will.  He  holds 
them  in  trust  to  pay  the  debts  of  the  deceased,  and  then  to  dis- 
charge his  legacies,  and,  as  in  all  other  cases  of  trust,  he  is  per- 
sonally responsible  for  any  breach  of  duty.  And  property  thus 
held,  acquired  from  him  by  third  parties  vith  knowledge  of  his 
trust  and  his  disregard  of  his  obligations,  can  be  followed  and  re- 
covered. The  law  exacts  the  most  perfect  good  faith  from  all 
parties  dealing  with  a  trustee  respecting  trust  property.  Wlio- 
ever  takes  it  for  an  object  other  than  the  general  purposes  of  the 
trust,  or  such  as  may  reasonably  be  supposed  to  be  within  its 
scope,  must  look  to  the  authority  of  the  trustee,  or  he  will  act  at 
his  peril.* 

Where  one  entitled  to  the  property  of  a  deceased  person  brings 
a  suit  against  the  agents  of  executors  de  son  tort  for  money  re- 
ceived for  the  sale  of  the  property  of  the  deceased,  he  ratifies  and 
affirms  the  sale,  and  assumpsit  for  money  had  and  received  will 
lie  for  such  proceeds.^  A  ratification  of  the  sale  is  also  a  ratifica- 
tion of  the  act  of  the  agent  in  respect  to  the  payment  of  the  pro- 
ceeds of  the  sales  to  the  executors  de  son  tort?  If  a  principal 
ratifies  that  which  favors  him,  he  ratifies  the  whole.* 


»  Smith  V.  Ayer,  101  U.  S.  320.  It  is 
laid  down  by  Savage,  C.  J.,  in  Colt  v.  Las- 
nier,  9  Cow.  342,  that  the  purchaser  is  siife 
if  ho  is  no  jiarty  to  any  fraud  in  the  execu- 
tor, and  has  no  knowledge  or  proof  that 
the  executor  intendetl  to  misapply  the 
proceeds,  or  was,  in  fact,  by  the  very 
transaction,  applying  them  to  the  extin- 
ffuishing  of  his  own  private  debt.  Uut  he 
buys  at  his  \w\'\\  ;  yet  if  he  has  no  such 
proof  or  knowledge,  he  is  not  bound  to 
inquire  into  the  state  of  the  trust,  be- 
cause he  has  no  means  to  support  the 
inquiry,  and  he  may  safely  rei»ose  on  the 
^neral  presumption  that  the  executor  is 
in  the  due  exercise  of  his  trust.  Field  v, 
Schietfclin,  7  Johns.  Ch.  150 ;  Saxon  ?». 
Barksdale,  4  Dess.  526;  Miller  v.  William- 
son,  6  Md.  219;  Thnmasson  v.  Brown,  43 
Ind.  203 ;  Petrie  v.  Clark,  11  8.  &  R.  377; 
McLeod  V.  Drummond,  17  Ves.  152.  Any 
person  receiving  from  an  executor  the  as- 
sets of  his  testator,  knowing  that  this  dis- 
position of  them  is  a  violation  of  his  dut}', 


is  to  bo  adjudged  as  conniving  with  the 
executor,  and  such  a  person  is  resiionsible 
for  the  property  thus  received,  either  as  a 
purchaser  or  a  pledgee.  Colt  v.  Liisiiier, 
9  Cow.  342.  The  jiaymcnt  by  the  e.xi'cu- 
tor  of  his  own  private  debt  with  tii**  assets 
of  his  testator  is  a  devnalavit.  C)it>i;k  c. 
Watkins,  2  8.  &  S.  199;  Cubbidgo  r.  IJoat- 
Wright,  1  Russ.  649;  Panncll  v.  Hurley, 
2  Coll.  241 ;  Wilson  v.  Moore,  1  Mv.  * 
K.  337;  Kcane  v.  Robarts,  4  Mmlil.  3.1"; 
Eland  V.  Eland,  4  M.  &  Cr.  427;  .Miller 
V.  William.son,  5  Mil.  219;  Hill  v.  Simp- 
son, 7  Ves.  152 ;  Allendcr  v.  Uiston,  2  ('.ill 
&  J.  98  ;  Allwrt  v.  Savings  Hank,  2  Md. 
168. 

a  Pickord  v.  Bankes,  13  East,  20; 
Spratt  V.  Hobhonse,  4  Ring.  173;  Israel 
V.  Douglass,  1  H.  Bl.  2.39;  Bt'ttnlslcv  »■ 
Root,  11  Johns.  4fl4;  Hule  v.  Marston, 
17  Mass.  675;  Claflin  o.  Godfny,  21 
Pick.  1. 

«  Gaines  v.  Miller,  111  U.  S.  395. 

♦  Skinner  v.  Dayton,  19  Johns.  513, 


PART  VI.] 


FIDUCIART  RELATIONS. 


461 


Itlier  M  a 
Liisiiier, 
lie  ext'cu- 
the  assets 
Clici'k  I', 
r.  Boat- 
llnrlev, 
,1  Mv.  k 
ul.l.  3S7; 
17;  Mill" 
i>.  Simp- 
Ion,  '2  ('.ill 

Ik,  i  Ma. 

fast,  20; 
li;  Isratl 
Trilsley  »• 
JMarston, 
Ificy,  21 

SOS. 
|ui3.  513, 


An  agent,  who,  as  to  his  principal,  occupies  a  fiduciary  relation, 
will  not  be  allowed  to  put  himself  int<  position  in  which  his  in- 
terest and  his  duty  will  bo  in  conflict,  riicrcfore,  where  a  profit 
has  been  made  by  an  agent,  without  the  knowledge  of  his  princi- 
pal, in  the  course  and  execution  of  his  agency,  the  agent  must 
account  to  his  principal  for  such  profit.  This  rule  is  an  inflexible 
one,  which  the  courts  will  inexorably  apply.     And  a  trustee  or 


554;  Odiorne  v.  Maxey,  13  Miiss.  178, 
m;  Munkiiia  v.  Wiitson,  27  Mo.  163; 
Small  ('.  Atwooil,  6  CI.  k  Fin.  232. 

Ill  Coriiett  V.  Williaiiia,  20  Wiill.  226, 
tlio  validity  of  the  Hiile  of  a  (lecwiswl  pei- 
gon's  piojierty  wiis  (juestioneJ  in  collatfinl 
procvuilings.  liut  the  court  held  that  thi.s 
fould  not  be  done.  The  jwwer  to  review 
Hiiil  reverse  the  decision  nwde  by  a  court 
haviii<;  jurisdiction  in  the  matter  is  clearly 
appellate  in  its  character,  and  can  he  exer- 
cisi'd  only  by  an  apiwllate  tribunal  in  a 
iiroceediiig  had  directly  for  that  purpose. 
It  cannot  and  ought  not  to  be  done  in 
another  case  by  another  court,  where  the 
subject  is  pn'sented  incidentally,  and  a 
reversal  sought  in  such  collateral  proceed- 
injj.  The  settled  rule  of  law  is  that  juris- 
ilictiun  having  attached  in  the  original 
ias«',  everything  done  within  the  iiower  of 
that  jurisdiction,  when  collaterally  cjuos- 
tionvd,  is  to  be  held  conclusive  of  the 
rights  of  the  parties  unless  inipeaclx  d  for 
finud.  Every  intendment  is  made  to  sup- 
itort  the  proceeding.  It  is  regarded  ns  if 
It  were  regular  in  all  things,  and  irrever- 
sible for  error.  In  the  ai)sence  of  fniud 
no  iiuostion  can  he  collatenilly  entertained 
as  to  anything  lying  within  the  jurisdic- 
tional sphere  of  the  original  case.  Mc- 
Nitt  r.  Turner,  16  Wall.  366  ;  (irignon's 
L'ssee  I'.  Astor,  2  How.  341  ;  Voorhees  e. 
Th.'  Bank  of  The  United  States,  10  Pet. 
W  ;  Stow  V.  Kimball,  28  ill.  93  ;  McCoy 
I'.  Morrow,  18  111.  594;  Cody  i>.  Hough, 
20  111.  4.5  ;  KemiKi's  Lessee  t>.  Kennecly, 
5Cmni'h,  172;  Canden  r.  Hurford,  4  Ohio, 
133  ;  Taylor  t>.  McDonald,  4  Ohio,  1.14. 

Where  there  is  a  sale  of  goods  by  ex- 
ecutors, even  though  they  may  not  in 
sinvic  hive  iH'longed  to  the  testator,  if 
the  proceeds  when  recovered  would  In?  as- 
sets of  the  testator,  the  executors  can  sue 
in  their  rcpivseiitativo  capacity.  Ablnitt 
».  I'aititt,  I,.  K.  6  Q.  B.  346.  See  t'owell 
I'.  Watts,  ti  Kast,  409  ;  Heath  v.  Chilton, 
12  M.  k  W.  637  ;  Webster  v.  Spencer, 
3  B.  &  .\1.1.  360  ;  Aspinail  v.  Wake,  10 
Rin<;.  ,11 :  Brassington  v.  Ault,  3  Biiig. 
177;  Dowiiiggin  v.  Harrison,  10  B.  &  C. 
666 :  Hoggs  V.  Bond.  2  llawle,  102. 

In  Vcntress  v.  Smith,  10  Peters,  161, 
the  United  Sutes  Supreme  Court  held  (1) 
that,  under  the  laws  of  Alabama,  an  ex- 
ecutor or  adminutrator  cannot  sell  per- 


sonal proi»erty  at  private  sale  tinless  so  di- 
rected by  the  will  of  a  testator  ;  nor  can 
he  sell  at  all  without  un  authority  from 
the  orphans'  court ;  and  (2)  that  executors 
i>nd  adiniiiistnitors  must  pui-sue  strictly 
their  powers  of  sale,  otherwise  they  do 
not  devest  the  title  or  conclude  those  in- 
terested. Emos  V.  .laiiKvs,  4  Mini.  (Va. ) 
194  ;  Knox  v.  Jeiiks,  7  Ma.ss.  488  ;  Lock- 
wood  V.  Sturdevaut,  6  Conn.  387  ;  Bcrger 
V.  Dutr,  4  Johns.  Ch.  368. 

In  Lamar  i;.  Micon,  112  U.  S.  4.12,  475, 
it  was  held  that  a  guardian  has  the  au- 
thority without  any  order  of  court  to  sell 
jH-rsonal  projierty  of  his  wanl  in  his  jios- 
scssion,  and  to  reinvest  th(!  proceeds  ;  Field 
V.  Schiefl'clin,  7  Johns.  Cii.  1.10;  Ellis  v. 
Essex  Merrimack  Bridge  Co.,  2  Pick.  243; 
and  the  fact  that  sueli  a  sale  during  the 
rebellion  was  made  by  the  guardian  with 
the  motive  of  avoiding  its  conti.scation  to 
the  L'liited  States  has  no  btmring  on  the 
question.  The  application  of  the  funds 
of  the  ward  to  the  ))urchase  in  New  York 
of  guaranteed  lH)nds  of  the  (-ities  of  New 
Orleans,  Memphis,  and  Mobile,  and  of 
bonds  of  railways  in  the  .Southern  States, 
indorsed  by  the  .States  in  which  they  were 
chartered,  having  Immmi  made  with  due  t;are 
and  prutlcnce,  and  regard  to  the  pecuniary 
interests  of  his  ward,  was  sustained.  But 
investment  of  the  ward's  funds  in  bonds 
of  the  Confederate  States  was  held  unlaw- 
ful, and  mi  legislative  net  or  judicial  de- 
cree or  decision  of  any  .State  could  .pistify 
it.  The  court  h.'Id  that  the  Confederate 
Ctovcninient  was  in  no  sense  a  lawful  gov- 
eminent,  but  was  a  mere  govcriiiiieiit  of 
force,  having  its  origin  and  foundation  in 
rcliellion  against  the  United  Slates;  that 
the  noti's  and  bonds  issued  in  its  iiniiie 
and  for  its  sii|)])ort  had  no  legal  value  as 
money  or  property  except  by  iigieemeiit  or 
acceptance  ol  parties  (lapable  of  contract- 
ing with  each  other,  and  could  never  be 
regarded  by  a  court  sitting  under  the  au- 
thority of  the  I'liifed  States  as  securities 
in  which  trust  funds  might  be  lawfully 
invcsteil.  Lamar  v.  Micon,  112  U.  S.  452; 
Thorington  o.  Smith,  8  Wall.  1;  Head  i;. 
Starke,  Cha.se,  312 ;  Horn  r.  Lockhart,  17 
Wall.  .170  ;  Confederate  Note  Case,  IS) 
Wall.  548  ;  Sprott  v.  United  States,  20 
Wall.  459;  Fretz  v.  Stover,  22  Wall.  198; 
Alexander  v.  Bryan,  110  U.  S.  414. 


f  ( 


a 


^?Ul 


i   1 


\M 


462 


COMMENTARIES  ON  SALES. 


[book  II. 


agent  for  sale  is  precluded  from  purchasing  from  his  own  pur- 
chaser property  which  he  has  been  entrusted  to  sell  (except  with 
the  liability  of  having  the  transaction  treated  as  for  the  benefit 
of  his  principal),  so  long,  at  least,  as  the  contract  remains  ex- 
ecutory, and  the  trustee  or  agent  has  power  either  to  enforce  it, 
or  to  rescind  or  alter  it. 

This  principle  is  fully  sustained  in  the  important  case  of  Parker 
V.  McKenna,^  where  Lord  Chancellor  Cairns  delivers  an  elaborate 
judgment.  The  defendants  in  that  case,  in  1864,  were  four  of  the 
directors  in  a  joint-stock  bank.  In  that  year  resolutions  were 
passed  to  increase  the  capital  by  the  issue  of  20,000  new  £50 
shares,  which  were  to  be  offered  to  the  old  shareholders  at  the  rate 
of  one  new  share  for  each  old  share  held  by  them,  each  allottee 
paying  for  each  share  .£25  premium,  and  £5  as  a  first  call. 
The  shares  not  taken  up  by  them  were  to  be  disposed  of  by  the 
directors  at  .£30  premium.  The  directors  entered  into  an  ar- 
rangement with  S.  for  him  to  take  at  £30  premium  all  the  shares 
not  taken  up  by  the  old  shareholders.  In  pursuance  of  this,  9,778 
shares  were  allotted  to  S.,  who  paid  only  £5  per  share,  it  being 
arranged  that  the  certificates  for  these  shares  should  bo  withheld ; 
that  the  bank  should  have  a  lien  on  them  for  the  premiums ;  and 
that  no  transfer  from  him  to  any  purchaser  should  bo  registered 
till  the  £30  per  share  on  the  shares  transferred  had  been  paid. 
S.,  being  unable  to  take  up  so  many  shares,  applied  to  the 
defendants  to  relieve  him  of  some  of  them,  and  they  severally 
took  from  him  considerable  numbers  at  £30  per  share,  and  after- 
wards disposed  of  them  at  a  large  profit,  the  £80  per  share  being 
paid  to  the  bank  at  the  times  when  the  shares  were  respectively 
registered  in  the  names  of  purchasers.  It  was  held,  affirming  the 
decision  of  Bacon,  V.  C,  that  the  defendants  must  account  to 
the  bank  for  the  profit  made  by  them  respectively  by  sale  of  the 
shares.' 


»  L.  R.  10  Ch.  Ap.  96. 

*'  See,  where  the  same  principle  has 
been  established,  York  &  North  Midland 
Ry.  Co.  V.  Hudson,  16  l^ar.  485;  Blissett 
V.  Daniel,  10  Hure,  493 ;  Hamilton  v, 
Wright,  9  CI.  &  F.  Ill  ;  Tennant  v. 
Trenohard,  L.  R.  4  Ch.  S3.  And  see 
The  New  Zealand  &  Australian  I^and  Co. 
V.  Watson,  7  Q.  B.  Div.  374,  and  Harris 
V.  Truman,  9  Q.  B.  Div.  264,  with  refer- 
ence to  tiducinry  relations  existing  between 
principals  and  agents ;  in  the  former  of 
which  cases  it  was  held  that,  as  the  de- 
fendants did  not  stand  in  any  fiduciary 
character  towanls  the  plaintiffs,  the  latter 
conld  not  follow  the  proceeds  of  wheat  into 
the  hau^s  of  brokers  employed  to  sell  it 


by  the  plaintifTs'  agents,  without  giviiiR 
credit  for  the  sum  due  the  defendants  by 
the  agents  on  their  general  auonunt  (see 
Bobbins  ».  Pennell,  11  Q.  B.  248;  Stephens 
V.  Badcock,  3  B.  &  Ad.  354  ;  ('obb  v. 
Beeke,  6  Q.  B.  930 ;  Sehmaling  i'.  Thorn- 
linson,  6 Taunt.  147;  Armstrong f.  Stokes, 
L.  R.  7  Q.  B.  698);  and  in  the  latter  case 
it  was  held  that,  as  a  fiduciary  relation  ex- 
isted between  the  plaintiff  and  his  agent, 
the  plaintiff  was  entitled  to  follow  the  pro- 
ceeds of  barley  bought  for  him  by  his 
agent  in  the  hands  of  his  agent's  trustee 
in  bankruptcy,  as  the  trustee  could  not 
stand  in  a  better  jwsition  than  the  bnnk- 
rupt  himself.  Rabone  v.  Williams,  7  T. 
R.  860,  n.;  Sims  v.  Bond,  5  B.  &  Ad. 


PART  VI.] 


FIDUCIARY  RELATIONS. 


468 


389 ;  Mann  v.  Forester,  4  Camp.  60 ; 
Mitans  V.  Henderson,  1  Kust,  335;  Knatch- 
b\ill  V.  Hallett,  13  Ch.  Div.  708;  Ex  parte 
Kingston,  L.  R.  6  Ch.  632;  Ex  parte  Cook, 
4  Ch.  Div.  123;  Taylor  r.  Plumer,  3  M.  & 
8.  562;  UodtVey  v.  Furzo,  3  1'.  Wnw.  185; 
Thomiwou  V.  Giles,  2  IJ.  &  C.  422  ;  Frith 
V.  Ciirtliind,  2  H.  k  M.  417  ;  In  re  Hal- 
lett's  Estate,  13  Cli.  Div.  696,  707. 

As  we  huvi'  intimated  ante,  Hook  II., 
P.irt    I.    (and     •u   also  ante.   Book    11., 
I'll  ♦  111.,  §  3,   p.  ISi),  n.  2),  the  terras 
votd  itnd  voidable  liave  in  numerous  cases, 
particularly  with  referonct!  to  the  contracts 
(it  iiii'ants,  been  used  with  much  carelegj- 
iiess,  the  term  void  often  being  iniprojicrly 
employed  where  voidabfc  is  really  meant. 
This  looseness  of  expression   has  led  to 
much  discussion  as  to  what  contracts  of 
inlnnts  are  absolutely  void  and  what  are 
only  voidable ;  and  in  some  of  the  cases 
there  is  much  refining  and  not  less  confu- 
sion in  connection  with  tlu'se  terms.    It 
is  now  scarcely  at  all  contended  that  any 
contracts  of  infants  are  absolutely  void. 
Where  they  are  not  binding  on  the  infant 
they  are   voidable  at  his  election  ;    and 
wliilp  the  plea  of  infancy  is  a  good  defence 
fortlie  infant,  it  obviously  is  no  defence  at 
all  for  the  adult  who  has  contracted  with 
the  infant.     Nor  <'an  the  adult  derive  any 
henetit  from  the  fact  that,  as  being  bind- 
ing on  the  one  at  the  election  of  the  other, 
there  is  no  mutuality,  and,  therefore,  no 
contract.    There  is  no  mutually  binding 
contract  until  the  election  has  been  made 
by  the  party  entitled  to  make  it,  ond  then 
there  is  not  only  the  mutuality,  but  the 
power  to  avoid  the  contract  is  gone  ;  and 
while  it  was  never  absolutely  void  it  has 
ceased  to  hv.  voidable.     The  same  princi- 
ple applies  to  contracts  which   may  be 
avoiilcii  for  frau<l,  or  for  what  is  akin  to 
fraud,  where  the  parties  buying  and  sell- 
ing arc  in  a  fiduciary  relationship  with 
those  to  whom  they  sell  or  from  whom 
they  buy. 

In  Michod  v.  Oirod,  4  How.  503,  which 
was  a  case  where  proceedings  were  taken 
to  set  aside  and  annul  the  purchases  of 
executors  who  had  purchased  the  entire 
estate  of  their  testator,  and  where  the 
executors  claimed  that  the  purchase  was 
rightfully  made,  without  fraud  in  fact  or 
in  intention,  at  a  fair  price  at  public  auc- 
tion, the  United  States  Supreme  Court  — 
Wayne,  J. ,  delivering  the  judgment  —  in- 
yolve  themselves  in  much  confusion  by  the 
improper  use  of  the  term  vfu'd,  using  the 
terra  in  the  sense  of  the  act  having  been 
absolutely  void,  instead  of  being  only  void- 
able at  the  election  of  the  injured  party. 
The  same  term  void  is  often  used  in  other 
instances  in  statutes  and  Judicial  decisions 
*here  the  meaning  is  not  intended  to  be 
tbeolutely  void,  bnt  merely  that  It  may  be 


avoided,  — -  voidable.    A  familiar  instance 
of  this  is  in  connection  with  voluntary  con- 
veyances under  the  statute  of  Elizabeth, 
where,  as  against  creditors,  the  convey- 
ance is  8|)oken  of  as   "  fraudulent  and 
void,"  meaning  merely  that  it  is  voidable 
within  delined  limits,  and  within  those 
limits,  being  deemed  fraudulent,  may  be 
set  asi''o.     The  confusion  in  Michod  v. 
Oirod  is  painfully  obvious.    The  follow- 
ing is  a  sample  of  the  language  :  "  The 
piirc/iaae  is  void,  and  will  be  set  aside  at 
the  instance  of  the  cestui  que  trust,  and  a 
resale  ordere<l  on  the  ground  of  the  temp- 
tation to  abuse,  and  of  the  danger  of  im- 
position inaccessible  to  the  eye  of  the 
court."    //'(■'/.  at  p.  657.     If  the  purchase 
will  *'onl\    le  set  aside  at  the  instance  of 
the  cestui  que  trust "  th',n  it  is  palpably 
absurd  to  call  the  purchase  void,  using 
that  term  expressly  in  distinction  to  the 
term   voidable,  when   the   very   language 
thi-y  use  shows,  in  effect,  that  the  pur- 
ohase  was  not   void,   but   voidoble   only 
"  at  the  instance  of  the  cestui  que  trust. 
An<l  with  added  confusion  they  go  on  to 
say  :   "  We  are  aware  that  cas(;s  may  be 
found  in  the  reports  of  some  of  the  chan- 
cery courts  in  the  United  States,  in  which 
it  has  b<>en  held  that  an  executor  may  pur- 
chase, if  it  be  without  fraud,  any  property 
of  his  testator  at  open  and  public  sale  for 
a  fair  price,  and  t/uit  such  purchase  is  only 
voidable,  and  not  void,  as  we  hold  it  to  be." 
They  then  ad'  :   "But  with  oil  due  re- 
spect for  the  liarned  judges  who  have  so 
decided,  we  say  that  an  executor  or  ad- 
ministrator is  in  equity  a  trustfe  for  the 
next  of  kin,  legatees,  nnd  creil  tors,  and 
that  we  have  been  unable  to  find  any  one 
well-considered  decision,  with  other  cases, 
or  any  one  case  in  the  books,  to  sustain 
the  right  of  an  executor  to  lieconie  the 
purchaser  of  the  proin-rty  \vhi<h  he  repre- 
sents or  any  portion  of  it,  though  he  has 
done  so  for  a  fair  price,  without  fraud,  at 
a  public  sole."    And  yet  with  singular  in- 
consistency they  cite  os  a  "well-consid- 
ered decision  "  the  cn.se  of  McCarty  v.  The 
Steam  Cotton  Press  Co.,  5  La.  16,  where 
"  the  property  was  sold  at  auction,  and 
the  mother  of  the  minor  became  the  pur- 
chaser.    It  was  contended  that  this  pur- 
chase  was   null   and   void,   because    the 
property  had  des(!ended  to  the  children 
immediately  after  the  death  of  the  father  ; 
and  the  mother,  who  by  the  effect  of  the 
law  was  their  natural  tutor,  could  not  buy 
it.     The  court  said  it  was  a  general  rule. 
[This  still  further  shows  the  confusion  of 
the  courts  in  the  matter.  ]    But  it  having 
been  shown  that  the  mother  ami  purchaser 
had  petitioned  the  court  of  probate  for  a 
ratification  of  the  sale,  and  tnat  the  court 
had  ratified  it  upon  the  advice  of  a  family 
meeting,  the  tale  was  amfirmed."    Tbo 


•■imn] 


tl 


iU^ 


i  ^' 


An 


464 


COMMENTARIES  ON  SALES. 


[book  II. 


■ale  waa  "ratiflod"  and  "conflrmed." 
This  shows  clearly  that  the  sale  was  not, 
ab  initio,  or  /ler  »e,  void,  but  Himpl^  void- 
able, and  wiiH  oiK-ii  to  be  either  avoided  or 
"ttet  n8ide  at  the  iiiHtaiiue  of  the  ctatui  que 
trust,"  or,  at  the  huiiiu  iiiDtiuice,  or  with  the 
■amd  rei|ii(!Ht,  be  rutiliud  and  contirniL-d. 
And  in  the  prinuipid  case  itiielf,  where 
"  the  chancery  courts  in  the  United 
States"  are  condcnincd  for  holding  that 
■uch  purchiiMeM  are  nut  void  per  se,  but  are 
merely  voidable,  the  court  itself  hIiows  that 
why  "the  recfiiitMoraiMiuittuncettjjivcn  by 
two  of  the  conipliiiniiats  to  the  executors  ' 
(at  p.  661)  dill  not  in  elfect  amount  to  a 
ratification  of  the  merely  voidable  purchase 
by  the  executors,  waa  Imcause  their  "  re- 
ceipts or  acquittances  .  .  .  were  obviously 
given  without  full  knowledKo  of  all  the 
circumstances  connected  with  the  disposal 
and  management  of  the  estate  ; "  informa- 
tion and  vouchers  bfin;;  withheld  by  the 
executors,  who  indul;;iMl  in  "menaces  of 
displeasure  mingled  with  intimations  of 
future  kimlnesa."  Ergo,  in  a  reverse  state 
of  ulfairs,  the  receipts  or  acquittances  wouM 
have  amounted  to  an  allirmation  of  tie 
VoULihle  purchase,  and,  thereafter,  it  could 
not  even  be  rendered  void.  Just  as,  as  is 
shown  ill  the  case  itself,  where  there  is  no 
iiiadeipiAuy  of  price,  and  no  int!i[uality 
in  the  liargain,  and  no  fraud  or  conceal- 
ment, and  no  adviinta^e  taken  by  the 
trustee  of  information  ac<iuired  by  him  as 
trustee,  a  purchase  by  a  trustee  of  his 
cestui  que  trust,  sui  jurU,  provided  it  is 
deliberately  agreed  or  understood  between 
them  that  the  relation  shall  be  considered 
as  dissolved,  "  and  there  is  a  clear  con- 
tract, ascertained  to  bo  such  after  a  jeal- 
ous and  scrupulous  examination  of  all  the 
circumstances,  and  it  is  clear  that  the 
eedui  que  trust  intended  that  t..j  trustee 
should  buy,  will  be  sustained  in  a  court 
of  equity.  Coles  v.  Trecothick,  9  Ves. 
246 ;  Fox  v.  Mackreth,  2  Hro.  Ch.  400 ; 
Gibson  v.  Jeyes,  6  Ves.  277;  Whichcote  v. 
Lawrence,  3  Ves.  740;  Camp'  U  .  Walker, 
fi  Ves.  678;  Aylilfe  v.  Murray,  2  Atk.  59. 
And  it  is  ({uite  safe  to  say  that  where  a 
trustee  ivho  is  sui  juris  has  purchased  the 
property  of  bis  cestui  que  trust,  to  the 
manifest  advanta<;e  of  the  latter,  no  one 
well-considered  decision  can  be  found 
where  such  a  mere  voiilihle  purchase  has 
been  set  aside  or  rendered  void  at  the 
instance  of  the  trustee,  as  regards  whom 
such  a  purchase  is  not  even  voidable, 
much  less  void.  The  rule  may  be  cor- 
rectly stated  that  the  purchase  is  voidable, 
and  not  absolutely  void,  and  may  be  set 
aside  at  the  instance  of  the  cestui  que  trust, 
or  may  be  ratiRed  and  afHrmed  by  him  at 
his  election,  properly  and  intelligently  ex- 
ercised. 

In  »  ease  which  we  hare  already  ex- 


amined in  this  Part  (Ex  parte  Lacey,  6 
Ves.  &iU),  Lord  KIdon  clearly  lays  ilown 
the  rule  that  the  trustee  may  contruct 
with  the  cestui  que  trust,  where  the  nslui 
que  trust,  by  a  new  contract,  ilismlHN'il 
the  trustee  from  that  character,  and  \>iiile 
the  court  watches  the  proeeediiigs  with 
great  jealousy,  "  //  is  in  the  choice  nf  tki 
ccaluis  que  trust,  whether  Iheij  will  luki  buck 
the  firopertj/  nr  not ;  if  the!  trustee  jms 
made  no  advantii}{e. '  In  Wliel|Htule  i>, 
Cookson,  1  Ves.  .Ir.  U  ;  5  V.s.  682,  wli.re 
a  bill  was  tiled  by  a  creditor  iigainst  tlie 
defendants  as  execiitois  and  trustees,  to 
set  usiile  a  purclnisc  by  the  trustees,  at 

iiublic  auction,  of  tlic  trust  pro|H'i'ty ; 
iord  Mardwiiki?  ordered  the  credildrs  to 
elect  u'hHiicr  they  would  abide  by  the  fmr- 
chase.  The  court  further  ordered  ihiit  if 
the  majority  (»f  tliein  elected  not  to  abide 
by  the  purchase,  then  the  property  was  to 
be  put  up  again,  and  sold  befort!  the  iiiai*- 
ter ;  but  if  tht!  majority  elected  to  alijiie 
by  the  purchase,  the  trustee  was  to  ac- 
count for  the  iiincliase-monoy  with  inter- 
est. Lord  Kliloii,  in  Ex  parte  Laeev,  6 
Ves.  625,  628,  dissented  from  this  latter 
holding,  but  only  on  the  ground  tiiat  the 
majority  of  the  ccstuis  que  trust  could  not, 
at  their  election,  bind  the  minority  ;  but, 
as  we  have  seen  by  the  language  he  him- 
self used  in  Ex  parte  Laeey,  he  was  very  far 
from  dissenting  from  Lord  Hanlwiiku in 
his  view  that  it  was  the  right  of  tii«  ccfl- 
uis  que  trust  "  to  elect  whether  they  woiiM 
abide  by  the  purchase."  In  such  case,  nf 
course,  the  sale  was  not  "void,"  but  void- 
able only,  at  the  election  of  the  cestuit 
que  trust. 

The  cases  are  very  numerous  in  which 
it  has  been  held  that,  even  whent  the  case 
has  been  lacking  in  liona  fides,  tin'  emtui 
qu«  trust,  having  knowledge  th<'re<if,  may 
acquiesce  in  the  ]iurchase  or  other  ileal- 
ing  by  the  trustee,  with  the  trust  estate ; 
and  in  ninny  cases  it  has  Iwen  luld, 
that,  with  .such  knowledge,  Inches  on  the 
part  of  the  ceshii  que  trust  will  amount 
to  ac(iuiescence.  Thus,  in  Clialiner  r. 
Rradley,  1  .Lie.  &  Walk.  5!»,  it  \vas 
held  that  application  to  imiieadi  a  .sale 
to  a  trustee  must  be  made  within  a  rea- 
sonable time.  And  in  (Ir-^gorv  i'.  •ire- 
gory.  Coop.  201  ;  8.  c.  allinin'il,  Jac. 
631,  n  bill  to  set  aside  r,  |)un'liase  by  a 
trustee  for  '.limself  and  his  cliiMn'!:,  >*ii> 
becau.se  of  a  laj>so  of  elj^hteen  years,  dis- 
missed upon  the  length  of  time  only.  In 
Campbell  v.  Walker,  5  Ves.  678,  ilie  law 
is  thus  laid  down  :  "  The  question  will 
always  be,  whether  the  cestuis  que  Irint 
have  lain  by  ;  or  whether  there  has  been 
any  ratitication.  I  will  lay  down  the  rule 
as  broad  as  this  ;  and  I  wish  trustees  to 
understand  it ;  that  any  trustee  purchas- 
ing the  trust  property  is*  liable  to  have  th« 


1>ABT   VI.] 


nDUCIARY  RELATIONS. 


466 


Lacny,  6 

ya  tlown 

uoiitruct 

till'  imtui 

lUslllisH 'll 

tint  Vi'u\k 
iij;s  with 
>ici:  iif  tlu 
I  liiki  buck 
■uhIi'i'  has 
I'11mI;i1((  I'. 
mi,  wliiTe 
j^iiiiist  the 

fllnlci'S,    to 

rusti'rs,  at 
ln-DiM'Vty ; 
•vi'ililors  (o 
'iij  //('■  ;'l^^ 
■red  that  it 
lot  to  iibiile 
erty  wii'<  to 
in;  the  iiinn- 
J  J  to  iihiik 

WHS    to  At- 

with  inter- 
ne  liiu'cy,  6 
I  thin  hitter 
nil  that  the 
st  cottM  not, 
lority  ;  hut, 
mgo  111'  him- 
WHS  very  far 
liiiilwiflce  in 
|t  of  tliu  «■'(• 
r  tlipy  wnul'l 
9\ji;h  I'.a-ie,  of 
•  hilt  void- 
tho  «s(iiu 


1« 


imnhaw  set  uide,  if,   in  any  rensonable 
tune  tlie  cestui  que  IruM  ciiouHflM  tu  Hay  lie 
i;t  not  satiiifled  with  it.     The  trtutuo  pur- 
chiM!!*,  gubject  to  thut  equity  ;  that  it  the 
(utuis  que  truat  uonie  iii  u  ivaHoiiable  tinitt, 
thvy  limy  cull  to  have  the  vntate  ruHulil. 
I  will  lay  ilown  the  rule  an  broad  an  that." 
in  ColuH  V.  Tr«eothi(:k,  l>  Ves.  U34,  L.urd 
Kiiloii  fxpro^uily   HiiJittiiiiod   tiui'li    a   piir- 
ihttso,  where  the  cestui  que  trust  had  full 
inl'iiriiiiitiun  uiid  assiMtrd  in  thu  sale.    Tho 
|iriu<:i|il<'tt  gi)Vt!riiiiii{  the  luattt-r  are  thus 
ttiiti-il.     Siiys   Luiu  Kldoii  :    "  Uiiun   the 
i|uestioii  uit  to  a  purchiMu  from  the  cestui 
ifue  !niiit,  1  uf^rve  that  the  cestui  que  trust 
may  deal  with  his  trustee,   ho   that  the 
trustee  may  lieL'oine  the  jmrohuHer  of  the 
t'jtiite.     But,  though  permitted,  it   is  a 
traiiMictiuii  of  great  delicacy,  and  which 
the  court  will  watch  with  the  utmost  dili- 
gi'iice  ;  so  much,  that  it  is  very  hazardous 
for  a  truhtee  to  engage  in  such  a  transac- 
tion. ...  A  trustee  may  buy  from  the 
ctslui  que  trust,  provided  there  is  a  dis- 
tinct and  clear  contract,  ascertained  to  be 
such  after  a  jealous  and  scrupulous  exanii- 
uatiun  of  all  the  circumstances,  providing 
the  eistiii  que  trust  intended  that  the  trus- 
tee should  buy  ;   and  there  is  no  fraud 
taken  l)y  the  trustee,  of  information  ac- 
i|uired  by  him  in  the  character  of  trus- 
tee,"    So  the  sale  by  a  trustee  of  atock 
which  a  trustee  holds  in  trust,  is  not  abso- 
lutely void,  but  voidable  only,  at  the  elec- 
tion of  the  cestui  que  trust,  who  has  the 
option  either  to  have  t)ie  stock  replaced, 
or  to  take  the  money  produced  by  tlie  sale 
with  interest.      Forrest  v.  Elwes,  4  Ves. 
497;  Piety  v.  Stace,   4  Ves.   620.     And 
if  a  trustee  niisaj)ply  the  funds  of  the 
ctstui  que  trust  and  purchase  a  judgment 
or  other  security   therewith,    the  act   is 
voidabh;  at  the  election  of  the  ccslui  que 
tnul,  who  can  elect  to  take  sui*^  judgment 
or  security,  or  require  the  tri      e  to  make 
Kooil  the    original    purchase.      Steele   v. 
nahcock,  1  Hill,  527.     So  the  master  of 
1  ship,  piiruhasing  the  ship  at  a  sale  by 
public  uiitliority,  cannot  purchase  for  him- 
self, unless  the  owner  afterwards  elects 
to  allow  him  tho  right.     Chamberlain  v. 
Harrod,  5  flreenl.  429  ;  Church  v.  Marine 
Ins.  Co.,  1  Mas.   341  ;  Barker  v.  Maine 
Ins.  Co.,  2  Mas.  369  ;  The  Schooner  Til- 
ton,  5  Mas.  462,  480.     In  Morse  v.  Royal, 
12  Ves.  a,")."),  a  purchase  by  a  trustee  from 
the  eesliii  que  trust  was  established  under 
the  circumstances  of  the  case,  where  there 
had  been  continuation  and  aci|uie8cenco. 

It  has  been  repeatedly  held  in  this 
country,  that  the  purchase  of  the  trust 
property  by  the  trustee,  vr  one  occupying 
» position  of  that  character,  is  not  abso- 
lutely void,  but  is  voidable  only  at  the 
flection  of  the  cestui  ijite  tnut.  Davoue 
«  Fanning,  2  Johns.  Ch.  252  ;  Rogers  v. 
VOL.  I.  80 


Rogers,   1   Hoplu.  615  ;    Van    Horn  v. 
Fonda,  6  Johmt.  Ch.   388  ;   Saltmarah  «. 
Beiiiie,   4  Port.   283;   Litchtield  v.   Cud- 
worth,    16    Pick.   23,   81  ;    Copeland  r. 
Merc.    Ins.  Co.,  6  I'ick.    198 ;  (i rider  v. 
Payne,  9  Dana,  190  ;  Ricliardson  f.  Jones, 
3  (iill  k  J.  163;  Iladdix  v.   iladdix,  6 
Litt.  202  ;  Davis  v.  Simjison,  6  liar.  &  J. 
147  ;  Biackenridge  v.  Holland,  2  Black. 
377  ;  Arnold  i<.  Hiown,  24  Pick.  96  ;  Da 
Caters  V.  I.e  Hov  De  Chamont,  3   Paige, 
178  ;    I'eny  i-.   Dixon,  4  Dess.  Kij.  604, 
note;  ISutler  v.  Haskell,  Ik  6,'i4  ;  Davis 
0.   Simpson,   5   liar.  &  J.   147;  Boyd  v. 
Hawkins,  2  Bat.  &  Dev.  Kij.  207  ;  Wade 
V.  Pettilmie,  11  Ohio,  C7  ;  Mills  v.  Good- 
sell,  6  Conn.   476  ;  I'nvost  v.   Gratz,  1 
Peters,  V.  C.  368  ;  Hnrriiigton  v.  Brown, 
6  Pii'k.  519  ;  Deiin  v.  Me  Knight,  6  Halst. 
685  ;   Wilson  v.  Troup,  2  Cow.   196 ;   7 
Johns.  Ch.  25  ;   Jackson  v.   Woolsey,  11 
Johns.  446  ;  Denn  v.  Wright,  2  Halst.  176. 
And  such  sale  is  capable  of  conlinimtion. 
Pievost   V.  Gratz,   1   Peters,   C.  C.   368  ; 
Jackson  r.  Woolsey,  11  Johns.  446;  Gal- 
latin V.  Cunningham,  8  Cow.  361  ;  Crowe 
V.   Itallard,   3  Hro.  C.  C.   120,  note  (c»  ; 
Gwynne  V.  Heaton,  1  Bro.  ('.  C.  3,  noto(l). 
Hut  in  all  tlicse  cases,  if  the  principal, 
after  a  full  knowledge  of  all  the  circum- 
stances, deliberately  ratifies  the  act  of  the 
trustee  or  ac(|uieHces  in  it  for  a  great  length 
of  time,  it  will  become  obligatory  upon 
him  ;  not  by  its  own  intrinsic  force,  but 
from   the  consideration   that   he  thereby 
waives  the  protection  intended  by  the  law 
for  his  own  interests,  and  deals  with  the 
trustee  as  a  person,  qwxid  hoc,  discharged 
of  his  fiduciary  character.    Hawley  v.  Cra- 
mer, 4  Cow.  717 ;  Van  Kppsv.  Van  Epns,  9 
Paige,  237  ;  Scott  v.  Davis,  2  Myl.  &  C. 
87  ;  Prevost  v.  Gratz,  1  Peters,  C.  C.  368  ; 
Fox  I'.  Mackreth,  2  Bro.  C.  C.  400,  401  ; 
Hayward  v.  Ellis,  13  Pick.  276  ;  Ball  v. 
Carew,  Ih.  28. 

Length  of  time  will  not,  however,  fur- 
ni.sh  a  ]iresuniption  of  aciiuiescence  in  such 
a  ]mi'chase,  unless  it  appears  that  tho 
cestui  que  trust  had  notice  that  the  trus- 
tee had  become  n  purchaser.  Prevo.st  v. 
Gratz,  1  Peters,  C.  C.  370  ;  Sihietlelin  v. 
Stewart,  1  Johns.  Ch.  620  ;  Quarlcs  v. 
Lacy,  4  Munf.  251  ;  Mc(Juire  v.  Mc- 
Gowan,  4  Dess.  486;  I'eny  v.  Dixon,  lb. 
504  ;  Anderson  v.  Fox,  2  Hen.  &  M.  245  ; 
Eichelberger  v.  Bariiit?:,  1  Yeates,  307  ; 
Hawley  v.  Marcius,  7  Johns.  Ch.  174  ;  Ex 
parte  Wiggins,  1  Hill,  Eq.  354  ;  Davis  v. 
Simpson,  5  Har.  &J.  147  ;  Boyd».  Hawk- 
ins, 2  Bat.  &  Dev.  Eq.  207 ;  Lazarus  v. 
Bryson,  S  Binn.  64  ;  Campbell  v.  Penn. 
Life  Ins.  Co.,  2  Whart.  53  ;  Brackenridge 
V.  Holland,  2  Blackf.  377  ;  Wade  v.  Petti- 
bone,  11  Ohio,  67 ;  Mills  v.  Goodsell,  6 
Conn.  476  ;  Lovell  v.  Briggs,  2  N.  H.  218; 
Curlier    v.    Green,    lb.   225.      And   see 


Hi-'  V' 


%i 


J 


*  i 


vM 


466 


COMMENTARIES  ON  SALES. 


[book  II. 


Ryder  v.  Bickerton,  3  Swans.  81 ;  Harden 
V.  PArsons,  1  Eden,  145  ;  Walker  v.  Hy> 
nionds,  3  Swans.  64  ;  Broadhurat  v.  Biu- 
guy,  1  Y.  &  C.  Ch.  16;  Philli|>Kon  v. 
Gatty,  7  Hare,  616  ;  affirmed  2  H.  &  Tw. 
469  ;  Munch  v.  Cockerutl,  6  Myl.  k  C. 
179 ;  Hawkint.  v.  (Jardnor,  2  Sin.  k  O. 
441  i   Farrar  v.   Barraclough,    lb.   231  ; 


Re  McKenna,  5  L  T.  k.  8.  211  ;  Far- 
rant  V.  Blanchfurd,  1  I)o  G.  J.  &  s. 
107;  Avelinu  i>.  Mellhuish,  2  De  G  J.  &S, 
288 ;  Life  Ammo,  of  Scotland  v.  Siddall, 
3  Ue  G.  F.  &  J.  68  ;  Butler  v.  Carter,  L.  U. 
6  E(i.  276 ;  Griffiths  v.  Porter,  25  iiiar. 
236 ;  Jte  Cross,  20  Ch.  Div.  1U9,  as  to 
acquiescence. 


PAOT  VII.] 


partners'  sales. 


467 


BOOK    II. 

PART  VII. 


PARTNERS'   SALES. 

1.  What  Constitutes  a  .Partnership. 

The  contract  of  partnership,  according  to  the  civil  law,  is 
nothing  otherwise  than  the  contract  of  agency.^ 

A  man  who  allows  another  to  carry  on  trade,  whether  in  his 
own  name  or  not,  to  buy  and  sell,  and  to  pay  over  all  the  profits 
to  him,  is  undoubtedly  the  principal,  and  the  person  so  employed 
is  the  agent,  and  the  principal  is  liable  for  the  agent's  contracts 
in  the  course  of  his  employment.  So,  if  two  or  more  agree  that 
tlicy  should  ostensibly  carry  on  a  trade,  and  share  the  profits  of  it, 
cacli  is  a  principal,  and  each  is  an  agent  for  the  other,  and  each  is 
bound  by  the  other's  contracts  in  carrying  on  the  tiade,  as  much 
as  a  single  principal  would  be  by  t!ie  act  of  an  agent,  who  was  to 
give  the  whole  of  the  profits  to  his  employer.  Hence  it  becomes  a 
tost  of  the  liability  of  one  for  the  contract  of  another,  that  he  is  to 
receive  the  whole  or  a  part  of  the  profits  arising  from  that  contract 
by  virtue  of  the  agreement  made  at  the  time  of  the  employment.* 

Foi  hundred  y-^ari  the  common-law  caHcs  wandered  away 
from  tlko  principles  ol  the  civii  law,  as  statiid  above,  in  reference 
to  the  test  of  a  partnership.  "  Perhaps  the  maxim  that  he  who 
pnitakcs  the  advantage  oughr  to  bear  the  loss,  often  stated  in 
the  earlier  cases  on  this  subject,  is  only  the  fonnrqnence,  not  the 
cause,  why  a  man  is  made  lial»le  as  a  partner."  '"^ 

Among  the  various  tests  in  the  old  cases,  as  to  the  existence  of 
a  partnership,  were  (1)  the  sharing  in  the  profits;  CZ)  the  ahar- 
injr  in  the  profits  as  profits,  nut  as  wages,  etc, ;  (8)  the  sViaring 
in  the  mt  rather  than  in  </ro88  profits ;  (4)  the  being  entitled  to 
an  iiccount  of  the  profits.* 


'  I'litliier  8Hy8,  —  "  CmJradus  socirta- 
ti*  niiii  M'fun  tut  enntrtief,tJt  mnnduti." 
I'lii.l.  HI..  17,  tit.  2.  liitHHluftinn.  "The 
iiiw  IS  to  iiiiitnerHhip  is  inidouliteilly  a 
liriiii.il  1)1  the  law  of  prinoiial  uml  imoiif  ; 
luiii  it  would  t«nd  to  Hiti'idify  and  mi»k« 
iv'iri'  I'UHy  of  lolutloii  tl>j  <iuv8tionB  wliicli 


Rfiso  on  tliiH  siilijpct,  if  tlii»  tnio  piineipie 
wtre  moiT  roui<tiiiitly  kept  in  view."  /Vv 
Lnrd  Weiislcvdiili',  in  Cox  v.  Hiukiimn,  8 
H.  of  L.  CA\i  2HS,  312. 

^  Cox  V.  llickiiinn,  Ihid. 

'  Cox  t'.  nickmnii,  IhiU. 

*  (irace  V.  Smith,  2  W.  Bl.  9B  ;  V'augh 


>m 


n 


i<'. 


468 


COMMENTARIES  ON  SALES. 


[book  II. 


t 


In  Ex  parte  Hamper  (aupra).  Lord  Eldon  said:  "Tlic  cases 
have  gone  farther  to  this  nicety ;  upon  a  distinction  so  thin,  that 
I  cannot  state  it  as  established  upon  due  consideration ;  that  if  a 
trader  agrees  to  pay  another  person  for  his  labor  in  the  concern 
a  sum  of  money,  even  in  proportion  to  the  profit,  ecjual  to  a  cer- 
tain shure,  that  will  not  make  him  a  partner;  but  if  he  Iuih  a 
specific  interest  in  the  profits  themselves,  iis  profits,  ho  is  a  part- 
ner." And  again :  "  it  is  clearly  settled,  thougli  1  regret  it,  that, 
if  a  man  stipulates,  that,  as  the  reward  of  his  labor,  ho  shall  •;ive, 
not  a  specific  interest  in  the  business,  but  a  given  sum  of  lUDiioy 
oven  in  proportion  to  a  given  quantum  of  the  profits,  that  will  iiut 
make  him  a  partner ;  but  if  ho  agrees  for  a  i>urt  of  the  prolit.s,  as 
such, giving  him  a  right  to  an  account,  though  haviag  no  proiKity 
in  the  capital,  he  is,  as  to  third  |>crson.s,  a  partner;  and  in  a 
question  with  third  persons  no  stipulation  can  protect  him  fruiii 
loss." » 

The  doctrines  in  these  cases  have  been  largely  acted  upon  in 
this  country.'' 

The  case  of  Cox  v.  Hickman^  brought  back  the  law  in  princi- 
ple to  where  it  started  in  the  civil  law.  That  case  has  bcu  n- 
peatedly  followed.  In  Kilshaw  v.  Jukes,*  it  was  hold,  ()i.  the 
authority  of  Co.x  v.  Wickinan,  that  the  test  whether  a  person 
is  not  an  ostensible  partner  in  a  trade,  is,  neverthel(>SH,  in  i  ... 
templation  of  law,  a  partner,  is  —  not  whether  he  is  entititd  to 
partici|)ate  in  the  profits  ;  although  this  a(Tords  cogent,  oltcn 
conclusive,  evidence  of  it  —  but  whether  the  trade  has  Imou  car 
ried  on  by  persons  acting  on  his  behalf.  There  is  this  tiiiiiir  for- 
tain,  that  if  the  test  of  partneii^hip  were  simply  as  to  fhe  riirlit 
of  sharing  in  the  profits  of  a  business,  then  not  only  would  (dx 
V.  Hickman  —  holding,  as  it  does,  that  the  creditors  of  a  cttncorn, 
the  business  of  which  was  carried  on  by  trustees,  the  profits  ol 


V.  Cnrv«r,  2  H.  Bl.  235;  Ilonre  v,  D.iwm, 
1  Doiifj.  371  ;  <"<n)|io  I'.  Kyn,  I  H.  HI.  M7; 
II(!.ski!th  r.  Hhmctmi'il,  4  Kiixt,  \\\;  Kx 
parte  Uowlandsun,  !  Hose,  l»l  j  Ex  pnvte 
lliiiii|n  r,  17  V«8.  AdX 

>  Ihid.  at  pp.  404,  ( .  J.  8(>fl  further 
Er  pnrte  LriikiIiiIo,  18  Vcn.  300;  Kx 
park-  Wiitsoii,  11>  VoH.  4()'J ;  Ex  fxirtf, 
llml«kini«)ii,  19  V.'s.  2!>1  :  fn  r.- Oolbcck, 
Hiu'k,  48  ;  AV  /mrle  l)iKl>v,  1  l)<-iir.  Ml  ; 
Tfiiih  V.  li'.lM'its  {(  Mk.I.I;  H.1  ;  WitlK-r- 
ingtuii  V.  Hi'i'iing,  3  Moo.  &.  V,  3(1  ; 
Clicik|>  V.  CriiiiiDiiil,  4  K.  &  Alil.  A(I3 ; 
Wilkiinon  V.  Fia/inr,  4  Kmii.  182;  IVrmt 
w.  Biy;iiit,  2  Y.  &('.  «1  :  Mnir  v.  Clennio, 
4  M.  &  S.  240  ;  Ikrry  i-.  N'fulmiii,  3  C.  H. 
641. 

*  See  Lootnis  v.  Murahall,  12  Cuud, 


60;  Champion  v.  Hostwick,  18  W.n.l.  ITS 
Vilnili'iilMiixh  V.  Hull,  20  Wm.l.  :■  . 
ThotiipHoti  V.  Snow,  4  (Ircciil.  2<U  ;  <'iiti''t 
V.  Winsor,  «5  I'ick.  33.'» ;  Hnilry  n.  i  l.uk, 
fl  Pi.k.  372  :  Turn.T  r.  Hi,*!!.  II  Vuk. 
103;  lUnliii  r.  Koxcroft,  (Hiri-nil.  :>•■  IW 
tholil  I'.  (Solilsniitli,  24  llow.  M>\ :  <>ili'*<in 
r.  .Stoiii',  43  lliirl).  '2st>  ;  Vonrlici's  r.  .IciP'  • 
5  Diitcli.  270  ;  SUiVftiH  V.  Faiifrt.  2t  I" 
483  ;  UoWhiiiH  v.  I.usw.'ll,  27  ll>..  :>'''. 
Faw.-itt  V.  (NlKirn,  32  III.  Ill  ;  .Mi'V  r. 
Coiiilm,  l.l  lu.i.  IW;  lU-VuMs  V.  Ilhi'. 
lit  Iii.l.  113;  iiriili>v  V.  (io.lc|itnl.  I',' M>' 
108;  AthiTton  v.  Tiltoii,  44  N.  II.  45J, 
Whitney  v.  I.iulinjjtoii.  17  Wn  IW; 
Wri)(lit  V.  rmvidrtoii,  13  Miuii.  411'. 

•  8  II.  of  L.  Ciu.  2<i8. 

«  a  U.  &  S.  847. 


lOOK  II. 

0  caHcs 
in,  that 
hat  if  a 
coucorn 

0  a  cer- 
c  hiiH  a 
i  a  part- 
it,  lliat. 

mil  jiivc, 

f    lUOllOV 

,  will  nut 
irotits,  us 
prom'rty 
aiul  in  a 
lim  from 

1  upon  in 

in  princi- 
I  bc'iu  I'L'- 
(I,  oi.  tlie 
ei'rton     i 

;rt,  in  V."" 

.iititl«'il  to 
cut,  often 

l)(«oii  ciir- 
tliiujifor- 

the  ri'.'lit 
.voultl  t'liX 

I  t'linci'in. 
profits  oi 

Is  W.n.l.  K5; 
Wrn.l.   :". 

llcy  1).  I'Urk, 
HI.  11  I'i'"- 
i.,  1.1.  T'l.  ^^'■ 

L,,.s  >'.  .i"i"-. 
i7  111.  ;it'.'. 

II  I  ;  M'"'*'  "■■ 
ll.ls  r.  lli'l". 
l.l.»r.l.  4'.'  M"' 

N.  II.  *^'^' 
\Vn.   UO; 

In.  ii'')- 


PART    VII.] 


partners'  sales. 


469 


wliich  were  to  go  to  the  creditors,  and  yet  that  tills  did  not  con- 
stitute the  creditors  partners  with  the  trustees — be  wrongly  de- 
cided, but  all  that  largo  class  of  cases  which  holds  that  clerks, 
sailors,  etc.,  who  may  be  paid  their  wages  by  a  share  of  the  gross 
or  net  profits,  would,  also,  be  wrongly  decided.  Not  only  so,  but  in 
very  many  cases,  in  which  a  mere  co-ownership  exists  in  property, 
wIhtc,  by  virtue  of  such  co-ownership  there  is  a  participation  in 
tlio  piolit  derived  from  the  hire  or  other  use  of  the  property,  it 
wonld  have  to  be  held  that  a  partnership  existed.  Jiut  it  is  (|uite 
clear  tiiat  in  a  simple  co-ownership,  while  the  co-owners  might 
have  the  right  to  divide  the  profits  gained  from  the  hire  or  other 
use  of  the  property,  this  would  not  constitute  a  partnership,  nor 
miiko  the  mere  co-owners  liable  as  partners.'  Vet,  while  the 
cu-<»tt'ne;'8hip  would  entitle  the  co-owners  to  a  share  of  the  profits 
resulting  from  the  hire  or  use  of  the  common  property,  and  still, 
;is  w(>  have  seen,  this  would  not  constitute  them  partners,  mere 
c'l-uwners,  as  such,  would  not  jjo.ssess  the  power  necessarily  and 
iii«<c|)unibly  connected  with  the  contract  of  partnershi|),  that  of 
agency,  as  !;iid  down  in  our  citation  from  Pothier,  and  as  decided 
by  Cox  V.  Ilickman  and  the  other  cas(;s  which  have  followed  it.  For 
a  mere  co-owner  simply  represents  himself  and  his  co-ownership 
of  tilt'  common  pro|M»rty,  and  he  has  no  power,  by  his  contracts,  to 
bind  liis  Co-(;wner,  or  to  exercise  as  between  them  any  powers  re- 
Miltinir  from  the  relationship  of  principal  and  agent.*'' 

Biillen  V.  Sharp ^  is  another  case  f»dlowing  Cox  v.  Hickman.* 
The  facts  were  as  follows :  S.,  being  about  to  commence  business 
M  an  underwriter  at  Lloyd's  through  the  agency  of  F.,  in  consid- 
•  ratiou  of  the  defendant  (tlie  father  of  S.),  engaging  with  F.  to 
Imid  a  sum  of  £5,000  av<  ilable  for  his  son  for  the  purpose  of 
carrying  out  the  arangement,  gave  the  defendant  the  following 
monioraiidum :  •'  In  consideration  of  your  guaranteeing  me  to  the 
oxteiil  of  X."),000  in  my  business  of  underwriter,  until  by  such 
business  1  shall  make  or  acquire  fiom  the  profits  thereof  £5,000, 


'  Kiiy  t".  .InhiiHton,  21  Brnv.  fiSfl ; 
ymrk.illmsh  r.  .SiiwyiT,  .11  Ciil.  4;i«  ;  Post 
f.  KimlHrli'v,  9  .IoIikh.  47(I  ;  IIawcs  v. 
Tilliiigliisi.  1  Cmv, 'JHU;  Hiivillo  c  U<il)- 
"Uin,  1  r.  H.  720;  llinrc  v.  Huwes, 
■'""«.  371  ;  ('.Hi|M.  V.  Kvrt',  111.  HI.  37  ; 
IWiiicH  r.  Tlic  I'liitfil  IiiH.  Co.,  2  .lohixi. 
2:H;  Fill,  kl.'  r,  .Stwey,  Scl.  Ciw.  <'h.  »  ; 
Iwid  r.  Unijj^'iiitti,  7  rush.  Irtrt  ;  llii'i-  v. 
•^"«tin,  17  MuKs.  U»7  ;  Hiiifiini  v.  Ilu/nn(, 
ISUirv.  ;'.71;  ('.ill  r.  Kuliii.  fl  H.  &  K. 
ttt;   Tiirn.T  r.   BisHj-li.   14    Pl.'k.    Ili2 ; 


Wftxh.   on    Itt-nl   Profwrty,  p. 
"Ti'imnls  ill  Comimiom,''  ntid 


'•»  .Son  2  WhkIi 

flsr>  ,t  sfij 

cnsfs  .itiii.  An.l  wr  Mt.  §S  Mil,  a'Jl  ; 
Co.  Lit.  201)  a;  Iti-lioliotli  r.  limit,  1  Tirk. 
'J'.M  ;  HriHio  v.  Met  iff,  '>  .1.  .1.  MiiihIi.  37a; 
Allfti  t'.  tiiltMon,  4  Kiiiiil.  ItlS  ;  JoIiiihoii  v. 
liiirrlH,  5  lliivw.  113;  Iliiu'N  v.  Frttiitlmm, 
27  Alu.  ILMi;  lltiKlif«)  r.  Iloiiiilav,  3 
Orofiif,  30  ;  Youii>{  •'.  Adrtiiis,  14  M.  Mon. 
127;  Williiimnon  IVwnnnI  I'roiMTtv,  2M2. 
»  JSullfM  r.  Slmiii,  18  C.  II.  N.  i-.  014, 
^rv('l^^l•cl,    on   nji|HMi!,   in    tho    Kxfli«<|Upr 


,  -, )   "JM""' 

■^'tiiiHr  M.irHlmll,  12  Conn.  fll«;  rntnnin  ChnniK'r ;    !..  II.   1  C.  P.  86;   35  L.  J 

f  ^Vi„.,  1  Hill,  231»  .  Honktth  r.  HInnfh-  C.  V   105. 

•fl,  4  K,ist,  144  ;   Mo/sy  v.  Whitney,  10         ♦  8  H.  L.  Cns.  268. 

JcliDi.  228. 


'1 


ii  \  1' 


\'iU 


i '  i 


li. 


.:fj 


470 


COUMENTABIES  ON  SALES. 


[book  11. 


PART 


after  providing  for  all  known  losses,  I  hereby  promise  and  agree 
to  pay  to  you  during  your  life,  in  case  1  shall  so  long  live,  an 
annuity  of    j£500.  being  equal  to  £10  per  cent  per  annum  on 
£5,000,  and  further,  that,  if  at  the  end  of  three  years  from  ilie 
date  hereof,  it  shall  appear  that  one  fourth  of   the  net  avoragc 
annual  profits  during  that  period  made  by  nio  in  the  said  business 
shall  amount  to  more  than  £500,  the  said  annuity  shall  tliciico- 
forth  be  increased  to  a  yearly  sum  equal  to  one  fourth  of  such 
net  average  annual  profits  made  by  me  in  tho  said  business  dur- 
ing the  said  three  years."    And  tlie  memorandum  concludod  with 
these  words  :    *'  Moreover,  in  no  case  are  you  to  be  couHidcitHl  a» 
a  partner  with  me  in  the  said  business  of  an  underwriter,"    It 
was  held,  by  the  Court  of  ('omnion   I'tcas,  and  afiirmed  on  tliis 
point  by  the  Exoheipicr  Chamber,  that  this  memorandum  did  not 
constitute  the  defendant  a  partner  with  his  son.     By  a  settlement 
afterwards  made  on  his  marriage,  S.  assigned  to  ti)e  defemlaiit 
and  one  0.,  as  trustees,  "  all  and  singular  the  sums  of  njomv, 
earningi',  profits,  and  emoluments  whieh  are  now  in  the  hamJsof 
F.,  and  all  such  as  shall  hereafter  come  into  the  hands  of  F,oii 
aceomit  or  in  respect  of  the  said  underwriting  business."    Tiie 
deed  also  contained  a  power  of  attorney,  authorizing  the  dotViul- 
ant  and  his  co-trustee  to  receive  the  whole  j)roceeds  of  the  Ixisincss; 
and  the  first  trust  was  to  pay  the  defendant  £500  a  yeai-.  wiili  an 
additional  sum  when  the  profits  of  the  business  should  liaM-  nal- 
i'/.ed  a  given  sum,  and  a  covenant  that,  when  the  aceuniulatcd 
profits  should  have  reached  tS.oOO,  ami  continued  at  that  aimmnt 
without  reduction  for  two  years,  the  trustees  should  rc-assiiru  to.*'. 
"  the  said  monie.s  and  |)rofits  arising  from  the  aforesaid  underwrit- 
ing business."     In  an  action  upon  a  polie//  nhpial  Ay  F,  in  Oif 
name  uf  A'.,  it  was  lield  by  the  K.\che(]uer  Clinmber,  Pigntt,  R, 
and  Shec,  J.,  dissenting,  t'eversing  the  judnuent  of  the  C<iiiimon 
IMeas,  that  the  marriage-scittlement  did  not,  eithtM-  alone  or  in 
conjunction  with  tiie  memoran<lum,  render  the  defendant  lialii' 
as  a  partner  with  S.  in  his  underwriting  business.' 

'  It  is  no»ii*>ii'  III  tliis  i-anr     ..it  it.  wiw  of  that  tritmiinl  is  binding,  not  only  "H 

coiiw>ili.il  ot|  all  >.i(ii'H  tliat  tiny  wci'uIjoiuhI  nil  infiiiur  tril)nnal.s  in  tliis  cuiiiitry, '>' 

by  tin- 'Ir.  isitin  lit  Cox   r.  Ilnknian,  8   II.  pvcii    on    tlial    H(>nsi>   itscll  wlnn   sii'm; 

L.  C.  '.i'lS.    Blai'liliMin,  .1..  coriwtlv  stali-d  jn-ti.iallv."     Hnllrn  v.  Siiarj".  I-   11-  1  •'■ 

Ihc  cIliM.!  (it  that  I  :is(.  llius  ;    "I'lii"  caHc  of  I*,  ut  p."l(>8.      I'inott,  B.,  onr  "f  ll"'  '*' 

Cox  I',  lii^kiiiaii  ticinn!  a  •!«'(  iKimi  of  tho  liissfntin^  judt'c  s,  also  miiil,  "  Tli-   priii'i' 

Hoii.si>   of    I.Dnls,   t'lc  oliiniatti  <',mi't    ,if  |il*  of  tlir  law  ;i)ii>liralil.'  to  ttt^  'it*'  '* 

Ap-jwnl,  ovi'irulfs  all  cailiiT  authorities  in-  sfatcii  in  (.'ox  c.  Hickman,  in  a  k"'y  rhr 

consLsti'iit  with  tli.it  'l-'i'i.sion,  anil,  so  far  jntljjint'nt  of    l^inl    Cranwortli,    'l.n' 

m  the  jnilj?niiMit  ^oes,  (i.vcs  tlii-  law  in  tJiiw  'Tho  iral  ^TonniS  of  lialuiity  (a<  .i  \«^ 

touiitry.     Wi!  iiro  not   |y)nml  liy  all  that  nfir|  i.s,  that  tlii>  trHrto  him  htuii  ■  irii...!  'H 

is  said  in  the  foursc  ol  a  )niij/ii.<'iit  of  tho  bv  |H'rsnns  mtituf  fn-  ',,-i  b<  hall  I'tiii  i"" 

HtHiw-  o(  LonU  ;    Imt  that  wl  u-h  ttptienre  bi'half  ol  tin    ,;.r^oii   siaifjlit  to  !«*  '"^''* 
to  be  >hf  rule  fstabliahwi  by  tho  deuwion  .  liablcj,  so  thtU  he  would  stand  in  tin'  f'*" 


As 


man 


•i 


tioa  of  (' 

ii.X  o.ttfcii 
Ijiiiiiiitio 

(imilr.  ■     . 

till-  |U)V  o 
pK'M'Ilt     C 

iiNiii..  hy 
li.'filioii  I 
«!  in  i)tli 

.ittili;,'   liii 

anting  for 
m  Ti„. 
'it'lfv  (Icali 
.i.asiiij,'  uii 
»i'.iiriii^  ( 
A'JiKi,  th;.. 
i>ti  aii  I  >lin 
[irofit.s,  an 
lit  |>i(»lit..i, 
|iri)lpal.lv,  ii 

"f   [Tolits  ; 

ciiiisidi'iatii 
»;is  liaicly 
wlucli  tho 
Mn.siilcrcd  i 
not  colli  lii.i- 
ami  iialiilit' 
«(io  aiiiini 
fi'iiii  uit  out 
fwi.l  lilt  won 
l«ci(  liahli! 
if  «  i«rin(.>i 
"''.■."  </i'  n-  !', 
"I  fmntituiif 
.•ioni'tatc),  « 

'"•tWl'I'll     ilin; 

'•Iti'liil  to  t),. 

^"t  <Mri'i|.,|  ,. 

'ithiT  |i|.lso!l 

■'iii'il  ill  [lar 
tvils  todi'al 
"Till,  >t,it(. 
'"*"y    ahrrci 
!"''lit,af(,./-tl| 
''"'Vioii.sly  to 

« 'ilSvlllll,.^    V 

■;'"'"iii-   t!i. 
m 

'.'""K,  .11   'i,,. 

'."  tiirryii)^/ 
''""ot'tli,.  Sl; 
^-r.»fit  „f  „„. 
•'iniili  &  ( ■„. 
'''*'.  til,'  ,|,.f, 
*''l»  till'  cartv 
"wiiics.,  n.f  111 
«»n  ha.l  i„  ,.,.r 


PART   VII.] 


PARTNERS    SALES. 


471 


As  was  stated  in  Biillen  v.  Sharp,^  the  holding  in  Cox  v.  Iliok- 
mim  '■^  is  conclusive  on  all  courts  in  England.     Jn  this  country,  as 


liot  only 


■otin 

•rv. 

I.- 

lli'H 

si! 

!'■', 

I- 

U.  1 

I', 

•  ol 

t!i.' 

!■*■> 

ri. 

)'r 

Il'l- 

t  ti- 

• ■I*    IS 

ll  V 

•■rv 

■l-ar 

ll 

il.ii 

' 

i'' 

i  a 

;itirt- 

■I'. 

irii 
liil 

|,  r.ll 

to 

'.-e 

\w)h 

\\\ 


till'  ct'l»- 


tioii  i>i  prinvipai  tDwards  tbe  jjei'sons  a<:l- 
iwf?  ostensibly  an  the  triuler.s,  by  whuin  th' 
liabilities  have  bt'eii  iiii'urred,  niul  iiiului- 
wim.-r  .aumgiiiii'iit  tliu  protits  hi»v<:  bt-eii 
iiiiiiif.'  Now.  ii|ii)lying  this  (>\|K>H\ti(>ti  of 
tin'  \\\s  of  ]inrtu"isl(i|i  to  tlm  fm;tii  of  tlu* 
pii'Miii  ciiso  1  till. I  tl.at  the  contract  ii 
ii:ailr  by  F.  ill  Siiui|),  ,lr. 's,  iiiMnc,  and  ti»c 
li!i"ition  tlicicforc  !H,  wliosc  ugcnt  was  F.  ? 
.,•  in  other  wonls,  iilth'uigh  Hinutniitly 
utiii;^  h)r  Sluirp,  Ji.,  aloitc,  was  he  r«;illy 
utiii),'  f<ir  both  the  Sharps  '.  "  Ibid.,  at  i). 
lu';  I'hc  otli\;r  di^isciitiiif;,  jmlf^o  Slice, .(., 
ntler  (Icaliiig,  It  }>,  itJ<,  with  the  question 
iiisiii;,'  under  the  luemoratKluii),  aloi.e. 
sniuiii;;  tti''  jMiynnnl  of  the  iinnuity  of 
iJDO,  th:.s :  -    "Though  lixeil  'ipparently, 


inij(ht  employ,  the  hiiMltieK*  of  the  Stanton 
Iron  Coriipmiy  for  the  lieiielit  of  tiie  crwl- 
itors  of  .'^ii'ith  &  to.  The  business  of  the 
Stanton  iron  Company,  in  Cox  i;.  Hick- 
niu-i,  was  th-!  busjni.ss  of  the  trustees,  car- 
ri.'.t  on  V>y  them  f^n  i;b).Mts  with  whioh  the 
{parties  dealing  with  tlnni  !iml  no  conenrn  ; 
the  trustees  were,  tlierefore,  held  liable  for 
its  debts.  In  this  cfise,  the  underwriting 
business  had  beconic  the  busii\e.ss  of  th.) 
defendant  and  Peimiso!!  (the  defetldant';) 
co-tnistec),  and  they,  iis  I  think,  had  Iw- 
come  liable  for  its  debts  ;  not  la'eause 
tiiey  shared  Uie  profits,  whiih  one  of  them 
did  not  share,  but  luraiifc  it  vas  their 
biisiiii'ss.  earriecl  on  !(ir  theni  with  their 
funds,  by  F. ,  as  thvir  a^rent,  in  the  name 


oil  .111  I  >tini3tii  of  tie  pndwl.le  amount  of     of  Sharp,  .Jr.,  ai  it  saliry  to  be  paid  to  F. 


(irutits,  and  to  increase  with  an  inciease 

i;l  prolits,  it  wiH  not  luct'ssarily,  or  even 

|iri)liablv,  in  the  firet  instance,  payable  out 

oi  pnilds  ;   and   rcganl  bo»nj»  liad  to  the 

loiisideraiion    for   it,    was  not  within,  or 

w:is  Iruely  within,  tln^  nnsehief  to  prevent 

will,  h  the  sharidg  of  the  profits  h.is  been 

'Oiisidered  in  many  eases  as  cogent,  ihoiigh 

not  I'otK  IiiKive,  evidenoe  of  ix  pnitnership, 

mil  liiiliility  for  its  debts.     \Vhelhe'.'  tlio 

KMi\  annuity  was  in  tact  paiii  to  the  de- 

ti-nil  lilt  out  of  the  profits  r.r  not,  the  i.lr- 

fi'ii.i  lilt  would  not  ri'hit.i  v/,-  nfidiUhiis,  liave 

!«cn  liable  for  its  de'.iis.     The  (ieiinitnin 

oi  11  p.ii'lnersliip,  —  '  l'i>iitrfiiii.:  cmmcusii- 

'tis  (ic  re  v< I  ojttrin  coininaniiMndi t  liuri 

ihfommurn;  faciiiidi  caii^a'  (I..  6-'!,  w.  t'f. 

So'ictatej,  was  not  satisiied  by  the  ri'l  itioii 

U'twi'i'Ti  liim  aiid  bis  son.     They  did  not 

'.iti!iid  to  N'  partners  ;  and  I'lie  bubiuess  was 

;!.>t  iMvrieil  on  by  the  d.'liu  lant  or  by  any 

ithiT  |MMso!i  on  his  I'eli.dl',  in  pai'nership 

riiiif  ill  partnership  '.vitb  liiin  ;  "     •  pro- 

ivilstiideal  with  the  .nhor  ipii'stioii  thus: 

"Tlii-.  .■•t.ite  of  ',liin)t;Si  howevt  r.  was  male- 

Mill!)    altereii  uiiih  r  Ihe  nuirn»jr'  s'ttle- 

'"•■at,  after  the  inarriaf,',"if  Simr|»,  .Ir.  .  .   . 

i'lTvioiisiy  to  tlie  date  of  marri.ip',  unhsf 

«:Mvssiiiiie,  vliii'li  ihiTfi  'oeias  no  j;roiinl 

f'lt  il'iiiii:,  the  whole  mheniu  lo  have  in-en 

iliiwer      i,ii    mIIusIv"  fr.im  its  in.'ption, 

'■  lit  had  no  nio'e  to  do  with  the 

.  I'y  himself  or  hif  n^jent  o(  the 

.ui'ii.g  biisirievi  •lmu(''i\  oi  \\  iieat- 

'tiiu,  111  the  ease  ol  Cii>    r.  lii.-krnan,  had 

111  ciirryiiiK  on   the    ousiness  .il    the  iiew 

lirni  lit  lii,.  Stanton  Inin  ( Onipany  for  the 

''•rrfit  .i|  the  en-dit.jrs  of  the  old  iirm  of 

Sniitli  &  i'„.     After  tl.*  dat  ■  of  the  mar 

'iiifii',  till'  defendant  bnd  ft*  nr.ieh  to  do 

»i!ti  ilie  carryinjj  on  of  the  underwriting 

l>"»i'icss  as  Die  ;ru»itepf   in  Cox  r.  Iliek« 

man  hid  iu  carryiuK vm  by  any  agent* iln-y 

»  L.  R.  i  C.  P.  at  p.  108. 


by  hiiviself  onl  ol  theii  eapitai  which  ho 
held,  or  out  of  profits  which  he  made  for 
them."  it  wiil  thus  be  seen  that  boti'  of 
the  ilissentiiif;  jud^jiH  fully  as^-'iited  to  tlie 
law  a;,  hud  down  in  ("ox  r.  Ilicknian,  and 
botii  thevidj  coni'iiiied  iu  the  fact  that 
the  old  doctrine  of  \Va\igh  v.  Carver,  2 
li.  Iilk.  TM},  tfiat  "  he  wlio  takes  a  moiety 
jf  all  the  jirolUs  indeiinitely,  shall  by 
operation  of  law,  be  H.ilile  to  losses,  if 
losses  arise,  n|io.i  the  principle  that  by 
tiking  a  part  of  ihe  [is'ilits  he  take,',  from 
the  eieditors  »,  pail  of  that  fund  which  is 
the  projier  sociirit\  te  them  lor  tlie  jwy- 
nielit  of  thi.'ir  debti,"  was  e>.|iiessly  over- 
niled.  and  is  not  law.  It  '^  also  eiiservablo 
til  it  Shee,  ,1.,  consiilered  tlie  dtieiidani  in 
Bulleii  I'.  .*>hiirp.  no  Initlur,  or  othirwise 
liable  as  a  pariuer  tliau  wa--  lii-i  co-trustee, 
DeiinisJii,  who  vis  not  to  share  the  profits 
ai  all  ;  who  was  not  made  a  party  ii  the 
-lelion,  and  r.f'ainst  uliom  no  claim  what- 
ever of  liability  hid  been  inadr;.  The 
only  ouesiioii  in  dispute  in  the  Mxidieipier 
Clianibei  was,  ji.it  as  te  wlie;!i.  r  the  do- 
leiidant's  ri^ht  to  the  prolits  Diade  him  a 
partner  with  ."*haip,  .!r.,  but  whether  F. 
Ill  carrying  on  the  business  as  agent  of 
.'^liarp,  .'r.,  was  not  also  doing  so  as 
aj,'ent  •%  the  trustees.  This  ^ji.se  difTers 
from  thut  (if  Cox  v.  liiekinan,  inasiuucli 
as  in  that  lase  the  trustees  wereearr)ing 
on  the  business,  and  it  was  noufiht  to 
make  the  creditors,  who  were  to  receive 
the  prolits,  liable  as  pariiier"  with  the 
trustees,  and  it  was  held  (bat  the  receipt 
of  the  prolits  did  not  cllll^lllute  them  part- 
ners. In  Hull"ii  I',  ."^harp,  it  was  sought 
to  make  one  of  the  InMtees  under  a  inar- 
ringe  settleinent  liable  for  the  losses,  be- 
eaie-e  it  Was  elaimed  the  business  was 
rr»liy  his,  as  well  a«  that  of  his  .son.  The 
court  in  this  caw,  m  a<l(!itiun  to  unani- 

»  8  H.  L.  c.  -m. 


\- 


472 


COMMENTABIES  ON  SALES. 


[book  II. 


mere  authoritj,  although,  on  that  ground,  entitled  to  every  respect, 
it  is,  of  course,  not  conclusive.  But,  as  regards  both  Cox  v.  Hick- 
man and  Bullcn  v.  Sharp,  so  far  as  these  cases  arc  correctly  de- 
cided and,  therefore,  so  far  as  they  are  sound  law,  they  are  as 
much  binding  on  that  ground  in  this  country,  and  in  all  other 
places  where  the  principles  of  the  common  law  govern,  as  they  are 
in  England. 

The  question  is  of  sufficient  importance,  and  has  been  involved 
in  so  much  doubt  as  to  justify  its  further  consideration.  It  i»  not, 
of  course,  claimed  that  the  doctrine  of  agency  is  alone  necessarily 
the  criterion  by  which  to  judge  in  every  case  whether  a  partner- 
ship exists  or  not,  because  the  relation  of  principal  and  agent  may 
exist  and  does  exist  in  many  cases  where  there  is  no  partnership, 
But  the  principle  is,  that  where  there  is  a  partnership  existing, 
necessarily  there  exists  between  the  parties  the  relationship  of 
principal  and  agent,  and  where  this  is  wanting,  the  relationship 
between  the  parties  is  not  that  of  partners  ;  the  general  principle 
as  to  agency  applying  to  partnership  as  well,  that  a  liability  may 
be  created  by  holding  out  another  as  an  agent,  or  by  one  holding 
himself  out  as  a  partner,  when,  in  fact,  there  was  no  agency  on 
the  one  hand  or  partnership  on  the  other. 

On  the  other  hand,  we  think  it  is  equally  as  clear  tliat  the  test 
in  Waugh  v.  Carver,'  is  not  sound  ;  that,  where  this  relationship 
of  principal  and  agent  are  wanting,  both  of  the  elements  of  being 
entitled  to  a  share  of  the  profits  and  having  to  bear  a  share  of  the 
losses,  may  be  found,  and  yet  the  contract  of  partnership  may  not 


moiisly  RHscnting  to  the  correctness  of  the 
deciHion  of  Cox  v.  Ilickinan,  lield  tliiit  tlie 
business  was  not  carried  on  by  tlio  trustees, 
but  bv  Shiirp,  .Jr.,  by  his  agent,  F.,  and 
that  ti»e  triisti'es  were  not  liiil)h!  ;  the  ilo- 
fendant,  not  any  more  than  his  co-trustee. 
Bniujwell,  \\.,  nitit  tlie  (]uestion  fairly, 
thus  ;  "  If  the  dclVndant  was  really  the 
principal,  or  one  of  the  principals,  in  the 
tniniMction;  if  those  who  really  acted  wcro 
his  MKents  ;  if,  on  the  truth  appearing,  he 
had  a  right  to  say  the  contract  was  nia<lo 
with  liini,  and  to  eidorce  it,  he  ought  to 
be  and  would  bo  liable.  As,  for  instance, 
if  there  was  a  business  which  reijuired  the 
buying  of  goods  on  credit,  and  if  a  \hst- 
8on  tried  to  I'aiTy  it  on  in  the  name  of 
an  agent,  whether  such  agency  was  an 
a{(ency  of  a  partnerslnp  or  any  other,  so 
that,  upon  the  purchase  of  gomls  by  the 
agent  or  partner,  the  property  vested 
whnHy  or  in  part  in  the  iirst-nained  p<T- 
8ML  'hen  ho  would  be,  as  it  seems  to  me, 
liaiw,  though  he  hud  stipulatc<i  with  liis 
ikgeii-r,  or  partner  that  he  ahouUl  not  b<! ; 
becaoM  he  mamid  have  tried  for  an  impos- 


sibility, for  a  thing  repugnant  in  itself, 
viz.,  that  the  contract  should  be  made 
with  him,  for  his  Ixinelit,  but  not  to  biml 
liim."  Then  on  a  full  examiniitioii  uf  th^ 
facts  —  the  liability  from  mere  parti(i]«- 
tion  in  the  profits  being  eliininatcd  fioii; 
the  case,  —  the  learned  baron  tinds  tlwt, 
as  admitted  in  the  statement  ol  l;ictsiii 
the  special  case,  "  ¥.  carried  on  tin'  under- 
writing  business  for  Sharp,  .Ir.,  until  and 
at  the  time  of  making  the  poliiv."  inid 
that  the  defendant  was  not  lialdc.  W'' 
think  there  was  no  escape  from  suili  huW- 
ing,  and  that  Iwth  Cox  v.  Hickinan,  aii ' 
Bullen  V.  Sharp,  are  sound  hiw.  We  ho 
incidentally  notice  that  Mr.  liarcn  l!rnn- 
well  riiiicules  that  distinction,  --  »i^ 
drawn  to  attenuation,  —that  Mr.  ..'iittii'" 
Story  calls  ".satisfactory,"  that  nt  tiie  tw) 
servants  of  a  firm,  the'  one  wlio  rprcivM 
a  tenth  of  the  profits  is  liable  for  it- ili'l'f, 
ond  the  other  who  receives  a  sum  i'i|'ifll '" 
a  tenth  is  not.  See  Story  on  Tartn.  §32 
et  seq. 

>  2  H.  Bl.  236. 


PART   VII.] 


partners'  sales. 


478 


exist,  either  as  between  the  parties  themselves  or  as  to  third  per- 
sons. Even  before  the  principle  that  sharing  in  the  proiits  made 
one  a  partner,  with  the  ground  on  which  it  rested,  that  that  vas 
taking  from  the  funds  to  which  the  creditors  had  a  right  to  look, 
was  refuted  in  Cox  v.  Hickman,  the  cases  were  numerous  in  which 
it  was  held  that  a  clerk  might  receive  a  share  of  the  profits  as 
wafres,  and  yet  not  be  a  partner. 

But  it  is  stated,  in  effect,  in  one  of  the  late  English  cases,  not- 
withstanding the  holding  in  Cox  v.  Hickman,  that  there  has  neen 
no  case  which  has  decided  that  where  there  has  been  a  participa- 
tion  in  both  proiits  and  losses,  that  a  partnership  has  not  existed.* 
We  think,  however,  that  this  is  wrong.  In  the  very  case  of  Cox 
(1.  Hickman,  the  creditors,  who  were  decided  by  the  House  of 
Lords,  not  to  be  partners,  while  they  were  to  participate  in  the 
profits  in  payment  of  their  claims,  would  also  have  to  bear  the 
losses  resulting  from  the  business  to  the  relative  extent  of  their 
Bcveral  claims.  It  was  this  very  fact  with  which,  in  Cox  v.  Hick- 
man, the  House  of  Lords  stood  confronted,  that  the  business  was 
to  he  carried  on  by  the  trustees  for  the  actual  profit  or  loss  of  the 
creditors,  that  forced  them  to  an  invcstigaticm  of  the  rule  in 
Wau^rh  v.  Carver,  and  to  its  overthrow.  For,  in  only  one  degree 
more  remote,  any  ordinary  creditor  of  one  carrying  on  busines-i  is 
affected  by  the  profits  and  losses  of  his  debtor  tlmn  was  the  case 
in  Cox  V.  Hickman  ;  and  had  the  creditors  in  that  case  been  held 
liable  as  partners,  because  the  business  was  carried  on  by  trustees, 
it  would  be  diOicult,  on  principle,  to  stop  short  there  ;  but,  con- 
sistently, as  the  next  step,  the  creditors  shoulti  be  held  liable  as 
partners  with  their  debtor,  where  the  business  was  carried  on  by 
himself,  as  ordinarily,  without  the  intervention  of  trustees,  and  not 
with  llicni  as  in  Cox  v.  Hiekman. 

Affiiin,  in  that  very  common  case  of  whaling  voyages,  where  the 
oflicers  and  crew  receive  tiicir  wages  by  a  certain  "  lay  "  in  pro- 
portion to  the  oil  obtained,  they  are  not  only  entitled  to  tlieir 
acrccd  simre  oi  the  gain  from  the  oil  obtained,  but  are  liable  to 
thoir  share  of  the  loss  to  the  extent  of  their  wages  —  their  contri- 
Imtioii  to  the  capital  —  if  the  fishing  should  prove  a  failure.  The 
I'  case,  too.  of  the  clerk  who  is  to  receive  his  salary  from  a  share  of 
the  proli'  •.,  is  one.  also,  where  the  clerk  shares  in  the  loss  to  the 
wtcnt  of  liiH  wages  where  the  losses  are  as  great  us  the  profits. 
'X»  mere  cf^owiiers  of  son»;  descriptictns  of  personal  property,  as 
!ivf  8t()(>k  (the  relationnhip  of  principal  and  agent  not  existing), 
niiirlit  be  mutual  Hharors  in  the  increase  and  from  the  luring 
of  the  (!ommon  property,  and  liable  relatively  also  to  the  losses 
'  See  Er  parU  Dclhasae,  7  Ch.  Div.  622,  citing  Lind.  on  I'ftrtu.,  3d  ed.  p.  19. 


i^ 


firi  hi 


t!  :   fi 


li 


•>■■  r, 


I  -r  i 


Wm 


^Mi 


w 


,    .  ,M 


^ 


;l 


474 


COMMENTARIES  ON  SALES. 


[book  n. 


resulting  from  depreciation  or  death,  and  yet  be  simply  C0H>wncrg, 
as  they  very  frequently  are,  and  not  partners. 

On  the  other  hand,  one  mi^^ht  be  a  member  of  a  firm,  with  all 
the  liabilities  as  such  as  to  third  parties,  and  yet,  as  between  them- 
selves, not  be  liable  to  a  share  of  the  losses.  And  it  would  also 
be  within  the  power  of  the  members  of  a  firm  to  agree  that,  for  a 
certain  specified  time,  one  uf  their  number  might  have  no  right  to 
a  share  in  the  profits,  and  yet,  as  between  themselves  and  ns  to 
third  parties,  still  be  a  member  of  the  lirm,  having  his  capital  in 
it,  and  having  his  rights  and  powers  as  to  the  management  of  the 
business,  with  all  his  legal  remedies  as  a  partner,  as  before  or 
after  the  limited  specified  time  in  which  ho  was  not  to  receive  a 
share  of  the  profits. > 

Since  the  case  of  Cox  v.  (lickman  was  decided,  some  confusion 
has  arisen  with  reference  to  the  principle  which  has  been  decided 
by  that  case,  which  renders  it  necessary,  for  an  accurate  statement 
of  the  law,  that  we  should  examine  it  still  further.  In  the  Iriith 
case  of  Shaw  v.  Gait,'*  O'Uricn,  J.,  after  quoting  from  the  judg- 
ments of  Lord  Wensleydale  and  Lord  Cran worth,  in  Cox  v.  Hick- 
man, says  with  reference  to  those  passages  :  "  Tlio  principle  to  be 
collected  from  them  appears  to  bo,  that  a  partnership,  even  as  to 
third  parties,  is  not  constituted  by  the  more  fact  of  two  or  lUDrc 
persons  participating  or  being  interested  in  the  net  profits  d  a 
business ;  but  that  tiio  existence  of  such  partnership  implies  ulso 
the  existence  of  such  a  relation  between  those  persons  ns  that '  each 
of  them  in  a  principal,  and  each  an  aifcntfor  the  others^'  " 

This  is  spoken  of  approvingly,  in  Holme  v.  Hammond,^  by  two  of 
the  judges  who  sat  in  the  case  of  Cox  v.  Hickman.^  One  of  llicni, 
Martin,  H.,  says :  "Lord  Wensleydale  and  Lord  Cranwortli  took 
part  in  ihe  judgment,  and  it  seems  to  me  that  the  principle  on  which 


•  As  to  whether  the  partners  nro  prin- 
cipals and  agents  or  not  is  open  to  be 
tested,  us  was  done  in  Biitlnn  i;.  Sliarp, 
not  on  tile  iissunicd  ground  tiiiit  tliity  are 
|Hirtiiors,  but  from  tiiu  facts  of  the  case 
and  the  surrounding^  cin.'uni.stiinci-s,  us  an 
nj{t'ney  would  he  proved  in  any  other  caw  ; 
the  holding  out  as  sucli,  etc.  If  sucdi  facts 
nnd  circumstances  show  the  parties  to  ho 
partners,  with  its  essential  ingredient  of 
priii<:ipal  and  af(ent,  then  they  have  the 
authority  and  ri){lits  of  partners,  and  have 
to  bear  the  liabilities  and  res|>onsibilitie8 
incident  thereto.  The  old  theory  that  one 
wos  a  partner  who  shared  the  profits  was 
simply  reasoning  in  a  circle.  If  a  partner, 
he  shared  in  the  ])rofits,  and  if  ho  8hare<l 
in  the  prolita  he  was  a  |Hirtiior,  is  no  Iwt* 
tflf  than  the  exploded  sophistry  of  the  old 
school  men  who  claimed  that  they  knew 


the  Bilde  was  true  liecauso  an  iiifilliW' 
church  said  so,  and  they  knew  tin'  rliiitrti 
was  infallible  beuauso  the  HiMc  suiil  su- 
it was  sinijily  because  of  the  uiisuii^ri'tury 
test  ill  Waugh  v.  (yurver  and  tin'  lasrt 
which  fidlowed  it  that  invnlvid  tlic  «iiiil< 
(picstion  in  the  inextricalilc  (■■inriiMon 
which  surronmled  it,  until  tlic  l.i»'  '"* 
rescued  by  Cox  i».  Ilickniaii  I'l  'in  tlif 
condition  into  which  it  had  liiii'll/'' 
llianiwell,  H.,  in  Cox  v.  Illckiiini,  L.  K 
1  C.  P.  at  |i.  l-2!i).  and  was  biniiL;!.!  I«i'ii 
again  to  the  principle  froiii  wliiili  it  livl 
started  in  the  civil  ]aw,  —  "  ('inilrnftui] 
soi'iftatin,  nnn  srni.s  nc  conlrni'hii  vii*' 
diifi."     I'and.  lib.  17,  lit.  2.  iiitr.MluctioD.  [ 

a  1(1  Ir.  C.  L.  H.  3.17.  375. 

»  I,.  U.  7  Kx.  218,  2.i0. 

«  Norn.  Hickman  v.  Cox,  18  C.  ».  «1" 


[book  II.   H        „,  „„  T 

^  ■   PART  vn.j 


co-owners, 


PARTNERS*  SALES. 


475 


their  opinion*  proceeded  is  correctly  Btated  by  O'Brien^ «/.,  in  the 
case  of  Shaw  v.  OaltJ'*  And  Uramwcll,  B.,  —  "  The  effect  of  Cox  v. 
Hlflcntan  seems  to  me  excellently  stated  by  O'Brien, «/.,  in  Shaw  v. 
QaU"  With  deference,  wo  think  quite  otherwise.  The  state- 
ment l)y  O'Brien,  J.,  is  clearly  incorrect  as  to  what  the  case  of 
t'o\  ('.  Hickman,  under  a  strictly  correct  analysis  of  it,  decides. 
And,  although  the  words  quoted  hy  O'Brien,  J.,  were  really  used 
by  liord  Wensleydale,  following  a  quotation  from  Story,  that 
"every  partner  is  an  agent  of  the  partnership,  and  his  rights, 
powers,  duties,  and  ohligations  are  in  many  respects  governed  hy 
the  same  rules  and  principles  as  those  of  an  agent;  a  partner  vir- 
tually embraces  the  character  of  l)oth  a  principal  and  agent;"' 
yet  the  case  of  Cox  v.  Hickman  does  not  decide  that  in  every 
case  of  a  partnership  each  of  the  partners  is  a  principal,  and ''  each 
an  ai/cHt  for  the  others,*  and  it  was  not  necessary  so  to  hold  in 
Cox  V.  Hickman  in  order  to  decide  that  case,  and  was  not  so 
holileii  in  and  by  that  case. 

Neither,  as  applicable  to  the  facts  in  Co.y  v.  Hickman,  does  the 
passaire  (pioted  convey  a  correct  idea  of  the  general  trend  of  tho 
reasoning  of  Lords  Wensleydale  and  Cranworth.  Thus,  by  Lord 
Craiiworth,  —  "  I  cannot  doubt  that  if  the  trade  was  carried  on  by 
thoxc  who  managed  it  as  [partners  or]  ayents  OP  TIIK  DEFKNDant, 
he  iniist  bo  just  as  liable  on  the  bills  as  he  would  have  been  in 
an  action  for  the  price  of  the  goods  supplied.  Ilis  [partners  or] 
aijintH  would  have  tho  same  authority  to  accept  bills  in  the  ordi- 
nary eourse  of  trade,  as  to  purchase  goods  on  credit." 

In  tills,  as  in  the  whole  case,  the  contention  pointed  to  is  that 
the  trustees  in  Cox  v,  Hickman  were  the  agents  of  the  creditors 
for  carrying  on  the  huxiness  for  such  creditors,  and  that  the  credi- 
tor* were  the  principals.  It  was  not  at  all  contended,  nor  was  it 
nccossary  that,  for  the  purposes  of  the  case,  it  should  have  been, 
that  the  creditors  were  tho  agents  of  tho  trustees,  on  the  ground 
that,  in  every  partnership  "  eaeh  "  of  the  partners  must  necessa- 
rily 1)0  "a  princi|)al  and  each  an  agent  for  tho  other,"  What 
the  case  really  holds  is  very  aeeuratdy  covered  by  tho  following 
strietly  sound  statement  of  the  law  by  Lord  Cranworth:  "Would 
the  ereditors  have  become  partners  in  tiie  concern  carried  on  by 
tho  trustees  merely  because  they  passively  assented  to  its  being 
carri((l  on  upon  the  terms  that  the  net  income,  i.  e.  tho  net  profits, 
should  1)0  applied  in  discharge  of  their  demands  ?  I  think  not.  It 
was  arL'ucd  that  as  they  would  bo  interested  in  tho  profits,  there- 
fore tliey  would  bo  partners.  But  this  is  a  fallacy.  It  is  often 
said  that  tho  test,  or  one  of  tho  tests,  whether  a  i)cr8on  not  osten- 

>  Story  on  Partnership,  S  1. 


i    ;!i' 


H 


i  ■ 


.  I 


\M 


%§] 


li  I 


I 


476 


COMMENTARIES  ON  SALES. 


[book  II. 


sibly  a  partner,  in  nevertheless,  in  contemplation  of  law,  a  partner, 
is,  whether  he  is  entitled  to  participate  in  the  prulits.  Thin,  nu 
doubt,  is,  in  (general,  a  sufficiently  a<;curate  test ;  for  a  ri^ht  to  par- 
ticipate in  profits  affords  cogent,  often  conclusive  evidence,  tliitt  the 
trade  was  carried  on  in  part  for,  or  on  behalf  of  the.  person  m-tling 
up  such  a  claim,  lint  the  real  ground  of  the  liability  is,  that  the 
trade  ha»  been  carried  on  bif  persona  actinu  on  his  brhalf.  Wliin 
that  is  the  case,  he  is  liable  to  the  trade  ubiigutions,  and  cutitlid 
to  its  profits,  or  to  a  share  of  them.  It  is  not  strictly  conoct  to 
say  that  his  right  to  share  in  the  profits  makes  him  liiil)lo  to  the 
debts  of  the  trade.  2^he  correct  mode  of  statimj  the  propositian  t'l 
to  say  that  the  same  thing  which  entitles  him  to  the  one  mafcru  him 
liable  to  the  other,  namelif,  the  fact  that  the  trade  has  been  cnrrml 
on  on  his  behalf,  i.  e.,  that  he  stood  in  the  relation  of  principal 
towards  the  persons  acting  ostensibly  as  the  traders,  by  whom  th( 
liabilities  have  been  incurred,  and  under  whose  management  the 
profits  have  been  made." 

This,  Lord  Cranworth  states,  and  most  correctly  so,  as  the 
ground  of  the  liability  of  a  partner,  and  this  is  the  one  principle 
decided  by  Cox  v.  Hickman  ;  which  case  is  far  frum  huKiin>;  tlie 
proposition  stated  in  effect  by  O'Hricn,  J.,  that  in  order  to  consti- 
tute a  partnership,  there  must,  in  every  case,  and  necessarily,  exist 
between  the  [larties  that  relation  that  '^  each  of  them  is  a  princi- 
pal and  each  an  agent  for  the  others.'^  This  latter  proi)()sitioii, 
although  generally  true,  which  is  about  all  that  was  intcndoil  Ui 
be  implied  by  Lords  VVensleydalo  and  Cranworth,  and  by  Story,  is 
not  invariably  true,  without  exception,  and  is  not  held  to  bo  su  by 
Cox  V.  Hickman,  or  by  any  other  well-decided  case  which  has  fol- 
lowed that  case.^ 

of  the  others.  Partners  may  stipulate 
uiiioiig  thcmsolvps  that  suiiie  oiiu  ot  llniu 
only  shall  enter  into  jmrtioiilar  ODiitriiLts, 
or  into  any  contracts,  (»r  that  as  to  ler- 
tuin  of  their  cuntmcts  none  shall  Ih'  liuble 
except  those  by  whom  they  arc  lutimlly 
made  ;  but  witli  such  private  aiiungo- 
ments  third  persons  dealing  with  tlu'  Arm 
without  notice  UvilfwiU  notice,  mark]  Inive 
no  concern.  The  public  have  a  ri;,'lit  to 
assume  that  every  jMirtner  has  aiitiinrity 
from  his  copartner  to  bind  the  whole  linn 
in  contracts  made  according  to  tlio  onli- 
nary  usages  of  trade.  This  priiiii|ilt'  ap- 
plies not  only  to  jiersons  actiiii,'  o]ii'niy 
and  avowedly  as  partners,  but  to  others 
who,  though  not  so  acting,  are  liy  secret 
or  private  agreement  partners  with  those 
who  apiHsar  ostensibly  to  the  world  as  the 
persons  carrying  on  the  business." 

Here   clearly  is  the  implication  thst 
parties  dealing  with  a  firm  with  notice  of 


i  It  is  true  that  language  is  used  in  the 
caiie  of  Cox  v.  Hickman,  wliioh,  though 
generally  correct,  is  subject  to  an  excep- 
tion noticed  in  tiie  case,  and  which  gen- 
eral language  misled  O'Brien,  J.,  as  to  the 
at^tual  holding  in  Cox  o.  Hickman.  The 
following  is  one  such  passage,  which  con- 
tains language,  a  portion  of  which,  as  is 
clearly  implied  in  it,  is  subject  to  an  ex- 
ception. Lord  Cranworth  says  :  "  The 
liability  of  one  partner  for  the  acts  of  his 
conartner  is  in  truth  the  liability  of  a 
principal  for  the  acts  of  his  ogent.  Where 
two  or  more  persons  are  engaged  as  part- 
ners in  an  ordinary  trade,  each  of  them 
has  an  implied  authority  from  the  others 
tn  bind  all  by  contracts  entered  into  ac- 
cording to  the  usual  course  of  business  in 
that  trade.  Every  partner  in  trade  is,  for 
the  ordinary  purposes  of  the  trade,  the 
agent  of  his  copartners,  and  all  are  there- 
fore liable  for  the  ordinary  trade  contracts 


PAUT  VII.] 


PARTNERS*   SALES. 


477 


stiimlate 

llIU   lit'  llllMU 

•  cDiitriicts, 
as  to  oer- 
:  Ik-  liulile 
iictuiilly 
nrningi- 
th  till'  tirni 
iiiaiklliavc 
u  ri;;lit  to 
iiutlmrity 
wlidlc  linn 
till'  onli- 
lini'i|ili'  aw- 

liner    (l|ll'nly 

to  others 
liy  secret 
Iwit'h  those 
lorltl  as  the 

liition  th«t 
notice  of 


Kilsliaw  V.  Jiikos  '  is  but  a  reiteration  of  tlio  law  in  Cox  v.  Ilick- 
mau  uiid  Bullou  v.  Sharp,  with  tho  additiuual  feature  that,  in  this 

tract  uf  ugcnry.  And  evoii  auconliiig  to 
tilts  uorruot  UuciHiuii  in  C'ux  v.  llirkiiiun, 
OH  wu  hitvu  iHiinUtil  uut,  it  ii  not  iiucrHiiitry 
t<>  mIiow  agfucy  un  tittt  {Mtrt  of  him  wlidni 
it  is  mu^it  to  churp)  im  a  piii  tner  ;  all 
thut  is  nt-iuisHitry  tu  tlo  in  to  hIiow  tlntt  lie 
in  11  |iriiici|>!il,  mill  that  tliu  otluT  nii-iiilNira 
of  tliu  tiriii  arc  his  a^ttniit  to  uuriy  on  the 
buttinrss  on  his  ImjImII'. 

Not  only  iH  this  tlio  clvar,  Hiiii|ilit  nile 
o.stal)liHh(Ml  by  Cox  v.  ilickiiiiin,  luit  it  is 
a  iiotablu  fact  that  in  virtually  vvcry  caitu 
whi-ru  it  itt  Hoiij^ht  to  <-liari;«>  onu  mIio  in 
not  un  ONt<-n-<<ibl<-  |Hirtnrr  with  the  liabili- 
ti<^s  of  a  {inrtiKT,  it  in  not  on  tlu;  ground 
that  ho  huii  ai.-tud  lis  an  a^viit  of  thu  ntht-rs 
ill  tilt!  business,  '>iit  that  lit'  is  tin;  priiici- 
IHil,  and  that  the  othiM'H  havo  iirtiil  an  IiIh 
ap'iits  "  in  carrying  on  tlu;  business  in 
his  U-half."  Thus,  in  thi;  i.-aso  of  Cox  v. 
Ilickiiiaii,  L.  K.  8  II.  L.  C.  at  p.  '284. 
Lord  Kl.u:kburii,  who  had  not  a^roiHl  with 
thu  holding  that  was  arrived  at  in  that 
cast',  said  :  "  I  agree  that  the  (|uestion  is 
one  of  agency,  vi/.,  whether  the  defend- 
ants iiiithori/ed  tho  nmnagers  of  this  iirm 
to  bind  them."  And  in  Cox  v.  ilickniaii, 
8  II.  Ii.  ('.  ut  p.  310,  he  states  the  case  of 
Barry  f.  Neshani,  ;{C.  II.  ^41,  thus:  "Tho 
i|iiestioii  wiis  whether  the  defendant  was 
liable  for  giHxIs  furnished  to  one  Lowthin 
in  the  way  of  his  business  as  the  i)riiiter 
and  publisher  of  a  news|ui|K!r.  Ne.shaiu 
had  sold  tho  stock  and  gooil-will  of  tho 
|Ni|M-r  to  I»wtliin  in  consideration  of 
ill  500,  and  on  a  further  stipulation  that 
for  !M!ven  years  the  iirolits  were  to  lie  an- 
)>lied  as  follows  :  that  is  to  say,  Lowtliui 
was  to  have  the  first  i.'l.'iO  of  the  annual 
|)rolits,  then  Nesliani  »'as  to  have  them 
to  thu  exti^nt  of  jLTiUO,  if  they  made  so 
iniii'h,  and  Lowthin  was  to  have  all  be- 
yond. It  is  clear  that  I^iwthiii  was  con- 
ducting the  business  fur  the  coniinon 
biiiiefit  of  Itoth,  subject  to  tliitir  private 
arrangements  us  to  the  shares  they  should 
se|)iii'ately  be  entitled  to.  Lowthin  was, 
therefore,  clearly  the  agent  of  Nesliain." 
This,  then,  was  sullicient  to  establish  the 
pnrtner.ship ;  that  Lowthin  was  an  agent 
of  his  copartner,  Neshani,  carrying  on  the 
business  for  their  common  lienelit.  It  was 
not  deemed  necessary  to  establish  that 
Nesliam  was  also  acting  as  agent.  Ilia 
being  one  of  the  principals  was  enough. 
Tn  another  important  ca.se,  following  Cox 
V.  Hickman,  Bullen  v.  Sharp,  L.  Ii.  1  C. 
P.  86,  it  was  not  for  a  moment  contended 
that  the  elder  Sharp  was  the  agent  of  the 
younger,  but  rather  that  the  younger 
Sharp,  who  signed  the  policy  in  question 

S.  847. 


thoie  private  arrangeniuiits  aro  atfocted  by 
thiiii,  and  the  general  tenor  of  l.ord  Craii- 
wurlli'x  jiidgmuiit  shows  clearly  thut  thu 
whoii,'  |iaragrapli  we  have  ipioted  is  to  bo 
riMiil  siilijeet  tu  the  exception  to  which  by 
iniplii'iiliiiii  he  refers.     It  was  with  a  mis- 
uinli'i'stauding  of  what  ('ox  v.   Ilii^kmun 
rt'ully  liiilils  that  Cleasby,  It.,  in  llolinu  v. 
lluMiiiioiid,  L.  U.  7  Kx.  at  p.  'i'.V.i,  in  ani- 
miulvi'iiiiig  on  the  statement  of  O'Brien, 
J.,  ill  .^haw  V.  Gait,  10  ir.  C.  L.  U.  :)57. 
ml :  "  Neither  does  [lartiiurship  always 
iiiiply  this  mutual  iigeiiey.     In  the  com- 
moll  ease  oi'  a  partnership,  wheru  by  tho 
tiTiiis  of  thu  |).'irtnersliip  all  tho  citpital  is 
»u|i|ilii'd  by  A.,  and  the  business  is  to  )io 
ciuiit'd  on   by  It.  and  C.   in   their  own 
iiuiiii'-i,  it  being  a  stipulation  in  the  con- 
tract tiiat  A.  shall  not  ap|iear  in  the  busi- 
iwsa  or  interfere  in  its  inanagement,  that 
he  .shall  neither  buy  nor  sidl,  nor  draw 
uruccrpt  bills,  no  one  would  say  that,  as 
anion;;  theinsidves,  there  was  any  agency 
uf  caili  one  for  the  others."     In  reply  wo 
woiiM  (iliservo  that  Cox  v.  Hickman  holds 
iiosucli  doctrine  us  that  there  iiiu.st  be  an 
■ifi'ury  of  "eaith  one  for  tho  otliew  ; "  but 
ill  the  ease  put  thero  Would  be  the  (Hjem:i/ 
iliiit  was  sought  to  bo  established   in  Cox 
I.  Mil  kiiiaii,  of  B.  and  C.  for  A.,  without 
wIiIlIi  tlieru  would  Ih;  no  {Nirtiiership  ;  for 
to  make  A.  a  partner  with  B.  and  C.  there 
must  lie  "  thu  fact  that  the  trade  has  been 
ranii'il  on  on  his   behalf,    /.  c,    that   ho 
stMMl  ill  the  relation  of  princi}ial  towards 
tlie  jKTsoiis  acting  (wtensibly  as  tho  trad- 
ers, f)y  whom  the  liabilities  huvo  U'cn  in- 
currecl,  and  under  whose  managi^ment  the 
prulits  have  been  made."     Per  Lord  Cran- 
worth,  in  Cox  V.  llickniun,  8  11.  L.  C.  306. 
But  Cleasby,  B.,  seeing  that  ho  has  stated 
the  case  too  broadly,  added  :  "  If,  indeed, 
niiide  (loi'iintiit  partner  were  known  to  bo 
>  luirtnir,  and  tlio  limitation  of  his  au- 
thority were  not  known,  he  might  be  able 
to  draw  Kills  and  give  orders  for  goods 
*hich  wonlil  bind  his  copartners  ;  but  in 
tlic  (inliiiary  case  this  would  not  bo  so, 
•ii'l  he  w  uuld  not  in  tho  slightest  degn-o 
lie  iti  till!  position  of  an  agent  for  them. 
Islmuld,  tliereforo,  hesitate  very  much  in 
•weiliiii;  to  the  id»a  that  agency  is  tho 
fwiuliitioii  of  the  idea  of  |»artnersliip." 

The  very  exception  that  a  partner  can- 
lot  lijiiil  liis  copartner  in  cases  where  his 
power  lias  iimitations,  in  contracts  with 
We  knowing  of  such  limitations,  is  of  the 
'irj-  essence  of  the  principlo  of  agency  it- 
I  *■">  ami  is  part  of  tho  law  of  partnership, 
w'caiise,  as  is  stated  in  the  civil  law,  tho 
[  Mntraci  of  partnership  is  in  effect  the  con- 

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COMMENTARIES  ON  SALES. 


[book  II. 


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case,  while  the  defendant  was  to  be  paid  out  of  the  profits,  there 
was  an  express  provision  that  he  was  to  bear  the  loss.  It  was 
here  again  held,  that  the  test,  whether  a  person  who  is  not  an  os- 
tensible partner  in  a  trade,  is,  nevertheless,  in  contemplation  of 
law,  a  partner,  is  not  whether  he  is  entitled  to  participate  in  the 
profits,  although  this  affords  cogent,  often  conclusive  evidence  of 
it ;  but  whether  the  trade  has  been  carried  on  by  persons  acting 
on  his  behalf. 

Wilson  V.  Whitehead  ^  is  another  case,  and  decided  before  Cox 
V.  Hickman,  foreshadowing  the  principle  established  by  the  lat- 
ter case.  In  Wilson  v.  Whitehead,  A.,  B.,  and  C.  agreed  that 
they  should  bring  out  and  be  jointly  interested  in  a  periodical, 
A.  was  to  be  the  publisher,  and  to  make  and  receive  general  pay- 
ment. B.  was  to  be  the  editor,  and  C.  the  printer,  and,  after  pay- 
ment of  all  expenses,  they  were  to  share  the  work  equally.  C. 
was  to  furnish  the  paper  and  charge  it  to  the  account  at  cost 
prices.  No  profits  were  ever  made,  nor  any  accounts  settled. 
The  plaintiff  furnished  paper  to  A.  for  the  purpose  of  being  used 
by  him  in  printing  the  periodical.  It  was  held  that  B.  and  C. 
were  not  liable  for  the  price  of  it.  The  ground  of  the  decision,  in 
effect,  was  the  same  as  that  which  is  established  by  Cox  v.  Hick- 
man, and  the  cases  which  have  followed  it.^ 


by  A.,  was  doing  so  as  agent  of  the  elder 
Sharp,  and  had  this  been  established  it 
would  have  been  all  that  was  necessary  to 
establish  the  nartnersliio  between  the  two 
Sharps.  Blackburn,  J.,  in  deciding  that 
there  was  no  partnership,  referring  to  tho 
effect  of  Cox  v.  Hickman,  well  states  the 
law  thus :  "  I  think  that  the  ratio  deci- 
dendi is  that  the  proposition  laid  down  in 
Waugh  V.  Carver,  2  H.  Bl.  235,  viz.,  that 
a  participation  in  the  profits  of  a  business 
does  of  iiself  by  operation  of  law  consti- 
tute a  partnership,  is  not  a  correct  state- 
ment of^  the  law  of  England ;  but  that  the 
true  question  is,  as  stated  by  Lord  Cran- 
worth,  whether  the  trade  is  carried  on  on 
behalf  of  tfie  person  sought  to  be  charged  as 
a  partner,  the  participation  in  the  profits 
being  a  most  important  element  in  deter- 
mining that  que.stion,  but  not  beihg  in 
itself  decisive,  the  test  being,  in  the  lan- 
guage of  Lord  W'ensleydale,  whether  it  is 
such  a  participation  of  profits  as  to  con- 
stitute the  relation  of  principal  and  agent 
between  the  person  taking  the  profits  and 
those  carrying  on  the  business." 

Bramwell,  B.,  in  the  same  case  also 
says,  —  BuUen  v.  Sharp,  L.  R.  1  C.  P.  at 
p.  127, —  "  Cox  V.  Hickman  has  settled  the 
law,  I  may  be  permitted,  I  hope,  to  say, 
in  a  perfectly  satisfactory  manner.  It  is 
there  laid  down  that  ibo  question  in  such 


cases  as  the  present  is  one  of  authority, 
one  of  agency.  Lord  Campbell  says: 
'The  defendants  can  only  be  uable  upon 
the  supposition  that  the  person  who  wrote 
the  acceptance  on  the  bills  of  exchange 
was  their  mandatary  for  that  purpose.' 
Lord  Wensleydale  says :  '  And  the  simple 
question  will  be  this,  whether  Haywood 
was  authorized  by  either  of  the  ddViulants 
as  a  partner  in  that  company  to  bind  him 
by  those  acceptances.'  Bramwell,  B., 
then  says;  "The  question  here  is,  Was 
the  underwriter' .s  business  carried  on  by 
persons  acting  on  the  defendant's  hclialf! 
Now,  it  certainly  was  not.  The  clerk  who 
signed  the  policy,  and  the  son,  aeted  on 
the  son's  behalf."  And  the  decision  of 
the  court  below  that  the  defendant  was 
liable  as  a  partner  was  reversed. 

1  10  M.  &  W.  503. 

2  Parke,  B. ,  with  whom  all  the  others 
concurred,  said  :  "  The  question  's  diJ 
the  other  defendant  authorize  Whitohea.l 
to  purchase  the  paper  on  their  account,  or 
on  his  own  ?  It  appears  to  me,  on  the 
true  construction  of  tne  contract,  that  the 
latter  was  the  case."  In  other  words,  C. 
was  not  the  agent  of  A.  and  B.,  to  Nnd 
them  as  principals,  the  purchase  of  the 
paper  being  made  on  his  own  account, 
and  not  on  their  behalf.  See,  also, 
Nicholson  v.  Bicketts,  2  £1.  &  1^1-  ^^7, 


[book  II. 

refits,  there 
»88.  It  was 
3  not  an  os- 
mplation  of 
pate  in  the 
evidence  of 
■sons  acting 

,  before  Cox 
I  by  the  lat- 
agreed  that 
a  periodical, 
general  pay- 
d,  after  pay- 
equally.    C. 
ount  at  cost 
unts  settled. 
f  being  used 
at  B.  and  C. 
e  decision,  in 
Cox  V.  Hick- 


ane  of  authority, 
CampbfU  says; 
ly  be  liable  uiMU 
person  who  wrote 
Dilla  of  exchange 
)r  that  purpose.' 
'  And  the  simple 
■hether  Haywood 
of  the  di'tViKlanU 
mny  to  biml  him 
BramwcU,  B., 
ion  here  n,  Was 
!S3  carried  on  by 
fendant's  l"'lialf! 
.    The  cliTk  who 
he  son,  acted  on 
the  deeision  of 
,e  defendant  was 
yersed. 

)m  all  tliP  others 
question  'S  did 
lorize  Wliitehead 
their  accouut,  or 
9  to  me,  on  the 
lontract,  that  tk 
1  other  words,  C. 
landB.,  to  hind 
Ipurchase  of  IM 
lis  own  account, 
Hftlf.  See.  alM. 
1  El.  &  Kl.  497, 


PART  VII.] 


partners'  sales. 


479 


The  principle  of  Cox  v.  Hickman  was  applied  to  an  assur- 
ance society  in  Re  English  and  Irish  Church  and  University 
Society,^  where  it  was  sought  to  hold  policy-holders  liable  as  part- 
ners for  the  general  liabilities  of  the  society,  because  they  partici- 
pated in  its  profit  and,  incidentally,  in  its  loss.  In  holding  that 
they  were  not  so  liable.  Wood,  V.  C.,  said :  "  The  question  for  the 
general  creditors  is  how  far  they  can  constitute  these  persons 
partners,  liable  to  them  for  the  debts  of  the  company ;  and  it  is 
material  to  inquire  how  far  the  creditors  can  be  supposed  to 
have  given  credit  to  the  policy-holders  as  members  of  the  partner- 
ship. You  have  here  a  joint-stock  company  registered  under  pro- 
visions with  which  the  assured  have  nothing  to  do,  and  empowered 
to  carry  on  the  business  upon  registration  being  properly  effected, 
with  a  list  of  members,  to  whom  and  to  whom  alone,  unquestion- 
ably, the  public,  the  creditors,  give  credit ;  and,  therefore,  there 
being  no  ground  for  inferring  an  ostensible  partnership,  all  that 
remains  is  to  determine  whether  persons  who  in  fact  gave  no 
credit  to  these  policy-holders,  can,  on  the  theory  of  dormant  part- 
nership, insist  upon  holding  them  liable  on  the  ground  of  their 

poses.  If  the  business  of  the  partnership 
be  such  as  ordinarily  requires  bills  of  ex- 
change, then,  unless  restrained  by  agree- 
ment, any  one  partner  may  draw,  accept, 
and  indorse  bills  of  exchange  in  the  name 
of  the  partnership  for  partnership  pur- 
poses. All  persons  may  give  credit  to  his 
acts  and  his  authority,  unless  they  have 
notice,  or  reason  to  believe,  that  the  thing 
done  in  the  partnership  name  is  done  for 
the  priv.ite  purposes,  or  on  the  sei>arate 
account  of  the  partner.  In  that  case,  au- 
thority by  virtue  of  the  partnership  con- 
tract ceases  ;  and  the  person  dealing  with 
the  individual  partner  is  bound  to  inquire 
and  ascertain  the  extent  of  his  authority  ; 
otherwise  ho  must  depend  on  the  right 
and  title  of  the  partner,  or  on  circum- 
stances nufficient  to  repel  the  presump 
tion  of  fraud.  These  principles  have  been 
established  by  a  long  series  of  decisions,  — 
if,  indeed,  decisions  were  at  all  required 
to  show  the  proper  application  of  the  rule 
of  law,  which  is  so  plain  and  obvious  as 
that  which  results  from  the  ordinary  law 
of  agency,  as  applied  to  partnerships." 
The  doctrine  now  established  being  that 
of  agency,  as  intimated  before  by  us  in 
this  Part,  the  doctrines  of  general  and 
special  agency  are  respectively  applicable 
to  general  and  8{)ecial  partnerships.  See, 
besides  the  previous  cases  cited  in  this 
Part,  Smith  v.  Craven,  1  Cr.  &  J.  600 ; 
Donnally  v.  Ryan,  2  Am.  Law  Reg.  n.  s. 
312 ;  Heap  v.  Dobson,  15  C.  B.  N.  8.  460. 
>  1  H.  &  M.  85. 


and  an  old  New  Brunswick  Case,  Mc- 
Pherson  v.  Haskins,  1  Kerr,  430,  where 
very  much  the  same  principle  is  acted  on. 
But  see  a  very  badly  decided  case  in  New 
Brunswick,  Jones  v.  Foster,  12  N.  B.  K.  607 
(decided  since  Cox  v.  Hickman),  where 
Ritchie,  C.  J.,  delivering  the  judgment  of 
the  whole  court,  rested  under  the  delusion, 
as  laid  down  in  the  case  of  Heyhoe  v. 
Burge,  9  C.  B.  458,  which  he  cited,  that, 
"It  has  been  decided  in  so  many  cases 
that  an  agreement  between  the  parties  to 
be  jointly  interested  in  the  profit  of  ona 
transaction  constitutes  a  partnership  and 
authoriz(;s  them  to  do  all  that  is  necessary 
to  obtain  profits,  as  usual  in  such  matters, 
that  the  rule  cannot  now  be  shaken." 
This,  of  course,  is  a  complete  fallacy. 
The  contention  of  the  defendants'  counsel 
in  the  case,  not  very  accurately  reported, 
that  where  the  agency  of  a  purchaser  of 
goods  was  strictly  limited  and  defined,  in 
an  agreement  of  partnership  for  a  single 
or  special  transaction,  as  his  position  was 
that  of  a  sjjecial  agent  merely,  he  could 
not,  as  sueli,  go  beyond  the  limits  of  the 
autiiority  that  was  conferred  upon  him,  so 
as  to  bind  his  principal  for  purchases 
not  autiiorizfd  by  the  agreement.  The 
principle  which  really  governed  Jones  v. 
Foster,  12  N.  B.  R.  607,  on  the  fe^ts  of 
that  case,  is,  as  laid  down  in  Ex  parte 
The  Darlington  and  Stockton  Banking 
Co.,  11  Jur.  N.  8.  122,  by  Lord  West- 
bury,  thus  ;  "  Generally  speaking,  a  part- 
ner has  full  authority  to  deal  with  the 
psrtnership  property  for  partnership  pur- 


■*■     I':   - 

:  If  If 

''i:[i 

ji;' 

h  !   < 


h  ■'  I  -i  I 


i     . 


1*' 


i: 


480 


COMMENTARIES  ON   SALES. 


[book  II. 


participation  in  the  profits.  On  the  principle  of  Cox  v.  Hickman 
I  must  hold  that  they  cannot,  and  that  these  policy-holders  still 
remain  creditors  no  less  than  the  holders  of  ordinary  policies." 

The  same  principle  was  acted  on  by  the  Privy  Council  i)i  MoUwo 
V.  The  Court  of  Wards,^  where  it  vas  held  that,  having  regard 
to  the  restrictions  and  modifications  made  of  late  in  the  rule 
of  law  formerly  prevailing,  that  participation  in  the  not  proceeds 
of  a  business  made  the  participant  liable  as  a  partner  to  third  par- 
ties, where  the  whole  scope  of  the  agreement  shows  that  the  pri- 
mary object  was  to  give  the  participant  security  as  a  creditor  of 
the  ostensible  partners,  contracting  to  give  him  a  participation  in 
the  net  profits  was  not  sufficient  to  make  him  liable  as  a  partner 
to  third  parties ;  the  relation  of  principal  and  agent  not  hav- 
ing been  shown  to  exist  between  the  participant  and  the  ostensi- 
ble partners.  And,  further,  where  a  man  holds  himself  out  as  a 
partner,  or  allows  others  to  do  so,  he  is  then  estopped  from  deny- 
ing the  character  he  has  assumed,  and  upon  the  faith  of  whicli 
creditors  may  be  presumed  to  have  acted.  He  is  then  held  lialjle 
as  a  partner  by  estoppel ;  or,  whenever  the  agreement  between 
parties  creates  a  relation  which  is  in  substance  a  partnership,  no 
mere  words  or  declarations  to  the  contrary  will  prevent,  as  re- 
gards third  persons,  the  consequences  flowing  from  the  real  con- 
tract. And  although  a  right  to  participate  in  the  profits  of  a 
trade  is  an  important  incident  of  a  partnership,  so  that  there  may 
be  cases  where,  from  such  participation  alone,  it  may,  as  a  pre- 
sumption, not  of  law  but  of  fact,  be  inferred ;  yet,  whether  that 
relation  does  or  does  not  exist  must  depend  on  the  real  intention 
and  contract  of  the  parties. 

The  effect  of  Cox  v.  Hickman  is  to  put  on  an  intelligible  basis 
the  old  cases,  where  clerks  who  were  to  receive  a  share  of  the 
profits  in  lieu  of  wages,  or  seamen  who  were  to  receive  a  portion 
of  the  profits  of  whaling  voyages,  were  held  not  to  be  partners. 
The  relation  in  such  cases  is  simply  that  of  master  and  servant; 
not  of  principal  and  agent.  The  case  of  Ross  v.  Parkyns,^  where 
the  plaintiff  was  to  carry  on  the  underwriting  business  in  the 
name  of  the  defendant,  and  was  to  receive  a  share  of  the  profits, 
was  decided  on  the  same  ground ;  viz.,  that  the  business  was  that 
of  the  defendant,  and  that  the  plaintiff  in  carrying  on  the  busi- 
ness was  doing  so  simply  as  the  servant,  not  as  the  agent,  of  the 
defendant,  so  as  to  constitute  a  partnership  between  them.^ 

»  L.  R.  4  P.  C.  419.  ingof  Lord  Cran worth,  in  Cox  v.  Hick; 

*  L  B.  20  Eq.  331.  man,  where  he  uses  the  term  "  on  behalf," 

•  See,  also,  a  somewhat  similar  case,  as  not  thereby  referring  to  a  mere  right  ti) 
Ex  parte  Tennant,  6  Ch.  Div.  303.  In  share  in  the  profits,  but  tliat  \w  niwint  to 
this  caae,  Cotton,  L.  J., explains  the  meau-  Hpeak  of  the  acting  of  one  partner  tor  the 


i.:  ii:" 


OE  II. 

;kman 

s  still 

es." 

^loUwo 

rejijard 

ic  rule 

•oceeds 

tvd  par- 

the  pri- 

ditor  of 

ation  in 

partner 

lot  hav- 
ostensi- 

out  as  a 

im  deny- 

jf  which 

ild  lial)le 
betweea 

irship,  no 

lit,  as  re- 
real  con- 

Diits  of  a 
icrc  may 
as  a  pre- 
ler  that 
utoution 

blc  basis 
re  of  the 
a  portion 
partners, 
servant; 
13,2  where 
ss  ill  the 
ic  profits, 
was  that 
tbe  busi- 
lit,  of  the 

1'  on  bclift'ii 
liere  right  to 

I  hi!  UU'H'.lttO 

Irtucr  lor  the 


PART   VII.] 


partners'  sales. 


481 


Moore  v.  Davis  *  was  decided  on  the   principle  to  which  we 
have  previously  referred,  that  where  the  contract  between  the  par- 
ties shows  that  it  was  the  intention  to  form  a  partnership,  and 
that  a  partnership,  in  fact,  has  been  created,  the  legal  effects  will 
follow,  even  though  they  may  have  expressly  declared  that  they 
shall  not  be  considered  partners.     There,  an  agreement  in  refer- 
ence to  a  building  speculation  upon  the  S.  estate,  bought  with  the 
money  of  A.,  provided  that  B.,  in  consideration  of  his  services  to 
enable  A.  to  realize  the  estate,  should  be  paid  one-half  of  the 
pioiits  after  A.  had  made  certain  payments ;  that  U.  should  bring 
in  a  third  of  certain  fees  which  he  might  receive  from  builders, 
and  bear  one-half  of  any  losses,  and  generally  it  was  agreed  that 
he  should  receive  and  bear  one-half  of  the  profits  and  losses  upon 
tlie  whole  transaction ;  but  the  agreement  was  not  in  any  way  to 
be  construed  into  a  partnership  between  the  parties,  and  should 
wholly  and  solely  relate  to  the  S.  estate.     B.'s  services  were  to  be 
the  consideration  for  the  agreement,  and  he  was  not  to  charge  for 
his  time  and  trouble,  but  only  for  actual  disbursements  made  by 
him  for  the  benefit  of  the  estate,  and  for  realizing  it  for  A.  and 
B.'s  mutual  benefit.    The  court  held  that  if  the  words  "  only  and 
solely  relate  to  the  above  estate  "  had  been  left  out,  there  would 
not  have  been  a  partnership,  but,  as  the  words  would  be  unmean- 
ing if  a  partnership  were  negatived  by  the  use  of  them,  the  agreo- 
ment  constituted  the  parties  a  partnership  only  and  solely  relating 
to  the  above  estate,  and  not  a  general  partnei'ship. 

In  Pawsey  v.  Armstrong,^  Kay,  J.,  held,  that  an  agreement  for 
sharing  profit  and  loss  in  certain  proportions  confers  all  the 
riglits  of  partnership  inter  se.  In  this  case,  Kay,  J.,^  states  that 
he  had  asked  for  any  authority  to  show  that  where  two  persons 
agreed  to  divide  the  profit  and  loss  of  a  business  in  certain  de- 
fined shares,  they  have  been  held  not  to  be  partners.  We  have 
already,  in  this  Part,  referred  to  various  classes  of  cases  where 
the  mere  participation  in  profits  and  in  the  bearing  of  losses, 
does  not  constitute  the  parties  partners  ;  and  now,  in  Walker  v. 
Hirsch,*  in  the  English  Court  of  Appeal  (where  Pawsey  v.  Arm- 
strong was  disapproved),  thus  presenting  another  case  in  response 
to  the  demand  of  Kay,  J.,  it  was  decided  that  although  the  plain- 
tiff was  to  receive  one-eighth  share  of  the  net  profits,  and  bear 
one-eighth  share  of  the  losses,  this  did  not,  of  itself,  constitute 
the  parties  partners  inter  se ;  but  that,  on  the  proper  consti-uc- 
tion  of  the  agreement,  the  plaintiff  was  in  the  position  of  a  ser- 

"Aer,  when  one  partner  is  the  agent  of 
we  Mrtnership,  and  the  agent,  therefore, 
I  Mhis  co-partner.     Ibid,  at  p.  317. 
'  11  Ch.  Div.  261. 


2  18  Ch.  Div.  698. 

8  At  p.  704. 

<  27  Ch.  Div.  460. 


▼OL.  I. 


81 


h  I'lr 


1  ■.  r  ■•    ., 


\.  f1  ;  H 


k\ 


i  [%\ 


i\ 


in 


ii 


k 


m 


'  r 


482 


COMMENTARIES  ON  SALES. 


[book  II, 


vant,  and  that  therefore,  he  had  not  the  right  of  a  partner,  as 
against  the  defendant,  to  an  injunction  and  receiver.' 

Part-owners  of  ships,  too,  share  in  profits  and  losses  in  definite 
proportions,  and  yet  are  not  partners  ;  the  essence  of  the  partner- 
ship relation  of  principal  and  agent  not  existing.  The  distinc- 
tion between  such  an  ownership  and  a  partnership,  in  the  conse- 
quence or  result,  is  marked ;  each  partner  being  liable  in  soUdo 
for  the  obligations  of  the  firm,  while  it  is  generally  held,  as  re- 
gards part-owners  of  ships,  that  no  such  liability  exists.^ 

The  English  Partnership  Amendment  Act. 

The  English  Partnership  Amendment  Act  of  1865,  generally 
known  as  Bovill's  Act,  which  act  we  state  in  a  note  below,^  is 


1  See  Syers  v.  Syers,  1  App.  Cas.  ]  74, 
where,  uiuler  a  ditfeient  state  of  facts,  the 
parties  were  held  to  Iw  partners. 

*  See  the  following  oases  in  which  the 
different  kinds  of  interest  are  considered. 
Graves  v.  Saweer,  T.  Rayui.  15  ;  Ex  parte 
Young,  2  Ves.  &  B.  242  ;  Ex  parte  Harri- 
son, 2  Hose,  76  ;  Owstansv.  Ogle,  13  East, 
638  ;  Helnie  v.  Smith,  7  Bing.  709 ;  Rex 
V.  Collector  of  Customs,  2  Mm.  &  S.  223  ; 
Green  v.  Briggs,  6  Hare,  395  ;  Bulkley  v. 
Barber,  6  Ex.  164  ;  Mumford  v.  Nicoll,  20 
Johns.  611;  Thorndike  v.  De  Wolf,  6 
Pick.  120 ;  French  v.  Price,  24  Pick.  13  ; 
Jackson  v.  Robinson,  3  Mas.  138  ;  Hop- 
kins V.  Forsyth,  14  Pa.  38 ;  Lamb  v. 
Durant,  12  Mass.  54  ;  Merrill  v.  Burtlett, 
6  Pick.  46  ;  Hajding  v.  Foxcroft,  6  Greenlf. 
76 ;  Patterson  i'.  Chalmers,  7  B.  Mon. 
595,  598  ;  Milburn  v.  Guyther,  8  Gill,  92  ; 
Macey  v.  De  Wolf,  3  Woodb.  &  M.  193, 
205  ;  Knox  v.  Campbell,  1  Pa.  366  ; 
Buddington  v.  Stewart,  14  Conn.  404  ; 
Revens  v.  Davis,  2  Paine,  C.  C.  202; 
Phillips  i>.  Purington,  15  Me.  425 ;  Sea- 
brook  V.  Rose,  2  Hill,  Ch.  553.  Share- 
holders in  comi)anies,  too,  participate  in 
definite  proportions  of  proHt  and  loss,  but 
their  rights  and  liabilities  are  essentially 
different  from  those  of  partners.  The  more 
thoroughly  the  question  is  examined,  the 
more  satisfactory  the  principle  laid  down 
by  Pothier  in  the  civil  law,  and  estab- 
lished  by  Cox  v.  Hickman,  8  H.  L.  C. 
2G8,  is  found  to  be. 

8  By  the  Act  of  28  &  29  Vic.  e.  86  (An 
Act  to  Amend  the  Law  of  Partnership),  it 
was  enacted  that  a  loan  of  money  by  a 
person  on  a  contract  to  receive  a  share  of 
the  protits.  or  a  contract  for  remuneration 
of  a  servant  or  agent  by  a  share  of  profits, 
or  the  receipt  of  certain  annuities  out  of 
profits,  should  not  make  those  parties,  re- 
spectively, responsible  as  partners.  In 
Holme  V.  Hammond,  L.  B.  7  Ex.  218,  223, 


it  was  claimed  that  this  act  was  a  rccoc;iii. 
tion,  that,  notwithstanding  Cox  u.  Iliik- 
man,  the  law  before  the  passage  of  the 
act  was  contrary  to  what  it  became  aftpr 
the  act  was  passed.  Kelly,  C.  B.,  con- 
sidered that  the  effect  of  the  statute  \va.s 
merely  that,  as  respects  the  protecteil 
classes,  the  sharing  in  profits  sliouM  be 
no  evidence  at  all  of  a  contract  of  part- 
nership, but,  with  regard  to  others,  it  was 
evidence,  though  insufficient  of  itsi'lf  to 
establish  the  liability.  Ibid.  227.  Brani- 
well,  B.,  says:  "It  is  asked,  if  the  dp- 
fendants  are  not  liable,  what  was  the  use 
of  the  28  &  29  Vic.  c.  86  ?  If  1  say  none, 
it  would  only  show  that  the  act  was  use- 
less. In  truth  it  was  passed  before  I'ox 
V.  Hickman  was  understood."  In  Molhro 
V.  The  Court  of  Wards,   4  Ap.  Cas.  at 

fi.  437,  the  Privy  Council  say  :  "Some re- 
iance  was  placed  on  the  statute,  'J8  &  29 
Vic.  86,  §  1,  which  enacts,  that  the  ail- 
vanco  money  to  a  firm  upon  a  contract 
that  the  lender  shall  receive  a  rate  of  in- 
terest varying  with  the  profits,  or  a  share 
of  the  profits,  shall  not,  of  itself,  consti- 
tute the  lender  a  partner,  or  riMniiT  iiini 
responsible  as  such.  It  was  avijiied,  tiiat 
this  raised  an  implication  that  tlie  lemler 
was  so  responsible  by  the  law  existiiij;  be- 
fore the  passing  of  the  act.  The  enact- 
ment is  no  doubt  entitled  to  great  weight 
as  evidence  of  the  law,  but  it  is  hy  no 
means  conclusive  ;  and  when  the  ixistinp' 
law  is  shown  to  be  different  from  that  j 
which  the  legislature  supposed  it  to  be, 
the  implication  arising  from  the  statute  j 
cannot  operate  as  a  negation  of  its  exist- 
ence." As  a  better  explanation  we  wouM 
suggest  that  the  act  is  little  more  than 
declaratory  or  an  affirmation  of  the  com- 
mon law.  The  last  clause,  provi(lin<rth«t 
the  word  "person"  in  the  act  "shall in- 
clude a  partnership  firm,  a  joint-sti>k 
company,  and  a  corporation,"  •'  ■•°"^"*' 


IS  usaally, 


[BOOK  II.    ■      p^„^  ^„^ 


partners'  sales. 


483 


little  more  than  a  declaration  or  affirmation  of  the  common  hiw. 
Hence,  it  virtually  leaves  the  question  as  to  whether  parties  are 
partners  in  business  transactions  as  it  v/as  before  the  passage  of 
the  act ;  the  act  not  changing,  to  the  slightest  extent,  the  princi- 
ples of  the  law  as  regards  the  ascertaining  whether  parlies  are 
partners  or  not.  Tiie  question  is  still  one  as  to  the  creation  of 
agency ;  as  to  whether  one  has  the  power  of  binding  another  as 
principal  in  the  alleged  partnership  transactions. 

Pooley  V.  Driver  ^  is  a  case  under  that  act,  which  decides  that 
the  first  section  of  the  act  does  not  apply  to  any  contract  unless 
the  advance  of  money  under  it  would,  independently  of  the  act, 
have  created  the  relation  of  debtor  and  creditor  as  distinguished 
from  the  relation  of  partners.  In  this  case,  Jcssel,  M.  R.,  is 
"almost  sorry"  that  the  word  "agency"  has  been  introduced 
into  the  question  of  partnership.  We  are  not  at  all  inclined  to 
share  his  regrets.  The  effect  has  been  to  establish  a  clear,  well- 
defined  rule,  instead  of  the  hazy,  shifting  views  that  were  enter- 
tained before  the  rule  was  clearly  established  by  Cox  v.  Hickman.^ 
He  says  :  "  Of  course  everybody  knovvs  that  partnership  is  a  sort 
of  agency,  but  a  very  peculiar  one.    You  cannot  grasp  the  notion 


in  similar  statutes,  so  construed  at  common 
law.    See  I'ars.  on  Partn.  93.     So,  long 
before  Cox  v.  Hickman  was  decided,   it 
was  held  in  many  cases,   covering  those 
of  clerks,  whaling-scamcn,  &e.,  that  a  con- 
tract for  the  remuneration  of  a  servant, 
engaged  in  any  trade  or  undertaking,  by 
a  share  of  the  profits  of  such   trade  or 
undertaking,   did   not,    of    itself,   render 
sufh   servant    responsible  as    a    partner 
therein,  nor  give  liim  the  rights  of   a 
partner  ;  so  the  second  section  of  the  act, 
making  a  provision  to  that  elfect,  is  clear- 
ly but  declaratory  of  the  well-known  com- 
mon-law  rule  in   the   matter.      All   the 
other  sections  of  the  act,  except  the  fifth. 
Were,  at  the  time  of  the  passage  of  the 
act,  established  as  common-law  principles. 
The  oiuy  new  provision  is  that  in  the  lifth 
section,  which  gives  the  other  creditors 
of  an  insolvent  debtor  priority  over  tiie 
sharers  in  the   profits    as    remuneration 
for  money  borrowed  by  the  debtor,  or  in 
payment  for  a  good-will  purchased  by  him. 
It  is  therefore  a  fair  presumption  that  the 
act  was    more  particularly   intended   to 
establish  the  law  as  in  the  fifth  section  ; 
the  rest  of  the  act  being  simply  estab- 
lished common-law  principles.     Professor 
Parsons  was    of  that    opinion.      In   his 
*ork  on  Partnership,  p.   93,  he    says  : 
''We  will  add  our  ho  ~,  and  our  belief, 
'hat  the  courts  of  thit.  country  will  re- 
^fil  this  statute  rather  as  declaratory  of 
M>e  law  merchant  in  respect  to  partner- 


ships, than  as  changing  that  law  ;  and 
will  apply  to  cases  which  come  before 
them  the  princiiiles  on  which  the  statute 
is  founded.  '  Of  course  these  remarks 
were  not  intended  to  be  applied  to  the 
fifth  section  of  the  act,  which  is  purely 
legislative.  Very  many  English  statutes 
have  been  enacted  in  that  way,  being 
simply  declaratory  or  an  alhrniatioii  of  the 
common  law.  Thus,  the  greater  part  of  tlio 
25  Edw.  3  is.  And  by  The  Mirror,  cap. 
1,  §  5,  and  Britton,  c.  23,  fo.  43,  the  act 
declaring  the  violations  of  the  ()ueen  reg- 
nant to  be  treason,  was  so  ;  and  so,  also, 
according  to  Biiu.ton,  The  Mirror,  Brit- 
ton, Fletii,  and  (ilanville,  was  the  Statute 
of  Treasons.  Hide,  in  his  Hist,  of  the 
Com.  Law,  9,  49,  enumerates  the  statutes 
of  Magna  Cliaita,  cnj).  29  ;  5  Edw.  3,  c. 
9  ;  25  Edw.  3,  c.  4  ;  27  Edw.  3,  c.  17, 
and  many  other  statutes  of  Hen.  3,  and 
Edw.  1  and  2,  as  having  been  "made  but 
in  affirmance  of  the  common  law ; "  and 
such  has  been  rep<!iitedly  the  case  in  later 
statutes.  So,  it  is  no  new  thing.  See, 
further,  Co.  Inst.  3d.  16  ;  Fleta,  1.  1. 
c.  22  :  .lohn  De  Brittain's  Case,  20  Ed.  1, 
n.  2;  3  Inst.  65;  lleeves'  Hist,  of  Eng.Law, 
2^5.  And  see  an  article  on  the  Origin 
and  History  of  tlie  Common  Law,  by  the 
author  of  this  work,  in  6  Am.  Law  Keg, 
N.  8.  65  et  seq. 

»  5  Ch.  Div.  458. 

3  8  H.  L.  C.  268. 


rlii: 


l^      \: 


f;f 


1-:  p 


l..\ 


I  n 


I 


,,   :  .1  .! 


'W 


'Pil 


484 


COMMENTARIES  ON   SALES. 


[book  II. 


of  agency  properly  speaking,  unless  you  grasp  the  notion  of  the 
existence  of  the  firm  as  a  separate  entity  from  the  existence 
of  the  partners  ;  a  notion  which  was  well  grasped  by  the  oUl  Ro- 
man lawyers,  and  which  was  partly  understood  in  the  courts  of 
equity  before  it  was  a  part  of  the  wliole  law  of  the  land  as  it  Is 
now.  But  when  you  get  that  idea  clearly  you  will  sec  at  once 
what  sort  of  agency  it  is.  It  is  the  one  person  acting  on  bijlialf 
of  the  firm.  lie  does  not  act  as  agent,  in  the  ordinary  sense  of 
the  word,  for  the  others,  so  as  to  bind  the  others.  He  acts  on  be- 
half of  the  firm  of  which  they  are  members  ;  and  as  he  binds  the 
firm  and  acts  on  the  part  of  the  firm,  he  is  properly  treated  as  the 
agent  of  the  firm.  If  you  cannot  grasp  the  notion  of  a  separate 
entity  for  the  firm,  then  you  are  reduced  to  this,  that  inasmuclias 
he  acts  partly  for  himself  and  partly  for  the  others,  to  the  extent 
that  he  acts  for  the  others  he  must  be  an  agent ;  and  in  that  way 
you  get  him  to  be  an  agent  for  the  other  partners,  but  only  in 
that  way,  because  you  insist  upon  ignoring  the  existence  of  the 
firm  as  a  separate  entity." 

This  is  a  refining  distinction  which  we  think  is  of  little  value. 
The  fact  whether  one,  not  an  ostensible  partner,  is  a  partner  or  not, 
is  simply  to  be  ascertained  by  inquiring  whether  the  business  which 
is  carried  on  is  carried  on  by  the  parties,  on  his  behalf  as  principal. 
—  such  relation  to  be  ascertained  by  the  facts  of  the  case  and  the 
surrounding  circumstances,  the  sharing  of  profits  being  one  ingre- 
dient, but  not  a  conclusive  one, — to  show  the  relation  of  principal 
and  agent.  In  this  case,  it  was  held  that  that  was  the  relation, 
and  that  the  relation  was  not  that  of  debtor  and  creditor.  In 
other  cases,  the  surrounding  circumstances  show  conclusively  that 
the  relation  is  not  that  of  partners ;  not  of  that  kind  of  agency 
with  profits  which  constitutes  a  partnership,  but  simply  the  rela- 
tion of  master  and  servant,  even  though  the  element  of  profits  is 
superadded.  Notwithstanding  the  refined  distinctions  of  Jossel, 
M.  R.,  it  is  obvious  that  this  really  was  his  own  view ;  ^  and  it  is 
exactly  what  the  case  itself  holds,  affirming  as  it  does  that  the 
relation  between  the  parties  was  not  tliat  of  debtor  and  creditor, 
but  of  principal  and  agent,  and  that,  therefore,  a  partnership 
existed ;  the  other  parties  carrying  on  the  business  on  behalf  ot 
the  defendant  as  a  principal  in  the  firm,  and  not  as  his  creditors. 
The  relation  of  principal  and  agent  is  to  be  ascertained  in  a  part- 
nership, with  the  factor  of  a  right  to  participate  in  the  profits  and 
a  liability  for  the  losses  superadded,  exactly  as  the  relation  of] 
principal  and  agent  has  to  be  ascertained  in  any  other  case. 

Another  case  under  the  act,  Ex  parte  Delhasse,^  holds  with  I 
1  See  Ibid.  476  at  top  of  page.  3  7  ch.  Dir.  511. 


)0K  II. 

of  the 
isteuce 
)Ul  llo- 
ui'ts  of 
as  it  is 
at  uucc 
L  behalf 
icnso  of 
:s  on  be- 
nds the 
;d  as  the 
separate 
imuch  as 
»c  extent 
that  way 
t  only  in 
ce  of  the 

X\c  value. 
icr  or  not, 
less  which 
principal, 
\o  and  the 
one  ingrc- 
principal 
relation, 
Iditor.    In 
:ively  that 
of  agency 
the  rcla- 
profits  is 
of  Jossel, 
and  it  is 
that  the 
creditor, 
lartnorship 
behalf  ot 
creditors. 
in  a  part- ' 
profits  and ' 
•elation  of  ] 
pase. 
[lolds  witli  I 

ll. 


PART  vn.] 


partners'  sales. 


486 


reference  to  the  act  precisely  the  same  doctrine  as  Pooley  v. 
Driver.*    It  was  there  held,  quite  in  accordance  with  the  general 
law  of  agency,  as  applicable  to  partnership,  that  though  an  agree- 
ment is  expressed  to  be  an  agreement  for  a  loan  to  a  partner- 
ship under  the  act,  and  contains  a  declaration  that  the  lender  shall 
not  be  a  partner,  he  will,  nevertheless,  bo  a  partner  if  the  result  of 
the  agreement,  fairly  construed  as  a  whole,  independently  of  the 
act  and  the  declaration,  is  to  give  him  the  rights  and  impose  on 
liini  the  obligations  of  a  partner.     Bacon,  C.  J.,  whose  judgment 
was  allirmcd  on  appeal,  decided  the  case  on  the  ground  that  the 
case  of  Cox  v.  Hickman^  has  er^^ablishcd  the  principle  that  the 
relation  of  principal  and  agent  must  be  made  out  before  the  dor- 
mant {)artncr,  or  the  person  lending  his  money,  can  be  held  liable 
for  the  debts  contracted  in  the  business.     James,  L.  J.,  put  the 
matter  on  a  clear,  intelligible  basis ;  thus :  "  The  loan  is  a  mere 
pretence,  the  object  being  to  enable  the  so-called  lender  to  be  not 
only  a  dormant  partner,  but  the  real  and  substantial  owner  of  the 
business, /or  whom  and  on  tvhose  behalf  it  is  to  be  carried  on,  and 
yet  to  provide  that  he  shall  not  be  liable  for  the  loss,  in  case  loss 
shall  be  incurred.     In  my  view,  it  is  the  same  thing  as  if  B.  were 
to  set  up  a  business  to  be  carried  on  by  A.,  he  being  nothing  but 
a  manager,  B.  being  the  real  principal,  although  A.  was  buying 
and  selling  everything,  and  then,  when  the  public  found  out  who 
the  principal  was  when  the  thing  came  to  an  end,  he  could  say  A. 
is  the  man  you  trusted.     I  was  the  real  principal,  but  I  am  not 
liable,  although  the  whole  thing  was  mine  from  beginning  to  end. 
The  law  of  England  does  not  allow  this  to  be  done,  and  it  appears 
to  me  that  it  equally  does  not  allow  a  man  to  escape  liability  who, 
though  he  is  not  the  entire  owner,  yet  is  the  substantial  owner  of 
a  business,  but  takes  in  two  persons  as  nominal  partners  to  carry 
on  the  business,  while  it  is  in  truth  his  business  during  the  whole 
time."    We  think  this  is  a  clear  and  accurate  view  and  exposition 
of  the  law. 

3.  Application  op  Agency  Rules  to  Partnerships. 

Tlie  principles  we  have  discussed  so  fully  in  our  notes  in  this 
Part  arc,  in  connection  with  the  contract  of  Sales,  second  only  in 
importance  to  their  connection  with  partnership  itself ;  for  the 
mass  of  partnerships  are  trading  firms,  the  business  of  which 
mainly  consists  of  buying  and  selling.  From  the  thoroughly  well 
established  rule  in  Cox  v,  Hickman,^  the  very  essence  of  a  part- 


>  5  Ch.  Div.  458. 
a  8  H.  L.  C.  268. 


»  8  H.  L.  C.  268. 


■''■  V 


8'   .If 
i) 


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i 


486 


COMMENTARIES  ON  SALES. 


[book  II. 


nership  is  the  relationsliip,  in  carrying  on  the  business,  of  princi- 
pal and  agent  between  the  parties.  Hence  it  follows  that  paitners 
being  nothing  else  than  principals  and  agents,  constituting  firms 
to  carry  on  business  for  tlieir  mutual  interest,  the  rules  of  agency 
apply  to  them  precisely  as  they  do  to  any  other  persons  occupyini; 
the  relative  positions  of  principal  and  agent.  ^Ve  know  of  no  well- 
decided  case  where  this  question  has  been  squarely  brouglit  ii|i ; 
but  the  cases  arc  numerous,  both  before  and  since  Cox  v.  llickmuu 
was  decided,  where  the  principles  are  acted  on. 

One  important  principle  is  as  to  general  and  special  agency. 
The  rule  of  agency  is  that  in  general  agency  the  principal  will  be 
bound  by  the  acts  of  his  agent  witliin  the  scope  of  the  general 
authority  conferred  on  him,  although  he  violates  by  those  acts  his 
private  instructions  and  directions,  which  are  given  to  him  by 
the  principal,  limiting,  qualifying,  suspending,  or  prohibiting  the 
exercise  of  such  authority  under  particular  circumstances.^  But, 
with  a  special  agent,  if  the  agent  exceeds  the  special  and  limited 
authority  conferred  on  him,  the  principal  is  not  bound  by  liis 
acts,  but  they  become  mere  nullities,  as  far  as  the  principal  is 
concerned,  unless,  indeed,  he  has  held  him  out  as  possessing  a 
more  enlarged  authority .^ 

So,  also,  it  is  evident,  on  principle,  that  the  same  rules  of  evi- 
dence applying  to  the  appointment  and  powers  of  an  agent  apply 
equally  as  well  to  the  creation  and  powers  of  a  partner.  The 
same  rules  apply  to  both.  Where  there  is  a  holding  out  of  one  as 
an  agent,  the  principal  is  liable ;  so,  where  there  is  the  holding 
out  of  one  as  a  partner,  the  other  is  liable  as  a  partner ;  as  a  prin- 


1  Story  on  Agency,  §  126  ;  Duke  of 
Beaufort  v.  Neeld,  12  CI.  &  F.  248,  273 ; 
Nickson  v.  Brolian,  10  Mod.  lOS) ;  Allen 
V.  "^den,  1  Wash.  C.  C.  174  ;  Bryant  v. 
Moore,  26  Me.  84;  Fitzsimnions  r.  Joslin, 
21  Vt.  129.  So,  in  a  general  partnership, 
each  partner  is  held  oat  to  the  public  as 
the  general  agent  of  the  partnership,  and 
consequently  his  acts  will  hind  it,  notwith- 
standing he  may  have  violated  his  private 
instructions  or  the  express  terms  of  the 
secret  articles  of  partnership.  Sandilands 
V.  Marsh,-2  B.  &  Aid.  673;  United  States 
Bank  v.  Binney,  5  Mason,  176;  H  Pet.  529. 

a  Flemyng  v.  Hector,  2  M.  &  W.  178  ; 
Todd  V.  Einly,  7  M.  &  W.  427;  8  M.  & 
W.  505;  East  India  Co.  v.  Hensley,  1  Esp. 
Ill;  Woodin  v.  Burford,  2  Cr.  &  M, 
391  ;  Jordan  v.  Norton.  4  M.  &  W.  155  ; 
Sykes  v.  Gylas,  Tb.  645 :  Waters  v.  Brog- 
den,  1  Y.  &  J.  457;  Daniel  v.  Adams, 
Ambl.  495  i-Munn  v.  Commission  Co.,  15 
Johns.  44,  54 ;  Rossiter  v.  Rossiter,  8 
Wend.  494  ;  Andrews  v.  Kneeland,  6 
Cow.  354 ;   Brown  v.  Trantram,  6  Mill. 


(La.)  47;  Boals  v.  Allen,  18  Johns.  363; 
Hatch  V.  Taylor,  10  N.  H.  538;  Alleiir. 
Ogden,  1  Wash.  C.  C.  174.  Smith,  in 
his  Merc.  Law,  172,  says:  "A  gnneral 
agent  is  a  person  whom  a  man  ])Uts  in  liis 
place  to  transact  all  his  business  of  ii  par- 
ticular kind.  Thus  a  man  usually  retains 
a  factor  to  buy  and  sell  all  goods,  ami  a 
broker  to  nefjotiate  all  contracts  of  ;i  cer- 
tain description  ;  an  attorney  to  transact 
all  his  legal  business;  a  master  toinrform 
all  things  relating  to  the  usual  einplnyment 
of  his  ship  ;  and  so  in  other  iiist.incei!. 
The  authority  of  such  an  agent  to  jurform 
all  things  usual  in  the  line  of  business  in 
which  he  is  employed  cannot  \w  liniitcii 
by  any  private  order  or  directinn  not 
known  to  the  party  dealing  witli  him. 
But  the  rule  is  directly  the  reverse  eon- 
cerning  a  particular  agent ;  i.  c,  an  agent 
employed  specially  in  one  .single  transi- 
tion ;  for  it  is  the  duty  of  the  party  ileal- 
ing  with  such  an  one  to  ascertiiin  the  ex- 
tent of  his  authority ;  and  if  he  <loe3  nol, 
he  must  abide  the  consequences." 


PART  VII.] 


PARTNERS    SALES. 


487 


cipal  for  the  acts  of  his  agent,  within  the  scope  of  the  agency. 
But  when  tiic  authority  of  tlie  agent  is  in  writing,  and  it  is  neces- 
sary to  prove  such  authority  by  writing,  the  writing  must  be  pro- 
duced and  proved  ;  and  if,  from  tlic  nature  of  the  transaction, 
the  authority  must  have  been  in  writing,  parol  evidence  will  not 
be  adaiissiblo  to  prove  it  unless  as  secondary  evidence  after  proof 
of  tlic  loss  of  the  original.  And,  therefore,  on  tlio  same  principle, 
the  statements  or  declarations  of  the  alleged  agent  are  not  evi- 
dence as  against  the  alleged  principal  of  the  existence  of  the 
agency.*  The  same  doctrine,  on  principle,  unquestionably  ap- 
plies to  a  partnership.^ 


ii 


r  !- 


'I  " 


'  Declarations  of  the  agent  to  third 
|ii'riics,  stating  his  agency  and  ita  scope, 
are  not  competent  evidence  to  prove  tlie 
existence  or  scope  of  tlio  agency.  Nor  are 
ills  acts  done  witiiout  the  knowledge  or 
authority  of  th)  alleged  principal,  and  not 
ratilit'd  subse<]ucntly  by  him,  evidence  of 
tilt'  agency,  Gr.  on  Ev.  p.  53  ;  Whiting 
V.  Lake,  <Jl  Pa.  St.  349;  Uevnolds  v.  Con- 
tinental  Insurance  Co.,  36  Mich.  131.  As 
tlie  rule  admitting  the  declarations  of  the 
agent  is  founded  upon  his  legal  identity 
with  the  principal,  they  bind  only  as  far 
as  the  agent  had  authority  to  make  tiieni. 
Tav.  on  Ev.  §  605  ;  Fausett  v.  Fansett, 
],.H.  7  Ec.  &  M.  93-95;  Hogg  u.  Oarrott, 
12  Ir.  Eq.  R.  559.  These  principles  are 
well  laid  down  by  Sir  William  Grant,  in 
Fairlie  «;.  Hastings,  12  Ves.  126,  thus: 
"As  a  general  pro|)osition,  what  one  man 
says,  not  upon  oath,  cannot  be  evidence 
against  another  man.  The  exception  must 
arise  out  of  some  jwculiarity  of  situation, 
coupled  with  the  declarations  made  by 
Olio.  An  agent  may  undoubtedly,  within 
the  seo|)e  of  his  authority,  bind  his  prin- 
cipal by  his  agreement,  and  in  many  ca.ses 
by  his  acts.  What  the  agent  has  said  may 
be  what  constitutes  the  agreement  of  the 
inincipal,  or  the  representations  or  state- 
ments made  may  be  the  foundation  of,  or 
the  iiidiu'enient  to,  the  agreement.  There- 
fore, if  writing  is  not  necessary  by  law, 
eviilenoe  must  be  admitted  to  prove  the 
agent  did  make  that  statement  or  repre- 
sentation. So,  with  regard  to  acts  done, 
the  words  with  which  tho.se  acts  arc  ac- 
companifd  frequently  tend  to  determine 
their  quality.  The  party,  therefore,  to  be 
bound  by  the  act,  must  be  affected  l)y  the 
Words.  But  except  in  one  or  the  other  of 
those  ways,  I  do  not  know  how  what  is 
said  by  an  agent  can  be  evidence  against 
his  ]iriiieipal.  The  mere  assertion  of  a 
[act  cannot  amount  to  proof  of  it,  though 
it  may  have  some  relation  to  the  business 
>n  which  the  person  making  that  assertion 
vas  employed  as  agent.     For  instance,  if 


it  was  a  material  fact  that  there  was  the 
bund  of  the  defendant  in  the  hands  of  A., 
that  fact  would  not  be  proved  by  the  as- 
sertion that  A.,  an  agent,  had  said  there 
was  :  for  this  is  no  fact ;  that  is,  no  ]>art 
of  any  agreement  wliich  A.  is  making,  or 
of  any  statement  he  is  making  us  induce- 
ment to  an  agreement.  It  is  mere  nar- 
ration, —  connnunication  to  the  witness  in 
the  course  of  conversation,  —  nnd,  there- 
fore, could  not  be  evidence  of  the  exist- 
ence of  the  fact.  The  admission  of  au 
agent  cannot  be  assimilated  to  the  admis- 
sion of  the  ])rincipal.  A  party  is  bound 
by  his  own  admission,  and  is  not  per- 
mitted to  contradict  it.  But  it  is  im|)os- 
sible  to  say  a  man  is  precluded  from  ques- 
tioning or  contradicting  anything  a  person 
has  a.sserted  as  to  hin),  —  as  to  his  conduct 
or  his  wprnueiit,  —  merely  because  that 
person  has  Wen  an  agent  of  his.  If  any 
fact,  material  to  the  interest  of  either 
jiarty,  rests  in  the  knowledge  of  an  agent, 
it  is  to  be  proved  by  his  testimony,  not 
by  his  mere  assertion."  Carrying  out  this 
doctrine,  Lord  Keiiyon,  in  Maesters  i>. 
Abraham,  1  Esp.  ;!75,  refused  to  admit  an 
agent's  letter  containing  a  statement  of 
wiiat  he  had  done  for  his  principal ;  hold- 
ing that  such  facts  must  be  proved  by  him- 
self, not  by  his  statement  of  them  in  a  let- 
ter. See  Bauerman  i;.  Uadenius,  7  T.  U.  663; 
Bank  of  Scotland  v.  Watson,  1  Dow.  40, 
45;  East  India  Co.  v.  Hensley,  1  Esp.  112; 
Daniel  v.  Adams,  Ambl.  498  ;  Howard  v. 
Braithwaite,  1  Ves.  &  B.  209  ;  Fenn  v. 
Harrison,  3  T.  K.  760 ;  4  T.  R.  177.  As 
the  creation  of  an  agency  and  the  fomia- 
tion  of  a  partnership  are  both  contracts, 
and  as  a  contract  is  an  agreement  between 
two  or  more  parties  to  do  or  not  to  do 
some  particular  thing  ;  so,  for  the  forma- 
tion of  a  partnership,  as  well  as  for  the 
creation  of  an  agency,  the  "agreement" 
of  the  parties,  expressly  or  impliedly, 
must,  in  both  cases  alike,  he  shown. 

*  In    the    New    Brunswick    case    to 
which  we  have  referred  in  a  previous  note 


, 


\  t'\ 


m 


,*  !i 


■41 


'■  *iip 


J 


488 


COMMENTARIES  ON  SALES. 


[book  II. 


4.  Partnership  Purchases  and  Sales. 

A  largo  proportion  of  the  cases  which  wc  have  examined  in  this 
Part  are  cases  whicli  have  arisen  out  of  purchases  by  partners,  or 


to  this  Part  (Joiies  v.  FohIit,  12  N.  IJ.  U. 
607,  8eH  ante,  p.  47!*.  "■),  nil  these  priii- 
cii)lea  Were  disrcf^iirdcd  and  (umtiaveued. 
We  exauiiiic  that  raso  more  t'liUy  in  thi.s 
noto,  after  having  first  examined  some 
other  authorities.  The  easo  of  Denny  l: 
Cabot,  6  Mote.  82,  is,  as  to  tlio  faets,  us 
appliealile  to  the  matter  we  are  consider- 
ing, very  nmuli  the  same  as  Jones  v.  Fos- 
ter, siiitra.  One  ('o')iiur  had  leased  a 
woollen  mill  in  Milfonl,  and  agn-ed  with 
the  defendants,  of  Huston,  to  ntunufaeture 
wool  for  them,  — the  stoek  to  be  delivered 
to  him  at  his  mill,  and  he  to  deliver  the 
manufactured  goods  to  the  defendants  at 
Boston.  Ho  was  to  bo  paiil  a  fixed  sum 
per  yard  for  manufacturing  the  goods,  and 
in  addition  was  to  receive  one-third  of  the 
net  profits  on  the  business,  the  defend- 
ants charging  all  expenses,  interest,  etc., 
and  a  conunissiun  and  guaranty  on  gross 
sales  of  six  per  cent.  Cooper  bought  dye- 
stuffs,  etc.,  from  the  ]>laiiitifrs,  .showing 
them  his  agreement  with  the  defendants, 
and  stating  to  the  plaintitls'  that  the  de- 
fendants would  accept  his  drafts  for  pay- 
ment. All  the  articles  supplied  by  the 
plaintiffs  to  Cooper  under  this  sale  were 
used  by  Cooper  in  the  manufacture  of  the 
defendants'  goods,  the  goods  as  manufact- 
ured being  sent  to  the  ileleudants.  After 
delivery  of  the  dye-stuffs,  etc.,  to  Cooper, 
he  drew  a  draft  on  the  defendants  in  favor 
of  the  plaiutifls,  which  was  refused  accept- 
ance. Previously  to  Cooper's  application 
to  the  plaintiffs  for  the  goods,  he  had 
failed,  owing  the  {)laintifrs,  who  had  lost 
their  debt,  ho  having  no  property,  and 
being  discharged  in  insolvency.  After 
obtaining  these  supplies.  Cooper  manu- 
factured no  goods,  except  under  his  agree- 
ment with  the  defendants.  Having  again 
failed,  an  action  was  brought  against  the 
defendants  for  ])ayment  for  the  supplies. 
The  court  held  that  the  defendants  were 
not  liable,  tho  facts  not  constituting  them 
partners  with  Cooper.  The  case  was  de- 
cided on  the  basis  of  the  old,  airy  distinc- 
tion made  in  many  of  the  old  cases  ;  dis- 
approved by  Lord  Eldon,  and  condemned 
in  Cox  V.  Hickman,  8  H.  L.  C.  268. 

Now,  under  the  principles  decided  by 
that  case  and  the  others  following  it,  it 
would  be  perfectly  clear,  under  the  rules 
of  evidence  applicable  to  agency,  and  to 
partnership  as  embodying  agency,  that, 
even  admitting  that  the  agreement  be- 
tween Cooper  and  the  defendants  consti- 
tuted them  partners,  it  was  simply  a 
special,   limited  partnership,  and  there- 


fore was  but  a  special,  limited  agi'iioy ; 
and  thence  the  laws  of  evidence  reliiti'ng 
to  a  special,  limited  agency  were  iM|imlly 
applicalde  to  a  t<p(-i'iid,  limited   iiitiiijiM- 
ship.      On  this  principle  the  decisiou  in 
tho  case  would  be  simplicity  itself,     By 
the   agreement,  Cooper   neilher  exinussly 
nor   impliedly  was  tho  agent  of  the  di'. 
fendants  to  Ijuy  the  dye-stuffs  for  tliciii, 
"on  their  behalf,"  as  principals  in  the 
matter.       A    clear    test,    with    reletPinv 
thereto,  is  sup{)lied  in  the  fact  that  tluTi; 
was  nothing,  by  virtue  of  the  contrmt,  tu 
cause  a  projierty  in  the  dye-stuffs,  bcloie 
their  use,  to  vest  in  the  defendants,  it 
being  (luite  in  Cjoper's  ]iower  to  excliiiii<,'e 
them  tor  other  dye-stuffs,  or  to  use  tliem 
in  any  other  mill,  or  in  the  manufactiinu;^ 
of  any  other  goods,  without  any  riglit  cii 
the  part  of  the  defendants  to  object  tu 
stich  an  use.     This  was  thu  grounil  u|ioii 
which  a  case  to  which  we  have  previously 
referred  in  this  Part  (Wilson  v.  White- 
head,   10    M.  &   W.    503)    was   decided. 
This  case  is  expressly  put  on  tho  gioiiml 
of  "  luthority ; "   that  is,  agency.     Here 
A.,   H.,  and  C.  agreed  that  they  shoiilcl 
bring  out  and  be  jointly  interested  in  a 
periodical  publication.     A.  was  to  be  the 
publisher,  and  to  make  and  receive  gen- 
eral payments ;  B.  to  be  tho  editor,  ami 
C.  liie  printer ;  and  after  payment  of  all 
expenses,  they  were  to  share  the  pmlitsof 
the  work  eijually.     C.  was  to  furnish  the 
paper,  and  charge  it  to  the  account  at  I'ost 
prices.     The  paper  was  delivered  l/  the 
plaintiffs  to  the  defendant.  A.,  who  car- 
ried on  business  in  the  name  of  "A.  4 
Co.,"  for  the  purpose  of  being  used  by 
him    in    printing    the   periodical   jointly 
owned  by  A.,   B.,  &  C.      Lord  Aliiiifjer 
held,  on  the  trial,  that  B.  and  C.  were 
not  jointly  liable  with  A.  for  tho  ]irice 
of  the   paper,  and   nonsuited   the  ])hiin- 
tiffs.     On  motion,  pursuant  to  leave,  the 
court  unanimously  sustained  the  nonsuit. 
Parke,  B.,  said:    "The  question  is,  did 
the  other  defendants  authorize  A.  to  [mr- 
chase  the  paper  on  their  account  or  on  his 
own  ?    It  appears  to  me,  on  the  true  cnii- 
struction  of  the  contract,  that  the  latter 
was  the  ca.se.     When  the  paper  was  in 
his  possession  he  was  at  liberty  to  have 
appropriated    it    to    any  other   purpose. 
This  is  very  much  like  the  ordinary  ca.se 
of  coach  proprietors,  where  each  liorses 
the  coach  for  one  or  more  stages,  and  each 
agrees  to  bring  into  the  concern  the  work 
and  labor  of  his  horses,  and  none  of  th'' 
others  has  any  interest  in  them,  though  all 


[book  II,     I     PAUT  VII.] 


PARTNERS'   SALES. 


489 


■'■'''' 

B  111 

those  who  were  claimed  to  bo  such,  or  of  sales  to  them.    The 
leading  and  now  celebrated  case  of  Cox  v.  Hickman  *  was  one 


shart'  ill  the  luolits."  Counsd  :  "Those 
cases  lU'oiTod  nil  th(!  ^'nuiinl  tliiit  it  is  no- 
tiiriuus  to  III!  timt  iiuli  dues  so  work  with 
lii^owii  horses."  I'lirke,  IJ.;  "Not  at  all; 
hut  lilt  lite  ijroand  tlnd  audi  is  the  autluirily 
ijiveii."  The  nucstioM  was  thus  treated  in 
I'tJL'i^t  as  to  the  nature  of  the  ai,'('niy  that 
was  created  by  the  purtiiersliip  agree- 
iiii'iit, 

The  ease  to  whieh  wo  have  previously 
R'fc'iied  (Jones  V.  l-'oster,  12  N.  U.  K.  tiii7, 
ill  wliicji  liitchie,  C.  .F.,  delivers  the  ju<l,!,'- 
iiifiit  I'l'  the  whole  court),  not  only  eoiitra- 
veiH's  the  {iriiieijiles  named  by  us  in  the 
text ;  is  in  opiiosition,   in    lu'ineiiile,  not 
only  to  the  two  cases  above  named,  and 
to  a  jjreat  nunilxT  of  other  well-decided 
cases,  hut  is  so  utterly  unsound  as  to  be 
palpably  absurd.     The  facts  were  that  I)., 
Ill  New  iirunswick,  the  survivor  of  tho 
tinii  uf  M.   &   I).,   continued   for  several 
ytais  after  the  death  of  hi?"  dim  .ler  to 
cany  on  the  business  of  puuJiuo.iig  and 
shijipiiig  shingles,  in  the  old  linn  name  of 
M.  &  I).,  and  was  ii     :  ?  habit  of  imrehas- 
iiiL'  ^oods  on  credit  from  the  plaintiff  and 
utliers  ;   thi;  account,  all  this  time,  in  the 
jilaiiitiirs  books  being  kept  against  "M. 
i  D."    The   defendants,    F.   &  S.,   were 
iiuMchants,  carrying  on  a  lumber  and  gen- 
eral coiiiniission  business  in  Boston,  and,  in 
tlw  fall  of  18(56,  an  agreement  was  entered 
iiitd  lietween  F.  &  S.,  D.  (in  the  name  of 
M.  Si.  ]).),  and  one  15.     The  agreement, 
which  was  in  writing,  after  reciting  that 
tilt;  parties  had  agreed  to  enter  utmn  an 
oponitioii  for  "the  purchase  and  selling  of 
shingles,  "  upon    the    terms    thereinafter 
iiiMilioiied,  provided  that  M.  &  1).  were  to 
attend  to  the  necessary  assorting,  piling, 
ami  re-sliiijping   all   shingles    and    clap- 
boards, ami  Were  "  to  receive  for  their  ser- 
vices iiil  expenses  on  account  of  same,  in- 
cluding wharfage,"  at  a  named  rate.     U. 
was  to  devote  his   time  "in  purchasing 
shingles  and   claplwards ; "  anil  F.  &  S. 
»eit'  to  make  and  control  the  sales  ;   to 
receive  a  commission  on   the   sales,  and 
actual  ex]ienses  incurred  by  them.     The 
lumber  imrchased    under  the    agreement 
was  (Iculiired  to  be  "joint  projjcrty  of,  and 
as  purchased  for  F.  &  S.  and  M.  &  D." 
The  capital  was  to  be  furnished  "eiiuallv 
liyM.  &  I),  and  V.  &  S.,"  on  which  interest 
was  to  be  clmrged.    Profit  or  loss  was  to  be 
equally  divided,  one-third  to  M.  &  D.,  one- 
tliird  to  F.  &  S.,  and  one-third  to  U.    The 
business  was  carried  on  until  July,  1867; 
D',  iu  the  meantime,  carrying  on   other 
business  in  shingles  and  clapboards  in  the 


...  ., ...J,  i.  ^, ,  , .,., 

properly   disposing  of 
cla|iboards,  I'.  &  S.  obtii 


same  name  of  .M.  &   I).    At  the  time  of 

entering  into  the  agiceiueiit  I),  was  really 
worth  little  or  nothing,  nnd  ])iit  virtually 
nothing  into  the  business  exi'cpt  such  goods 
as  h(!  Iiad  bought  from  the  |ilaiiitilf  and 
others,  in  his  olil  ririu  name  of  M.  &  I).; 
as  he  had  previously  been  in  the  haliit  of 
buying.  The  plaintilf  hud  dealt  with  D. 
for  several  yiiars  bi'lore  this  agreement  wa.s 
made,  and  in  Juniinrij,  l.Sti?,  I). 'a  indcbt- 
edness  to  him  was  large.  F.  k  S.  advanced 
for  the  (iiirposesof  purihasing  shingles  and 
clapboards  under  the  agreement,  to  the 
extent  of  about  $100,0(10  more  than  ^'i. 
lirodilet  of  the  lumber  that  they  received. 
In  July,  1867,  whiiming  that  1).  was  im- 
tho  shingles  antl 
itained  an  iiijuiietiun 
restraining  him  from  doing  so.  I',  was 
then  in  insolvent  eireunistaiices,  la. iijj  in- 
debted to  the  plaintilf  and  others  for  goods, 
and  owing  F.  &  S.  in  excess  of  uU  the  lum- 
ber shipped  by  hini  to  them,  about  $10  i,- 
000.  In  drawing  on  F.  &  S.  for  iiH.ney, 
D.  dill  .so  in  his  oM  tirm  name  of  M.  &  I)., 
as  he  did  in  drawing  on  others.  Tho  ac- 
counts kept  in  F.  &  S.'s  books  were  headed 
"  M.  &  1).,  Joint  Ae(;ount,"  and,  before  the 
agreement  was  made,  the  account  in  their 
books  was  headed  "  M.  &  IV"  In  June, 
1867,  1).  gave  the  plaintitf  notes  for 
$1,302.44,  for  the  balance  then  due  him. 
The  notes  were  given  in  his  old  firm  name 
of  M.  &  D.  When  they  fell  due  they  were 
dishonored,  nnd  subsequently  a  suit  was 
brought  in  New  Hrunswick  by  the  plain- 
tiff against  F.  &  S.  and  1).  ;  the  latter  of 
whom  allowed  Judgment  to  go  against  him 
by  default.  On  the  trial,  to  prove  the 
partnership,  the  written  agreement  was  put 
in  evidence  ;  and  then,  against  the  objec- 
tions of  the  counsel  of  F.  &  S.,  that  there 
was  no  evidence  of  F.  &  S.  having  held 
themselves  out  as  partners  with  I).,  or  as 
being  members  of  the  firm  of  jM.  &  D.  ; 
that  the  partnership  agreement  showed 
no  agency  in  1).  to  bind  F.  &  S.  for  goods, 
which  he  had  bought  and  ,su]>plied  as  a 
portion  of  his  part  of  the  capital,  and  no 
authority  whatever  shown  from  F.  &  S.  to 
D.  to  make  notes  in  the  name  of  M.  &  D. 
to  bind  them  ;  the  plaintilf  was  allowed 
by  the  presiding  jntlge  (A'len,  J.),  to  give 
in  evidence  that  he  wen«.  in  January, 
1867  (at  which  time,  mark,  "  D.'s  indeht- 
edness  to  him  was  large  "),  and  saw  D  . 
who  told  him  (!)  of  the  partnership  be- 
tween him  and  F.  &  S.,  and  said  he  should 
want  som£  goods :  that  prindpaUy  all  the 
business  he  was  doing  on  tlie  river  waa  a 


»  8  H.  L.  C.  268. 


i 
( 


u 


Iw^ 


f 
[ 
It 

4  1 


1 


.V-il 


490 


COMMENTARIES  ON  SALES. 


[book  II. 


within  this  class  of  cases     There,  debtors  in  embarrassed  circum- 
stances assigned  their  property  to  trustees,  for  the  bcnelit  of  cred- 


joint  business  with  F.  &  S.  ;  that  A., 
uu  outside  (luison,  knew  all  about  the 
business  between  them,  and  he  referred 
him  to  A.  The  plaiutitt'  then  went  to 
A.,  who  told  hint  (!)  that  there  was  a 
partnership  between  F.  &  S.  and  U.  ;  that 
they  were  buying  and  shipping  lumber, 
and  he  believed-  they  were  perfectly  good. 
The  pluintiir  did  not  ask  the  particu- 
lars of  the  agreement,  and  A.  did  not 
inform  him.  The  plaintilf  stated  that 
from  this  information  and  otlixr  causes  he 
was  led  to  make  further  advances  of  goods 
to  D.  There  was  no  change  in  his  books, 
the  goods  being  charged  to  M.  &  D.,  be- 
cause, the  plaintilf  said,  he  understood  the 
business  was  carried  on  in  that  name. 

It  is  only  necessary  to  name  these  facts 
to  show  how  monstrously  the  rules  of  evi- 
dence were  violated.  But  still  worse,  after 
he  hail  put  in  the  written  agreement  to 
prove  ilio  partnership,  the  plaintiff,  again 
against  objection,  called  D.,  —  who  was 
then  in  antagonism  to  F.  &  S.,  —  who 
"states"  that,  a  month  before  tlie  agree- 
ment W(is  entered  into  "  it  was  agreed  that 
the  three  defendants  and  one  li.  should 
enter  into  an  agreement  relative  to  the  buy- 
ing  and  shipping  of  lumber."  "  D.  states 
that  the  business  was  to  be  carried  on," 
in  elTect,  in  contravention  of  the  whole 
tenor  of  the  proved  written  agreement ; 
making  F.  &  S.  really  general  partners  in 
the  (irm  of  M.  &  D.  ;  and,  still  worse, 
statin!^  in  effect  that  they  were  to  furnish, 
not  one-half  the  capital  for  the  "  purchase  " 
of  the  shingles,  —  not  for  the  purchase  by 
D.  for  goods  to  be  used  by  him  as  he 
pleased,  as  A.  could  have  done  in  the 
analogous  case  of  Wilson  v.  Whitehead, 
10  M.  &  W.  503,  stated  supra, —  but,  in 
eflfect,  the  entire  ca])ital,  for  their  own 
ha'f,  and  for  D.'3  halt"  as  well.  The  charge 
was  in  accordance  with  all  of  this  im|)rop- 
erly  received  evidence,  and  was,  in  ell'ect, 
that  there  was  a  partnership  under  tlie 
agreement  which  gave  D.  power  to  bind 
F.  &  S.  for  goods  purchased  bij  him  for  the 
purpose  of  getting  out  shingles  on  joint 
account  ;  that  it  was  immaterial  whether 
F.  &  S.  had  contributed  more  than  their 
share  of  the  capital  or  not ;  and  that  D. 
had  a  riglit  to  bind  F.  &  S.  by  draioinq 
joint  notes  and  bills  in  the  name  of  M.  & 
D.  for  the  goods  bought  from  plaintiff 
(many  of  which  were  bought  bclbre  the 
agreement  was  made),  if  F.  &  S.  had  re- 
cognized notes  and  bills  drawn  in  that 
name.  Of  this  last,  which  is  most  disin- 
genuously put,  there  was  n't  a  tittle  of 
evidence  except  that  F.  &  S.  accepted  and 
paid  M.  &  D.  «  drafts  on  thorn  to  furnish 


their  share  of  the  capital.  The  jury, 
under  this  evidence  and  charge,  huvinir 
found  for  the  jdaintilf,  the  defemlants 
moved  for  a  trial  on  the  grounds  of  the 
improper  reception  of  evidence,  misdirec- 
tion in  the  charge,  and  verdict  against  the 
weight  of  evidence.  The  (wsitioii  wiis 
taken,  under  Cox  v.  Hickman,  8  11.  h.  C. 
268;  Bullen  v.  Sharp,  12  .lur.  .\.  s.  247, 
and  other  cases  following  them,  that,  D.s 
ogency  being  limited  and  strictly  deliiuil 
by  the  agreement,  ho  was  in  a  imsition 
of  a  special  agent  merely,  and  had  iio 
j)ower  to  bind  F.  k  S.  beyond  the  scuiie 
of  the  agency,  and  that  all  the  evidence 
in  which,  an  attempt  was  made  to  enlarge 
the  agency  was  wrongly  received.  Tlie 
verdict  was  sustaincnl  by  the  court,  on  a 
principle  that  would  (|uite  as  much  have 
made  D.  liable  to  the  bankers  of  F.  &  S. 
for  moneys  they  might  have  obtained  for 
their  share  of  the  capital,  as  to  have  niade 
F.  &  S.  liable  on  D.'s  own  notes,  fur  goods 
purchased  by  hin:  as  the  only  and  small 
contribution  made  by  him  towards  his 
share  of  the  capital. 

The  case  furnishes  a  fair  exemiililica- 
tion  of  the  effect  of  the  reliance  upon  the 
old  fallacy  that  the  right  to  share  in  the 
profits  constitutes  a  jmrtnership.     It  was 
simply  the  wrong  application  of  this  old 
doctrine  that  led  to  the  sustainiii<!  of  all 
the  improperly  received  evidence,  ami  in- 
accuracies in  the  charge  in  this  case  ;  the 
court  improperly  laying  down  as  a  generiil 
principle,  a  statement  made  bv  <  'rcsswcll, 
J.,  in  Heyt  v.  Barge,  9  ('.  B."4.';8,  Wfore 
the  sound  rules  of  t'ox  v.  Hickman,  8  H. 
L.  ('.  268,  and  the  cases  following  it,  were 
established,  that  " it  has  been  deiiih'il  in 
so  many  cases  that  an  agreement  lictween 
the   i)arties   to  be  jointly  intcreslcd  in  ih/ 
profits  of  one  transuction  coiustitutis  n  pir!- 
nership,  and  authorizes  them  to  do  all  Ih'it 
■is  necessary  to  obtain  profits,  as  mwil  in 
sifh  matters,  that  the  rule  cannot  nmck 
shaken."     The  rule  has  been  most  I'llectii- 
ally  shaken,  and,  as  a  universal  principle, 
as  it  is  stated,  is  entirely  nnsouinl,  as  is 
the  decision  in  Jones  v.  Foster.    The  de- 
fendants in  this  latter  case  had  no  more 
property  in  the  goods  bought  by  1).  in  his 
old   firm  name,   or  the  right   to  control 
them,   than   the    defendants   had  in  the 
good.,  in  the  two  previous  rases  statcil  in 
this  note ;  and  in  this  case,  as  in  those, 
D.  had  the  .same  right  to  use  the  sjoods 
which  he  had  purchased  in  his  own  lirni- 
namo,  aa   he    might   have  elei'ted  to  d", 
as  in  those  other  well-decided  cases,  tlif 
purchaser  of  the  jianer  in  the  one  «*■ 
and  of  the  dye-stnils  in  the  other,  w 


I 

PART  VII.]                                partners'   SALES.                                            491 

itors,  empowering  the  trustees  to  carry  on  the  business  under  the 

name  of  the  "  S.  Company."    Two  of  the  creditors,  C.  and  W., 

rightly  decided  to  have  had,  with  respect 
to  till'  juiper  and  dye-stuffs  so  resiiectivcly 
Iiunliiised  by  tlieni. 

W'c  liuve  made  tiiis  lengthy  nuulysis  of 
the  unsoundly  decided  ease  of  Joues  v. 
Foster,  .sinii)ly  because  we  are  aware  that 
some  of  the  courts  in  this  country  have 
not  followed  or  assented  to  the  sound 
liriiR'iiiles  of  Cox  v.  Hickman,  8  H.  L.  C. 
^80,  and  the  other  cases  following  it  ;  and 
\vc  thought  It  well,  by  the  exposure  of  the 
fallacies  in  the  New  Brunswick  case  of 
Jones  V.  Foster,  12  N.  B.  II.  607,  to  show 
to  wliiit  ridiculous  results  the  ignoring  of 
those  jirinciph's  leads  on  the  part  of  judges 
ami  courts  that  do  not  act  on  them  or 
misiiiiiierstand  them. 

Nicholson  V.  Ricketts,  2  El.  &  El.  497, 
it  a  case  which  is  in  marked  opposition  to 
the  liolding  in  Jones  v.  Foster,  12  N.  B. 
11.  607  ;  the  facts  in  several  important 
wrtieulars  being  essentially  the  same.  In 
Nieliolson  v.  Kicketts,  V.  &  Co.,  mer- 
I'haiits  trading  in  Iiuenos  Ayres,  agreed 
with  defendants,  merchants  trading  in 
London,  to  carry  on  joint  exchange  opera- 
tions ;  by  which  V.  &  (.'o.  were,  at  Bue- 
nos Ayres,  to  draw  bills  periodically  on 
(k'fendants,  to  sell  them  there,  and  to  in- 
vest the  ]iroceeds,  keeping  defendants  out 
of  cash  advances  by  periodically  remitting 
to  them  bills  to  the  same  amount  on  other 
tirnis,  to  be  bought  by  V.  &  Co.  These 
transaL-tioiis  were  on  the  footing  of  a  com- 
munity of  profit  and  loss,  which,  under 
the  circumstances  of  the  ease,  constituted 
the  parties  partners  with  respect  to  these 
transactions.  Plaintilfs,  a  firm  at  Buenos 
Ayres,  bought  from  V.  &  Co.  certain  of 
the  bills  drawn  by  the  latter,  in  their  own 
name,  on  defcndant.s,  in  the  course  of 
these  operations,  riaintitfs  were  induced 
to  bny  the  bills  by  the  .statement  of  a 
broker,  employed  by  V.  &  Co.  to  procure 
imrcliasers,  that  "the  bills  were  all  in 
"iiler,  he  having  seen  defendants'  letter  of 
omlit  to  y.  k  Co.,  in  virtue  of  which  tlie 
hills  were  drawn."  Defendants  refused  to 
(ii:i'e|pt  these  bills  on  ]iresentation.  V.  & 
Cu.  liccoming  bankru]its,  an  action  was 
hronsht  against  the  defendants  as  drawers 
"f  the  hills.  The  court  held,  on  a  special 
ease  stated,  that  although  the  defendants 
*nil  V.  &  Co.  were  partners,  the  defend- 
ants were  not  liable  on  the  bills,  V.  &  Co. 
iiavinj,'  no  power  to  make  defendants  liable 
h'  their  contract,  notwithstanding  tho 
»?reemi'nt  that  existed  between  them. 
The  (let'cndants  only  Iwcame  liable  on  such 
I'ills  when  they  accepted  them.  A  forti- 
"n,  they  would  not  have  l)een  liable  ii  V.  & 
^o,  had  made  their  own  promissory  notes, 


for  goods  bought  by  them  before  and  after 
the  partnership  was  constituted,  without 
either  express  or  implied  authority,  as  in 
the  New  Brunswick  case. 

Ex  2>nrtc  The  Darlington  &  Stockton 
Banking  Co.,  11  Jur.  N.  s.  1'22,  was,  in 
ell'ect,  decided  on  the  principles  laid  down 
by  us  in  the  text.  It  was  there  held  that 
although  a  partner  may  have  full  author- 
ity to  deal  with  the  partirership  a.ssets, 
and  to  diaw,  accept,  and  indorse  bills  of 
exchange,  it  is  the  duty  of  jier.sons  having 
dealings  with  them,  wlien  they  have  rea- 
.son  to  believe  that  a  particular  act  is 
being  done  in  the  ])artnership  name  for 
the  private  benefit  of  the  partner,  to  ascer- 
tain the  extent  of  his  authority  ;  other- 
wise the  persons  so  dealing  with  him  must 
dej)end  on  the  right  and  title  of  the  part- 
ner, or  on  circumstances  sulUcient  to  repel 
the  presumption  of  fraud.  The  iiuestion 
is  simply  one  of  authoritj',  as  in  the  case  of 
an  ordinary  agency  ;  the  same  evidence 
being  applicable  to  establish  the  authority 
of  the  principal  in  either  case.  Lord 
Westbury  well  saj's  ;  "  1  take  it  that  the 
law  on  the  subject  is  perfectly  clear  and 
well  established.  Generally  sj)eaking,  a 
partner  has  full  authority  to  deal  with 
tl;e  partnership  property  for  iiartner.ship 
pur|)oses.  If  the  business  of  tlie  partner- 
ship be  such  as  ordinarily  requires  bills  of 
exchange,  then,  unless  restrained  by  .agree- 
ment, any  one  partner  may  draw,  accept, 
and  indorse  bills  of  exchange  in  the  name 
of  the  partnership  for  i>artnersbip  jiur- 
poses.  All  persons  may  give  credit  to  his 
acts,  and  his  authority,  unless  they  have 
notice,  or  reason  to  believe,  that  the  thing 
done  in  the  partnership  name  is  done  for 
the  private  pur[)oscs,  or  on  the  separate 
account  of  the  partner.  In  that  case,  au- 
thuritij,  hy  virtue  of  the  partnershi])  con- 
tract, ceases  ;  and  the  person  dealing  with 
the  individual  partner  is  bound  to  inquire 
and  (iscertiiin  the  extent  of  hi.s  itutlwrily  ; 
oth'.'rwisc  he  must  depend  on  the  right 
and  title  of  the  partner,  or  on  circum- 
stances suHicient  to  repel  !he  iircsuini>tion 
of  I  laud.  These  principles  have  been  cstab- 
lislied  by  a  long  series  of  decisions,  —  if, 
indeed,  decisions  were  at  all  renuired  to 
show  the  proper  application  of  the  rule  of 
law,  which  is  so  plain  and  obvious  as  that 
which  results  from  the  ordinary  law  of 
agepcy,  as  applied  to  partnerships."  Ibid. 
123.  Here,  clearly,  was  simply  an  appli- 
cation of  the  rules  of  law  as  to  an  agency 
being  held  applicable  to  partnerships. 

The  principle  is  clear  that  a  party  is 
not  liable  as  a  partner,  exciept  he  give  to 
his  partner  express  or  implied  authority 


|.-':;,.;l 


Ii 


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I 


P.ir^ 


i."  i'l  :■':    f 
':■   t  r,    - 


&  I  ;:  I 


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i  ^■ 


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111 


I 


i   I 


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11 -Mi] 


f  81 J 


492 


COMMENTARIES  ON  SALES. 


[book  II. 


were  named  among  the  trustees.  C.  never  acted.  W.  acted  for 
six  weeks  and  then  resigned.  The  other  trustees  subsequently 
purchased  goods  from  the  plaintiff,  for  which  they  gave  the  ac- 
ceptance of  the  S,  Company.    In  an  action  against  C.  and  W.,  it 


to  pledge  his  credit  in  tlie  trarisiiction 
out  of  wliicli  the  uluini  arises.  It  is,  as 
stated  bet'ori',  a  iiu'ro  ([uestion  of  author- 
ity ;  of  agency  ;  tlie  law  as  to  agency  be- 
ing eleariv  ai)|ili(able  to  show  the  au- 
thority. See  Thorn  v.  Smith,  21  Wend. 
3G5  ;  Oracir  v.  Ilitchinan,  5  Watts,  454  ; 
Ostroin  V.  Jacobs,  9  Mete.  454.  Smith  v. 
Craven,  1  Cr.  &  J.  500,  is  applicable  to 
further  show  the  absurdity  of  the  holding 
in  .Jones  V.  Foster,  12  N.  IJ.  R.  607  ;  the 
two  cases  being  singularly  alike.  In  Smith 
V.  Craven,  1  Cr.  &  .1.  500,  which  was  de- 
cided long  l)cf()re  Cox  v.  Hickman,  8  H. 
L.  C.  208,  the  (|uestiou  of  liability  is  put 
upon  the  jirinciples  of  agency.  It  was 
held  in  Smith  v.  Craven,  where  A.,  B., 
and  C,  not  being  general  partners,  entered 
into  a  joint  speculation,  and  eacli  was  to 
contribute  a  third,  that  A.,  who  had  paid 
his  share,  was  not  liable  to  the  bankers  of 
B.  for  moneys  ailvanced  by  such  bankers 
on  the  individual  credit  of  li.,  without 
the  knowledge  of  A.,  though  such  moneys 
were  applied  in  payment  of  bills  drawn 
upon  B.  in  the  course  of  the  joint  specula- 
tion. Hca])  V.  Dobson,  15  C.  B.  n.  s. 
460,  is  to  the  same  effect.  There  a  ship 
belonging  to  A.,  with  which  he,  B.  &  C, 
had  had  prolit  and  loss  transactions,  was 
chartered  to  B.,  and  it  was  arranged  be- 
tween A.,  B.,  and  U.  that  the  ship  should 
go  to  the  southern  coast  of  this  country 
for  a  cargo  which  A.  represented  he  had 
there,  and  take  it  to  England,  on  joint 
account  of  the  three,  and  that  goods  to 
the  amount  of  i;;5000  should  be  shipped 
by  each  of  the  three  for  an  outward  cargo, 
and  sohl  on  joint  account,  the  profits  to 
be  divided  in  proportion  to  the  value  of 
the  goods  sliipped  by  each.  A.  shipped, 
among  other  things,  goods  to  the  value  of 
£1377,  which  he  obtained  from  the  plain- 
tiffs on  ci'edit.  A.  having  became  bank- 
rupt, the  plaintili's  discovered  that  the 
goods  were  shipped  as  a  joint  adventure, 
and  sued  B.  for  the  price.  It  was  claimed 
that  the  outward  cargo  having  been  the 
joint  adventure  of  the  three,  notwith- 
staniling  the  private  arrangement  between 
themselves,  they  were,  quoad  third  per- 
sons, clothed  with  all  the  authority  and 
responsibility  of  partners,  and  that  each 
of  the  three  was  liable  for  the  whole 
amount  of  the  goods  shipped  on  the  joint 
account.  Byles,  J.,  said  :  "  If  the  agree- 
ment had  been  that  each  of  the  three 
should  contribute  to  the  joint  adventure 
£3000  in  money,  instead  of  that  amount 


in  goods,  you  would  have  hardly  eon- 
tended  that  B.  would  have  been  respon- 
sible to  the  person  from  whom  A.  borrowed 
his  £3000  to  come  into  the  cniiccin." 
The  court  held  that  B.  and  C.  were  not 
liable ;  |iutting  it  again  on  the  (picstion  of 
authority  or  agency  ;  that  there  was  notli- 
ing  in  the  arrangement  to  authorize  one 
of  the  three  to  bind  the  others  as  their 
agent  in  respect  of  the  third  share  of  tlie 
cargo  which  he  undertook  to  sujiply  for 
the  joint  adventure.  The  decision  is  (piiie 
as  applicable  to  the  facts  in  Jones  v.  Fos- 
ter, 12  N.  B.  K.  607,  that  there  .M.  and  1). 
had  no  more  authority  to  purciiasc  goods 
in  his  own  tirm's  name  to  bind  V.  &  S., 
than  the  latter  had  to  make  M.  &*P. 
liable  for  moneys  which  F.  k  S.  miglit 
have  obtained,  through  their  bankers,  for 
the  payments  made  by  F.  &  S. 

In    Pennsylvania,  where,  as  in   Mas- 
sachusetts,  and   in  others  of  the  Statos, 
we  tind  so  much  sound  law,  wt;  find  the 
same  princii)le  laid  down  in  the  case  of 
Donually  v.  Ryan,   41    Pa.  St.    306,  by 
Woodward,    J.,  who  says:    "The  jjoint 
stands  as  clear  on  reason  as  on  autliority; 
for   when   no   credit  is  given  to  a  tinii, 
which,  in  law,  is  a  distinct  person  from 
the  members  who  compose  it,  wliy  should 
redress  be  sought  against  the  lirni .'    As 
well  might  a  creditor  who  had  loaned  his 
money  on  the  credit  of  an  individual,  at- 
tempt to  pursue  it  into  the  business  or 
property  of  third  persons,  and  hold  them 
responsible  to  himself."     See,  also,  Mrook 
V.  Evans,  5  Watts,  200  ;  Graelf  v.  liiteh- 
man,   5  NVatts,    454  ;  Clay  e.   Cottnll,  6 
Harris,   413;  Gibson  v.   Stone,  43  Ikrb. 
285,  2ltl  ;  Smith,  Adst.   Perry,  2'J  N.  J. 
74  ;  Stevens  v.  Faucett,  24  111.  483  ;  Faw- 
cett   V.    Osborn,    32   111.    411  ;    Macy  r. 
Combs,  15   Ind.  469  ;  Reynolds  v.  Hicks, 
19   Ind.    113;    Looniis    v.    Marslndl,  12 
Conn.  69.     in  Voorhees  v.  Jones,  2'.'  N'..'. 
270,  277,  in  a  suit  by  a  creditor  of  a  lirii, 
against  the  firm,  it  was  lield  thit  it  was 
incompetent  to  show   V)y  parol   cviili'iife 
that  the  contract  of  partnershi])  was  othir- 
wise    than    it    was    constituted    by   tlie 
written  articles.     In  Macy  i\  Comhs,  ]i< 
Ind.  469,  472,  it  was  held  that  tlic  com- 
mon reputation  and  understanding  as  to 
who  were  members  of  a  firm  was  not  lepil 
evidence.    The  evidence  received  iiv  Alliiip 
J.,  in  Jones  v.   Foster,  12  N.  B.'l!.  60?, 
and  sustained  by  the  whole  court,  is  op- 
posed to  the  proper  holding  in  VoorhiH< 
V.  Jones,  supra  ;  but  such  holding  in  Juues 


PART   VII.] 


partners'  sales. 


493 


was  held  that  they  could  not  be  sued  as  partners  on  the  bills, 
and  that  they  were  not  liable  for  goods  sold  and  delivered,  there 
being  no  distinction  between  the  bills  and  the  consideration  for 
wiiich  they  were  given. 

The  case  of  Redpath  v.  Wigg,i  was  somewhat  different  from 
Cox  V.  Hickman.  The  facts  in  Redpath  v.  Wigg  were  that  a 
trader,  carrying  on  business  as  M.  &  Co.,  ordered  goods  of  the 
|ilaiutiff,  and  before  their  delivery,  executed  an  inspectorshij)  deed 
(»f  wliich  the  defendants  were  inspectors.  The  plaintiff  afterwards 
wrote  a  note,  addressed  to  the  debtor,  informing  him  that  the 
goods  were  ready  for  delivery,  and  the  defendants  replied,  request- 
ing him  to  send  the  goods,  and  signing  "  for  AI.  &  Co."  The 
court  held  that  the  inspectorship  deed,  and  the  acts  of  the  defend- 
ants under  it,  did  not  constitute  them  principal  traders,  so  as  to 
make  tlie  debtor  only  a  servant  or  agent  of  theirs,  and  tliat  they 
were  not  liable  under  the  contract. 

A  third  case  with  elements  very  similar  to  those  in  Cox  v.  Hick- 
man and  Redpath  v.  Wigg  (^mupra}  is  Easterbrook  v.  Barker.'^ 
Hero,  under  a  deed  of  composition  under  the  English  bankruptcy 
Act,  1861,  the  debtor  assigned  his  works  and  effects  to  trustees, 
the  business  to  be  carried  on  by  him  under  their  control.  After 
this  the  debtor  continued  to  manage  the  business  under  the  direc- 
tion of  the  trustees,  paying  all  moneys  received  by  him  to  the 
banking  account  of  the  trustees  ;  who  met  at  the  works  weekly, 
inspected  the  books,  and  furnished  the  debtor  with  money  to  meet 
all  disbursements  which  would  be  required  during  the  ensuing  week 
for  wages,  materials,  etc.,  but  they  gave  him  no  power  to  pledge 
their  personal  credit.  In  an  action  against  the  trustees  for  goods 
supplied  to  the  assigned  works  during  the  period  of  their  trustee- 
ship, the  County  Court  held  that  they  were  liable ;  but,  on  appeal, 
the  Court  of  Common  Pleas  reversed  this  decision,  and,  following 
the  decisions  in  Cox  v.  Hickman,'^  and  Hullen  v.  Hharp,'*  they  held 
that  there  was  no  partnersliip  ;  and,  following  Redpath  v.  Wigg,^ 
hold  further  that  no  such  relation  as  that  of  master  and  servant, 
or  that  of  principal  and  agent  »vas  constituted  by  the  deed  between 
the  trustees  and  the  debtor  ;  that  there  was  no  liability  in  respect 
of  ostensible  authority,  for  the  credit  was  given  to  the  debtor,  and 
that  the  deed  itself  gave  the  debtor  no  authority  to  pledge  the  trus- 
tees' credit. 

Each  ostensible  partner  in  a  firm  is  its  agent  and  rcpresentaiivc 
with  reference  to  all  business  within  the  scope  of  the  partnership. 


f.  Foster  is  only  one  of  the  many  legal 
errors  with  which  that  case  abounds. 

'  L.  R.  1  Ex.  335. 

*  L.  K.  6  C.  P.  1. 


»  8  H.  L.  C.  268. 
*  L.  R.  1  C.  P.  86. 
s  L  K.  1  Ex.  335. 


'■'  \^' 


''     ll 


yf 


J    i 


k.  I 


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It 


r  I 


j,J| 


tl 


II 


.1 


f  i'. 


494 


COMMENTARIES  ON  SALES. 


[book  II, 


And  if,  in  the  conduct  ot  partnership  business,  and  with  reference 
thereto,  one  partner  makes  false  or  fraudulent  misrepresentations 
of  fact  to  the  injury  of  innocent  persons  who  deal  with  him  as 
representing  the  firm,  and  without  notice  of  any  limitations  upon 
his  general  authority,  his  partners  cannot  escape  pecuniary  re- 
sponsibility therefor  upon  the  ground  that  such  misrepresenta- 
tions were  made  without  their  knowledge.  This  is  especially  so 
when  the  partners,  who  were  not  themselves  guilty  of  wrong,  re- 
ceived and  appropriated  the  fruits  of  the  fraudulent  conduct  of 
their  associate  in  business.^ 

A  sole  surviving  partner  of  an  insolvent  firm,  who  is  himself 
insolvent,  can  make  a  valid  assignment  of  partnership  assets  for 
the  benefit  of  the  joint  creditors,  with  preference  to  some  of  them, 
and  such  assignment  is  not  void  because  of  the  fraudulent  omis- 
sion from  the  schedule  by  the  surviving  partner  of  certain  prop- 
erty which  constituted  a  part  of  the  partnership  assets,  and  was 
appropriated  by  him  to  his  own  use.  Such  fraud  does  not  affect 
the  rights  of  he  assignee  and  of  the  beneficiaries  of  the  trust  who 
were  ignorant  of  the  fraud  of  the  grantor.  If  the  assignment  was 
valid  when  executed,  no  subsequent  conduct  on  the  part  of  the 
grantor  or  the  trustee,  however  fraudulent,  can  avoid  the  deed, 
and  deprive  the  creditors,  accepting  it  in  good  faith  and  not  par- 
ticipating in  the  fraud,  of  their  rights  under  it.^ 

D.  and  1,  were  partners,  engaged  in  carrying  on  a  small  business 
in  buying  and  manufacturing  wheat  and  grain,  in  a  small  town  in 
an  interior  county  in  Indiana ;  shipping  the  flour  and  such  sur- 
plus of  the  grain  as  was  not  required  for  manufacturing,  in  a  rail! 
of  an  average  capacity  of  thirty  barrels  of  flour  per  day,  to  Indian- 
apolis and  Baltimore,  for  sale  and  immediate  delivery.  Their 
whole  working  capital  varied  from  $2000  to  $4000.  D.  carried 
on  the  business,  while  I.  resided  in  Pennsylvania,  and  rarely  vis- 
ited their  place  of  business  in  Indiana.  In  1877,  and  five  years 
subsequent  to  the  formation  of  the  partnership,  D.,  without  the 
knowledge  of  I.,  gave  orders  to  the  plaintifTs,  commission-mer- 
chants and  grain-brokers  in  Baltimore,  for  sale  of  165,000  l)ushels 
of  wheat  for  future  delivery.  These  orders  were  executed  by  the 
plaintiffs ;  the  price  amounting  to  $251,794.84.  No  grain  "vas 
shipped  by  D.  to  meet  these  sales,  and  the  plaintiffs  paid  as  differ- 
ences, $17,215.94.     In  an  action  against  I.,  as  surviving  partnei' 

Hampstead  v.  Johnston,  18  Ark.  123, 140; 
Cornish  v.  Dews,  18  Ark.  172, 181  ;  Man- 
del  V.  Peav,  20  Ark.  325,  329  ;  Hunt  r. 
Weiner,  39  Ark.  70,  75  ;  Marbury  v. 
Brooks,  7  Wheat.  656,  577  ;  Brooks  d. 
Marbury,  11  Wheat.  78,  89  ;  Toinpkin' 
V.  Wheeler,  16  Pet.  106,  118. 


»  Strang  i'.  Bradner,  11 4  U.  S.  555;  Stock- 
well  V.  United  States,  13  Wall.  531,  547 ; 
Chester  v.  Dickerson,  54  N.  Y.  1 ;  Locke  v. 
Stearns,  1  Met.  560  ;  Lothrop  v,  Adams, 
133  Mass.  471  ;  Blight  v.  Tobin,  7  T.  B. 
Mon.  612  ;  Durant  v.  Kogers,  87  111.  508. 
«  Emerson  i>.   Seuter,   118   U.    S.   3; 


PART  VII.] 


partners'  sales. 


495 


of  D.  &  I.,  for  this  sum,  it  was  claimed  for  the  defendant  that  the 
transaction  was  not  authorized  by  the  partnership  agreement, 
nor  within  the  regular  course  of  the  partnership  business,  nor 
within  its  apparent  scope.  The  court  charged  in  favor  of  the 
plaintiffs,  for  whom  the  verdict  and  judgment  were  entered.  The 
Supreme  Court,  on  error,  held  that  such  liability  did  not  arise 
from  the  partnership  agreement  between  D.  and  I. ;  nor  from  any 
implication  arising  out  of  the  previous  transactions  between  them 
and  the  plaintiffs ;  and  that  the  court  below  was  in  error  in  hold- 
ing, and,  in  effect,  directing  the  jury,  that  the  business  of  dealing 
in  grain  involved,  as  a  matter  of  law,  as  an  essential  characteris- 
tic of  the  business,  not  only  dealing  in  grain  on  hand  for  present 
delivery,  for  cash  or  on  credit,  but,  also,  dealing  in  futures  by 
means  of  contracts  of  sale  or  purchase  for  purposes  of  specu- 
lating upon  the  course  of  the  market.  The  judgment  was  reversed 
and  a  new  trial  was  ordered.^ 


Wft 

npM 

w!f  'i:  i ; 

M'fIv 

j.!*   1       i;'     i 

iiii 

[ff 

i  1:  I 

(         ■    1 

•  ■  ff'  s 

!i ; 

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r   '   '  i     % 

V' ' ' 

w 


i 


1  Irwan  v.    Williai,    110    U.   S.    499. 
Two  (juestions  of  iiiiportauce  are  involved 
ill  this  case,  one,  as  regards  the  genera! 
doctrine   of    a<;ency   as    applicable  to    a 
partnership  ;   the  other,  as  to  dealing  in 
"futures."    The  court  below  assumed,  be- 
cause I.  &  D.  were  dealers  in  grain,  that, 
tiicrcfore,   all   dealings  in   grain   by  one 
member  of  the  firm,  in  the  name  of  the  firm, 
would  bind  the  firm.     The  United  States 
Suiireme  Court,  in  dealing  with  this  fallacy, 
said  :  "In  this,  we  think,  there  was  error. 
The  liability  of  one  partner,  for  acts  and 
contracts  done  and  made  by  his  co- partners, 
without  his  actual  knowledge  or  assent,  is 
a  question  of  agency,     if  the  authority  is 
ilenied  by  the  actual  agreement  between 
the  partners,  with  notice  to  the  party  who 
claims  under  it,  there  is  no  partnership 
obligation.     If  the  contract  of  partnership 
is  silent,  or  the  party  with  whom  the  deal- 
ing 1ms  taken  i)lace  has  no  notice  of  its 
limitations,  the  authority  for  each  trans- 
action may  be  implied  from  the  nature  of 
the  business,  according  to  <■>>•>  usual  and 
ordinary  course  in  which  i,   i..  carried  on, 
hy  those  engaged  in   it  in   the   locality 
which  is  its  s<?at,  or  as  reasonably  neoe.  - 
sary  and  fit  for  its  successful  prosecution. 
If  it  cannot  be  found  in  that,  it  may  still 
he  inferred  from  the  actual  though  excep- 
tional course  and  conduct  of  the  business 
of  the  partnership  itself,  as  personally  car- 
ried on  with  the  knowledge,   actual  or 
Pfesumed,  of  the   partner  sought  to  be 
''liarged.     In  the  })rcsent  case  the  partner- 
ship agmement  caimot  affect  the  ([uestion, 
hecause  it  is  not  claimed,  on  the  one  hand, 
"lat  it  conferred  actual  authority  to  make 
*lie  transactions  in  dispute,  nor,  on  the 
<*ther,  that  the  defendants  in  error  had  any 


notice  of  its  limitations.  And  so,  too,  any 
implication  that  might  have  arisen  from  a 
previous  cour.se  of  business  of  this  char- 
acter, carried  on  by  Davis  with  the  knowl- 
edge of  Irwin,  must  be  rejected,  for  it  is 
not  claimed  that  any  foundation  in  proof 
existed  for  it.  The  only  remaining  ground 
for  the  implied  authority  by  which  it  can 
be  claimed  that  Irwin  was  lx)und  by  the 
contracts  of  his  partner,  is  that  arising 
from  the  intrinsic  nature  of  the  business 
in  which  the  partnership  was  actually 
engaged,  or  from  the  usual  and  ordinary 
course  of  conducting  it  at  the  locality 
where  it  was  carried  0!i.  What  the  nature 
of  that  business  in  each  case  is,  what  is 
neces.sary  and  proper  to  its  successful 
prosecution,  what  is  involved  in  the  usual 
and  ordinary  coui  •■  of  its  management  by  • 
those  engaged  in  iv,  at  the  i)lace  and  time 
where  it  is  carried  on,  are  all  questions  of 
fact  to  be  decided  by  the  jury,  from  a  con- 
sideration of  all  the  circumstances  which, 
singly  or  '.-.i  combination,  affect  its  char- 
acter or  determine  its  ])eouliarities ;  and 
from  them  all,  giving  to  each  its  due 
weight,  it  is  its  province  to  a.sccrtain  and 
say  whether  the  transaction  in  question  is 
one  which  those  dealing  with  the  firm  had 
reason  to  believe  was  authorized  by  all 
its  members.  The  difficulty  and  duty  of 
drawing  the  inference  suitable  to  each 
case  from  all  its  circumstances  cannot  be 
avoided  or  supplied  by  affixing  or  ascrib- 
ing to  the  business  some  general  name, 
and  deducing  from  that,  as  a  matter  of 
law,  the  riglits  of  tlie  public  and  the 
duties  of  flie  partners.  Dealing  in  grain 
is  not  a  technical  phrase  from  which  a 
court  can  properly  infer  as  matter  of  law 
authority  to  bind  the  firm  in  every 


I  ■:.  11 


.-,    I 

• 

f<: 

^ 
i 

*r'. 

ft 

1     ,     ■:    .    Ul    . 

^i 

496 


COMMENTARIES  ON   SALES. 


[book  II. 


The  plaintiff,  having  been  a  clerk  in  the  defendant's  firm,  en- 
tered into  a  verbal  agreement  with  him  for  a  share  of  profit  and 
loss  in  the  proportion  of  one-lifth  to  the  plaintiff,  and  four-liftlis 
to  the  defendant,  it  being  stipulated  that  the  building  in  which  tlie 
business  was  carried  on  should  remain  the  property  of  tlie  de- 
fendant. The  plaintiff  alleged  that  the  agreement  was  for  a  part- 
nership, and  claimed  a  dissolution  and  an  account  of  assets.  Tlie 
defendant  denied  the  partnership,  and  alleged  that  the  j)lainti{i' 
was  only  manager.  Held,  that  under  the  facts  proved,  the  agree- 
ment for  sharing  profit  and  loss  in  certain  proportions  confoned 
all  the  rights  of  partnership  inter  se,^  subject  to  the  stipulation  as 
to  the  buildings  remaining  the  property  of  one  partner  ;  that  the 
defendant  could  not  maintain  that  the  legal  effect  of  partnorsliip 
should  not  follow  such  a  contract,  and  that  the  plaintiff  had  a 
right  to  a  dissolution  and  sale  of  the  assets  of  tlie  partnership,  in- 
cluding the  good-will.  But  as  to  the  good-will,  it  was  only  that 
whicli  could  be  sold  by  its  being  quite  understood  that  the  mills 

tract  is  only  valid  wlioii  the  parties  really 
intend  and  a^jroo  that  the  goods  arc  to  be 
delivered  by  the  seller  and  tli<!  price  to  \w. 
paid  by  the  buyer  ;  and,  if,  under  guise  of 
such  a  contract,  the  real  intent  lie  merely 
to  speculate  in  the  rise  or  fall  of  ]iiices, 
and  the  goods  are  not  to  be  delivered,  lint 
one  party  is  to  pay  to  the  other  the  difTer- 
ence  between  tlie  contract  price  iukI  the 
market  price  of  the  goods  at  .  le  date 
fixed  for  executing  the  contract,  then  the 
whole  transaction  constitutes  nothiiii^more 
than  a  wager,  and  is  null  and  void ;  all 
wagering  contracts  being  generally  hold  in 
this  country  to  be  illegal  and  void  as 
against  public  policy.  Dickson's  Exec- 
utor V.  Thomas,  97  I'a.  278  ;  (!n'!:!ory  r. 
Wendell,  40  Alich.  432;  Lyon  v.  Ciillieit- 
son,  83  111.  33  ;  Melchert  i'.  Ainerican 
Union  Tel.  Co.,  3  McCrary,  r)21  ;  11  Fed. 
Rep.  193,  and  note  ;  Barnard  r.  Bock- 
haus,  52  Wis.  593  ;  Kingsburv  v.  Kirwan, 
77  N.  Y.  612  ;  Story  v.  Salomon,  71  X. 
Y.  420;  Love  i'.  Harvey,  114  Miss.  80. 
In  tlngiand,  it  is  held  that  the  coiitracts, 
although  wagers,  were  not  void  at  cdimnon 
law.  But  this  has  been  altered  bv  statute, 
8  &  9  Vic.  e.  109,  sec.  18,  dcelaiiiif,'  that 
they  "shall  be  null  and  void,"  and  mak- 
ing such  wagering  contracts  or  ugreciuems 
non-enforceable  in  courts  of  law  and  iMjuity. 
It  has  been  held  in  England,  that,  the  stat- 
ute ha.s  not  made  such  contract  illeijiil,  hut 
only  non-enforceable.  Tliaekcr  v.  Ilnnly, 
4  Q.  B.  Div.  685.  We  shall  consider  the 
question  fully  in  a  later  voluiiie  of  this 
work. 

1  See  Syers  v.  Syers,  I  App.  Cas.  15<| 
Greenham  v.  Gray,  4  Ir.  Com.  L.  li.  501; 
Pooley  V.  Driver,"  5  Ch.  Div.  458. 


irrespective  of  its  circumstances  ;  and  if, 
by  usage,  it  has  ae(pured  a  fixed  and  defi- 
nite meaning,  as  a  word  of  art  in  trade, 
that  is  a  matter  of  fact  to  bo  established 
by  proof  and  found  by  a  jury.  It  may 
mean  one  thing  at  Brazil  In  Indiana, 
another  at  Baltimore.  It  may  not  be  the 
same  when  standing  alone  with  what  it  is 
in  connection  with  a  llouring-mill  in  a 
small  interior  town.  It  may  mean  deal- 
ing in  grain  on  hand  for  present  delivery 
for  cash  or  on  credit,  or  it  may  mean,  also, 
dealing  in  futures  by  means  of  contracts 
of  sale  or  purchase  for  purposes  of  specu- 
lating upon  the  course  of  the  market.  We 
are  quite  clear  that  the  latter  feature  of 
the  business,  as  it  may  sometimes  be  pros- 
ecuted, is  not,  as  matter  of  law,  an  essen- 
tial characteristic  of  every  business  to 
which  the  name  of  dealing  in  grain  may 
he  properly  assigne<l.  And  yet  this  is  dis- 
tinctly what  in  the  present  case  was  given 
to  the  jury  as  the  law,  and  in  that  respect 
the  Circuit  Court  erred."  This  is  so  clear 
and  accurate  an  exposition  of  the  law  in 
the  matter,  and' so  thoroughly  harmonizes 
with  the  late  well-decided  Knglish  cases, 
and  with  the  views  we  have  expressed  in 
this  Part,  that  we  have  quoted  thus  fully 
from  the  judgment. 

The  other  point  involved  in  the  case  is 
as  to  whether  the  contract  was  void  as 
a  wagering  or  gambling  contract.  The 
court  laid  it  down  as  the  generally  ac- 
cepted doctrine  in  this  country,  that  a 
contract  for  the  sale  of  goods,  to  be  deliv- 
ered  at  a  future  dav  is  valid,  even  though 
the  seller  has  not  the  goods,  nor  any  othci 
means  of  getting  them  than  to  go  into  the 
market  and  buy  them ;  but  such  a  cou- 


DOK  II. 

•in,  en- 
)[it  and 
ir-lil'ths 
lich  the 
the  de- 
a  parl- 
H.    Tlie 
plaintiff 
c  airrec- 
oul'crrcd 
lation  as 
that  the 
•tucrsliip 
ff  had  a 
rship,  in- 
only  that 
the  mills 

lartios  roally 
Ills  iivi'  tu  be 
,!  price  to  \» 
mler  guise  oi 
nt  bo  merely 

all  of  vii*^'*" 
li'livereil,  Imt 
er  the  dilTer- 
ivioe  iind  the 
at  11!  'lat'-' 
act,  tlioii  tlio 
Tiothinninovp 
ml  voiil ;  all 

■rally  hfl^l  i" 
[and"  void  as 
Iksou's  Kxec- 
(Iretjnry  i'. 
,n  I'.  Ciillien- 
I'    American 
[.'21 ;  U  Fea. 
,1  ,..  Bock- 
|-v  V.  Ivirwan, 
onion,  71  ^' 
4    M;iss.  80. 
he  contracts, 
1  at  common 
i.a  bv  statute, 
U^Umn  tlwt 
ja,"  uudraak- 
,y  jiifrcemeius 

|\v  anil  cci«i'y' 
;hat,  the  Stat- 

■t  illonal.  W 

er  V.  limply' 

,■  consider  tlie 

jhune  of  this 
np.  Cas.  15<; 

II.  L.  R.  501; 
1458. 


PART   VII.] 


partners'  sales. 


497 


aud  premises,  an  any  other  exclusive  property  of  the  defendant, 
were  not  to  be  interfered  with,  and  not  to  be  sold,  and  that  the 
defendant  would  be  entirel}-  at  liberty,  whoever  bought,  to  carry 
on  his  business  at  the  mill  in  his  own  name,  as  long  as  and  in  such 
manner  as  he  liked.  The  sale  was  to  bo  conducted  by  an  inde- 
pendent firm  of  solicitors,  with  power  to  either  partner  to  bid. 
The  sale  was  to  be  of  the  business  as  a  going  concern,  but  sub- 
ject to  the  defendant'jj  rights  and  ownership  as  named.  A  doubt 
was  expressed  by  the  court,  if,  under  such  a  state  of  facts,  and  so 
treated,  there  would  be  any  good-will  to  sell.  A  doubt  as  to 
whetlier  there  was  any  going  concern  to  sell  would  be  equally  as 
well  founded.^ 

Where  several  parties  were  jointly  interested  in  the  profit  and 
loss  of  a  series  of  voyages  of  a  vessel,  of  which  one  of  them  was 
master  and  supercargo,  it  was  held  by  the  United  States  Supreme 
Court  that,  though  a  stranger  could  not  be  introduced  as  a  part- 
ner during  the  pendency  of  these  voyages,  yet,  after  the  last  voy- 
age had  been  terminated,  the  interest  of  one  party  might  be  as- 
signed, and  the  assignee  could  maintain  a  bill  for  an  account 
against  the  master  and  supercargo,  joining  the  other  proper 
partics.2 

The  entire  property  and  assets  of  a  partnership  were  conveyed 
to,  and  vested  in,  a  corporation,  subject  to  the  debts  and  liabilities 
of  the  partnership.    The  debts  and  liabilities  of  the  firm  tliere- 


1  Pawsey  v.  Armstrong,  18  Ch.  D.  6''8. 

^  Mathi'wson  v.  Clarke,  6  How.  1'22. 
I  The  case  decides  that  while  one  partner 
cannot  sell  his  interest  in  the  firm,  so  as 
I  to  constitute  the  jnirchaser  a  member  of 
firm,  yet  he  may  dispose  of  his  in- 
Iterest  in  the  property  of  the  firm  to  a 
stnnger,  wlio  will  take  the  ownershii)  of 
I  Ms  assignor.  In  Nicoll  v.  Mumford,  4 
I  Wins.  Ch.  525,  it  was  held  that  an  as- 
ii?ni'e  or  separate  creditor  of  one  partner 
1 1^  entitled  only  to  the  share  of  sucn  part- 
ner, after  a  settlement  of  the  accounts, 
I  W'l  after  all  the  just  claims  of  the  other 
I  partner  are  satisfied.  The  interest  of  each 
Jprtner  is  his  share  in  the  surplus,  subject 
[''all  purtiier.ship  accounts  ;  and  that  in- 
I'wst  or  surplus  only  is  liable  to  the  as- 
liipiee  or  separate  creditors  of  such  partner 
jtlaiming  either  by  assignment  or  under 
|"Mtttion.  As  between  one  partner  and 
Ithe  a&signees  or  separate  creditors  of  the 
lother.they  cannot  affect  the  joint  property 
jl"?  further  than  the  partner  whose  as- 
■•pees  or  creditors  they  are  could  have 
l»ffected  it.  This  is  the  settled  rule  in 
l*ws  of  partnership  property ;  «nd  the 
Iwtrine  of  Lord  Hardwicke  in  the  lead- 
Incase  of  West  V.  Skip,  1  Ves.  Sen.  239, 

TOL.  I.  8S 


has  received  a  constant  sanction  in  suc- 
ceeding cases  both  in  Knglaiid  and  in  this 
country.  Fox  v.  Hanbury,  Cowp.  445  ; 
Taylor  r.  Fields,  4  Ves.  3!)6  ;  Dutton  v. 
Morrison,  17  Ves.  193;  Young  v.  Keighley, 

15  Ves..  557;  Marquand  v.  The  New  York 
Manuf.  Co.,  17  Johns.  525  ;  Church  v. 
Knox,  2  Day,  514;  IVirce  v.  Jackson, 
6  Mass.  242 ;  Wilson  v.  Curino,  2  Johns. 
280;  Moody  f.  Paint,  2  Johns.  Ch.  548; 
Knox  V.  Simmons,  4  Yeates,  477;  Wallace 
V.  Patterson,  2  ILir.  &  McH.  4fi3  ;  Harri- 
son V.  Sterry,  5  Cranch,  289  ;  McComb  v. 
Dunch,  2  Dall.  73.  The  sale  of  the  inter- 
est of  a  partner  in  the  partnership  effects 
is  made  subject  to  the  partnership  debts, 
and  is  in  effect  only  a  sale  of  the  undefined 
surplus  interest  of  the  partner  after  the 
partnership  debts  are  paid.  Woodrop  v. 
Ward,  3  Dess.  203;  McCuUoch  v.  Dashiell, 
1  Harr.  &  G.  96;  Harber  v.  Hartford  Hank, 
9  Conn.  407;  Witter  «.  Richards,  lOConu. 
37;  Wilder  v.  Keeler,  3  Paige,  167;  Lyn- 
don  V,  Gorham,  1  Gall.  367;  Murray  i*. 
Murray,  5  Johns.  Ch.  73 ;  In  re  Smith, 

16  Jolms.  102 ;  Wiston  v.  Ewing,  1  Ala. 
N.  ;.  129j  Scrugnam  v.  Carter,  12  Wend. 
131 ;  Doner  v.  Stanffer,  2  Pa.  198. 


!•   ,:    ,'•  i 


498 


COMMENTARIES  ON  SALES. 


[book  II, 


upon  became  the  debts  and  liabilities  of  the  corporation.     Tho 
property  ceased  to  be  partnership  property,  and  became  consoli- 
dated in  a  unity  of  interest  in  the  corporation.     Tlie  partners 
ceased  to  be  partners,  and  became  holders  of  shares  in  the  capi- 
tal stock  of  the  company.*    Their  lien  as  partners  ceased  wlieii 
their  character  of  stoclcholders  began.    Tbe  constitution  of  the 
corporation  and  the  transfer  to  it  of  the  property  being  autliorized 
by  law,  and  being  intended  to  settle  and  extinguish  tiie  partnei- 
ship  equities,  and  to  place  the  concern  on  a  new  footing,  effected 
that  object ;  the  parties  who  were  entitled  to  the  partnership  equi- 
ties being  those  who  organized  the  corporation,  and  made  the 
conveyance  to  it.     It  was  not  the  corporation  alone  which  was 
concerned  in  the  transfer,  but  the  creditors  also,  who  trusted  it 
after  it  was  formed,  ?nd  who  stand  in  the  position  of  bond  fidn 
claimants  against  its  property  and  assets.     While  they  may  not 
be  able  to  claim  any  precedency  over  the  former  partners  haviiijr 
debts  due  to  them,  they  stand  on  an  equal  footing  with  thcni.   It 
was  therefore  held,  that  a  lien  by  owners  of  a  portion  of  the  part- 
nership assets,  which  existed  against  the  partnership  property, 
subject  to  the  debts  then  due,  prior  to  the  organization  of  tiie 
corporation,  had  been  lost  by  the  conveyance  of  the  parties  under 
an  act  of  the  legislature,  and  ceased  to  follow  tlie  partnership 
property  in  the  hands  of  the  co  poration,  and  had  no  priority  over 
other  claim  against  such  propeity  which  accrued  after  the  organ- 
ization of  the  corporation.* 


1  Where  parties  to  a  contract  hold  them- 
selves out  to  the  other  contracting  parties 
as  partners,  though  they  may  sign  a  con- 
tract as  a  corporation,  they  may  still  be 
sued  as  partners,  even  tiiough  as  such 
partners  they  are  carrying  on  business  in 
the  name  of  the  corporation.  McGowan 
V.  American  Tan  Bark  Co.,  121  U.  S.  575. 
See  Siiiionton  v.  Sibley,  122  U.  S.  220, 
where  one  occupied  the  dual  position  as 
a  partner  and  creditor  of  a  firm,  under  a 
special  agreement  by  which  the  othT 
members  of  the  firm  became  his  debtors, 
as  well  as  his  copartners,  in  connection 
with  the  sale  by  him  to  them  of  a  joint 
interest  in  railway  stock  and  bonds. 

2  Francklyn  v.  Sprague,  121  U.  S.  215. 
See  Hoyt  v.  Sprague,  103  U.  S.  613. 
These  cases  are  consistent  with  the  deci- 
sions in  Nerot  v.  Burniird,  4  Russ.  247, 
and  Payne  v.  Hornby,  25  Beav.  280,  which 
hold  that  where  the  business  is  carried  on 
with  the  consent  of  the  outgoing  partner, 
or  the  representative  of  the  deceased  part- 
ner, debts  incurred  during  that  period 
have  a  preference  over  the  partnership 
lien  upon  all  newly  acquired  property. 


The  principle  is  thus  laid  down  by  Rom- 
illy,  M.  R.,  in  Payne  v.  Hornb)%  25  Beav. 
286:  "The  surviving  partner  may  by  ar- 
rangement give  the  executors  of  the  de- 
ceased partner  a  mortgasf  on  the  partner- 
ship stock,  in  which  case  tliey  ncnuire  the  I 
usual  rights  of  mortgagees  to  the  stock  stib- 1 
sequently  acquired ;  but  if  this  be  not  done,  I 
the  mere  fact  that  their  testator  was  a  part-  j 
ner  at  the  time  of  his  decease  ilocs  not  give  j 
them  a  lien.  ...  If  the  exeuiitois  tile  a  j 
bill  for  winding  up  the  partnership,  but  j 
do  not  apply  for  a  receiver  or  nii  injum-l 
tion,  I  apprehend  that  if  a  v:iriatioii  takes! 
place  in  the  stock   and  gooiis  while  thel 
business  is  carried   on   by  the  siirvirinir| 
partner  alone,  and  fresh  goods  aie  broui;litl 
into  the  business,  and  he  becomes  bauk-l 
rupt,  they  belong,  in  the  first  plaoe,  to  tliej 
creditors  who  have  been  created  by  thel 
subsequent  dealing,  and  not  to  the  credit-I 
ors  of  the  old  partnership  ;  for  it  wasthj 
duty  of  the  executors  iu  that  case  to  com 
here  at  once  to  obtain  a  receivtr,  aiid  pf* 
vent  that  course  of  dealing  from  going  onj 
If  it  were  not  so  it  would  be  sanctioninj 
the  commission  of  a  fraud  against  all  sub^ 


..  Tho 
consoli- 
partncrs 
;hc  capi- 
}d  when 
X  of  tho 
ithorized 

pai'tncv- 
,  effected 
ihip  cqm- 
made  the 
hich  was 
trusted  it 

bond  ji'/f 
,'  may  not 
n-3  havin? 

them.  It 
,f  the  part- 
)  property. 
ion  of  tbe 
.rtics  under 
partucrship 
riority  over 

the  organ- 


PART   VII.] 


partners'  sales. 


499 


A  question  arose  in  Drennen  v.  London  Assurance  Company,^ 
and  again,  in  the  same  case,^  under  a  policy  of  insurance  contain- 
ing a  provision  that  the  policy  should  become  void  if  the  property 
were  sold,  or  transferred,  or  a  change  take  place  in  its  title  or 
possession.  The  court  held  that  an  agreement  between  the  as- 
sured, a  firm,  and  A.,  that  the  latter  should  pay  the  former  f  10,000 
and  have  a  share  in  the  profits  of  the  business,  was  not  a  sale  or 
transfer  of  the  property  of  the  firm,  as  A.,  although  he  was  to  par- 
ticipate in  the  profits  arising  from  the  management  of  particular 
property,  was  not  to  become  a  partner  with  the  others,  and  did 
not  acquire  such  an  interest  in  the  property  itself  as  to  effect  a 
change  in  its  title.^ 

There  may  be  cases  in  which  the  holding  out  of  one's  self  as 
a  partner  in  a  firm  has  been  so  public  and  so  long  continued  as 
to  justify  the  inference,  as  matter  of  fact,  that  one  dealing  with 
the  [tartnership  knew  it  and  relied  upon  it,  without  direct  testi- 
mony to  that  effect;  but,  as  a  general  rule,  a  person  who  is  not  in 
fact  a  partner,  who  has  no  interest  in  the  business  of  the  partner- 
ship, and  does  not  share  in  its  profits,  and  is  sought  to  be  charged 
for  its  debts  because  of  having  held  himself  out,  or  permitted 
himself  to  be  held  out,  as  a  partner,  cannot  be  made  liable  upon 
contracts  of  the  partnership,  except  with  those  who  have  con- 
tracted with  the  partnership  upon  the  faith  of  such  partnership.* 


sequent  and  separate  creditors,  who  would 
be  acting  under  the  belief  that  they  were 
dealing  with  a  person  who  would  be  able 
from  his  stock-in-trade  to  pay  their  debts, 
but  who,  in  truth,  held  uo  stock  of  his 
own." 

1  113  U.  S.  51. 

'  London  Ass.  Co.  v.  Drennen,  116 
U.  S.  461. 

'  The  court  held  that  mere  participa- 
tion in  ]n'olits  would  give  no  sucli  interest 
in  the  property  contrary  to  the  real  inten- 
tion of  the  parties.  Persons  cannot  be 
made  to  assume  the  relation  of  partners, 
as  between  themselves,  when  their  purpose 
is  that  no  partnership  shall  exist.  There 
is  no  reason  why  they  may  not  enter  into 
»ii  agreement  whereby  one  of  them  shall 
participate  in  the  profits  arising  from  the 
management  of  particular  property  with- 
out his  becoming  a  jwrtner  with  the  oth- 
ffs,  or  without  his  acquiring  an  interest 
in  tlie  ]iro|)erty  itself,  so  as  to  eftiect  a 
change  of  title.  London  Ass.  Co,  v.  Dren- 
Mn,  116  U.  S.  461,  472. 

One  of  several  joint  owners  may  trans- 
'er  his  interest  in  insured  property  to  the 
others  without  avoiding  the  policy.  Lock- 
»ocd  V.  Middlesex  Mut.  Ass.  Co.,  47  Conn. 
553, 664.  But  any  process  by  which  a  new 
puty  to  the  contract  is  introduced,  by 


which  the  insured  shifts  the  moral  hazard 
from  himself  to  a  stranger,  creates  a  new 
contract  and  a  new  relation  which  the  com- 
pany has  not  consented  to  assume.  Malley 
V.  Ins.  Co.,  51  Conn.  222  ;  Hoffraau  v.  Ins. 
Co.,  32  N.  Y.  405  ;  Burnett  i-.  Ins.  Co.,  46 
Ala.  11  ;  Pierce  v.  Ins.  Co.,  50  N.  II.  2y7  ; 
West  V.  lus.  Co.,  27  Ohio  St.  1  ;  Uix  v. 
Ins.  Co.,  22  111.  272  ;  Barnes  i;.  Ins.  Co., 
51  Me.  110  ;  Ins. Co.  v.  Ross,  23  Ind.  179; 
Fiulev  V.  Ins.  Co.,  30  Pa.  311  ;  Ins.  Co. 
V.  Kiker,  10  Mich.  279  ;  Dey  v.  Ins.  Co., 
23  Barb.  623 ;  Wood  v.  Ins.  Co.,  31  Vt. 
552;  Keeler  v.  Ins.  Co.,  16  Wise.  650; 
Ins.  Co.  V.  Hau.slein,  60  111.  521  ;  Lappiu 
V.  Ins.  Co.,  58  Barb.  325  ;  Dreher  v.  Ins. 
Co.,  18  Mo.  128;  Savage  d.  Ins.  Co.,  62 
N.  Y.  602 ;  Pindar  v.  Ins.  Co.,  47  N.  Y. 
114 ;  Briggs  v.  Home  Ins.  Co.,  88  N.  C. 
141  ;  Oakes  v.  Ins.  Co.,  131  Mass.  164. 

*  Sun  Insurance  Co.  v.  Kountz  Line, 
122  U.  S.  583;  Thompson  v.  First  National 
Bank  of  Toledo,  111  U.  S.  529,  636; 
Briggs  V.  Vanderbilt,  19  Barb.  222  ;  Bon- 
steel  V.  Vanderbilt,  21  Barb.  26.  See 
cases  where  there  is  a  community  of  in- 
terest, creating  the  partnership  liability. 
Froniart  v.  Coupland,  2  Bing.  170;  Green 
t>.  Beesley,  2  Bing.  N.  C.  108 ;  Champion 
V.  Bostwick,  n  Wend.  671;  18  Wend. 
175 ;  Patterson  v.  Blanchard,  6  Barb.  637; 


'1    .' 


1 

I 
f 

t  > 


I 


m-  I 


'  ^ 


!   t    ' ; 


[^1 


!.  i' 


i  1, 


600 


COMMENTARIES  ON  SALES. 


[book  II. 


Even  though  a  partnership  is  not  dissolved,  if  one  partner  al- 
lows the  other  to  appropriate  the  partnership  property  to  pay  hiij 
individual  debt,  such  appropriation  is  good  as  against  the  credit- 
ors of  tlie  firm ;  such  creditors  having  at  the  time  no  specific  lieu 
upon  the  property,  and  no  trust  upon  it  which  they  can  enforce. 
It  is  only  necessary  that  the  disposition  of  the  property  should  bo 
bond  fide  on  the  part  of  the  partners  and  the  assignee  of  the  prop- 
erty, and  without  any  intent  to  hinder  or  delay  the  creditors  of 
the  firm.*  If,  before  the  interposition  of  the  court  is  asked,  the 
property  has  ceased  to  belong  to  the  partnership ;  if  by  a  bond  fide 
transfer  it  has  become  the  several  property  either  of  one  partner 
or  of  a  third  person,  the  equities  of  the  partners  are  extinguished, 
and,  consequently,  the  derivative  equities  of  the  creditors  are  at 
an  end.2  Where  one  partner,  with  the  consent  of  his  co-partner, 
receives  goods  of  the  firm  and  is  charged  therewith,  he  becomes 
the  owner  of  the  goods,  and,  in  good  faith,  can  make  a  valid  as- 
signment of  them.^ 

In  Davis  v.  Patrick,*  the  manager  of  an  English  company, 
proprietors  of  a  silver  mine  in  Utah,  was  held  liable,  under  the  in- 
structions of  the  judge  of  the  Circuit  Court,  as  principal ;  but  the 
judgment  of  the  court  was  reversed,  the  plaintiff's  contract  having 
been  formerly  made  with  the  company,  and  not  with  the  defend- 
ant, and  the  evidence  showing  that  the  defendant  was  not  the 
principal,  nor  a  partner  with  the  company,  but  was  its  agent  and 
manager,  altbough  he  was  to  receive  out  of  the  profits  of  the  busi- 
ness payment  of  moneys  due  to  him  by  the  company.^ 


1  Seld.  186.  In  Dickinson  v.  Valpy,  10 
B.  &  C.  128,  140,  Parke,  J.,  saya:  "No 
person  can  be  fixed  with  liability  on  tlie 
ground  that  he  has  been  held  out  as  a 
partner,  unless  two  things  concur,  viz.  : 
nrst,  tho  alleged  act  of  holding  out  must 
have  been  done  either  by  him  or  by  his 
consent ;  and,  secondly,  it  must  have  been 
known  to  the  person  seeking  to  avail  him- 
self of  it.  In  the  absence  of  the  first  of 
these  requisites,  whatever  may  have  been 
done  cannot  be  imputed  to  the  person 
sought  to  be  made  liable  ;  and  in  the  ab- 
sence of  the  second,  the  person  seeking  to 
make  him  liable  has  not  in  any  way  l}een 
misled."  See  Mclver  v.  Humble,  16  East, 
169,  174,  176  ;  Carter  i;.  Whalley,  1  B.  & 
Ad.  11;  Pott  V.  Eyton,  3  C.  B.  32,  39; 
Martyn  v.  Gray,  14  C.  B.  n.  s.  824,  839; 
Edmundson  v.  Thompson,  8  Jur.  n.  s. 
235 ;  Benedict  v.  Davis,  2  McLean,  347; 
Hicks  V.  Cram,  17  Vt.  449;  Fitch  v.  Har- 
rington, 13  Gray,  469;  Wood  v.  Pennell, 
51  Me.  52 ;  Sherrod  v.  Langdon,  21  Iowa, 
518;  Kirk  v.  Hartman,  63  Pa.  97;  Hefner 
V.  Palmer,  67  111.  161 ;  Cook  r.  Perhyn 


Slate  Co.,  36  Ohio  St.  135 ;  Uhl  v.  Har- 
VKV.  7  Ind.  26:  CcMitral  City  SavinjjM  Bank 
r.  Walker,  66'N.  Y.  424. 

1  Howe  V.  Lawrence,  9  Cush.  553; 
Locke  V.  Lewis,  124  Mass.  1 ;  Ex  jiarti 
Ruffin,  6  Ves.  127;  Ex  parte  Fell,  10  Ves. 
347;  £x  j9ar<e  Williams,  11  Vcs.  3;  Et 
parte  Rowlandson,  1  Rose,  416;  Campbell 
V.  Mullett,  2  Swans.  575;  Allen  v.  Center 
Valley  Co.,  21  Conn.  130,  137;  Fersonf. 
Monroe,  1  Fost.  462,  469. 

»  Case  V.  Beauregard,  99  U.  S.  119, 
125  ;  Fitzpatrick  v.  Flanagan,  106  II.  S. 
648,  654  ;  Schmidlapp  v.  Curric,  55  Miss. 
597;  Kimball  v.  Thompson,  13  Mete.  233; 
Ladd  V.  Griswold,  9  111.  25;  Smith  r.  Ed- 
wards, 7  Humph.  106  ;  Robb  v.  Madge, 
14  Gray,  534  ;  Baker's  Appeal,  21  Pa.  St. 
76  ;  Sigler  v.  Knox  County  Bank,  8  Olno  | 
St.  511;  Wilcox  V.  Kellogg,  11  Ohio,  394; 
Eldridge  v.  Phillipson,  58  Miss.  270;  An- 
derson «;.  Tompkins,  1  Brock.  456, 460. 

*  Huiskamp  v.  Moline  Wagon  Co.,  121 
U.  S.  310. 

*  122  U.  S.  138.  - 
6  See  MoUwo  v.  Court  of  Wards,  L  B. , 


PART  VII.j 


PARTNERS*   SALES. 


6.  Fiduciary  Relations  of  Partners. 


501 


Among  the  other  incidents  common  to  co-partners,  as  to  prin- 
cipals and  agents,  is  this,  that  as  far  as  a  partner  stands  in  respect 
to  his  co-partner,  or  a  principal  to  his  agent,  in  a  fiduciary  rela- 
tion, the  law,  as  between  trustee  and  cestui  que  trust,  applies  alike 
to  partners  and  agents.  We  deal  with  this  question  as  it  applies 
to  the  usual  cases  of  principals  and  agents  in  the  next  Part,  con- 
fining our  consideration  of  the  question  here  to  matters  affecting 
the  rights  and  powers  of  co-partners. 

Two  principles  with  relation  to  the  doctrine  of  principal  and 
agent  have  been  recognized  from  the  earliest  times.  One  is,  that 
an  cigcnt  cannot  legally  buy  his  own  goods  for  his  principal ;  tlie 
other,  that  an  agent, employed  to  sell,  cannot  himself  purchase  the 
goods  of  his  principal.  If  he  should  do  so,  and  thereby  make  a 
profit,  his  principal  may  either  repudiate  the  transaction  alto- 
gether, or,  adopting  it,  may  claim  for  himself  the  benefit  made  by 
his  agent.  This  rule  has  been  repeatedly  applied  where  the  trans- 
action was  perfectly  bond  fide.  It  is  founded  on  this  principle, 
that  an  agent  will  not  be  allowed  to  place  himself  in  a  situation, 
which,  under  ordinary  circumstances,  would  tempt  a  man  to  do 
that  which  is  not  the  best  for  his  principal,  and  it  is  the  plain 
duty  of  every  agent  to  do  the  best  he  can  for  his  principal.^ 


<  P.  C.  419  ;  Cassidy  v.  Hall,  97  N.  Y. 
159.  In  the  case  of  Davis  i».  Patrick,  122 
U.  S.  138,  150,  the  relation  between  the 
defendant  and  the  company  was  strictly 
that  of  creditor  and  debtor,  and  not  that 
of  partners.  The  company  were  the  owners 
of  thfl  mine,  and  the  fact  that  tlie  defend- 
ant was  to  receive  payment  of  moneys  due 
him  out  of  the  profits  did  not  constitute 
him  a  partner  with  the  company.  As 
we  have  observed  in  effect  iu  a  previous 
note  in  this  Part,  if  it  did,  then,  on  the 
same  principle,  creditors  generally  of  a 
firm  receiving  payment  of  debts  due  them 
hy  the  firm  out  of  the  profits  should  be 
held  liable  as  partners.  Cox  v.  Hickman, 
8  H.  L.  Cas.  268,  and  the  cases  following 
it,  established  a  more  reasonable  principle. 
See  Richardson  v.  Hughitt,  76  N.  Y.  55; 
Carry  v.  Fowler,  87  N.  Y.  33  ;  Eager 
t.  Crawford,  76  N.  Y.  97;  Burnett  v. 
Snyder,  lb.  344 ;  81  N.  Y.  550,  555 ; 
LoomisD.  Marshall,  12  Conn.  69;  Turner 
e-Bissell,  14  Pick.  192  ;  Adee  v.  Cornell, 
25  Hun,  78 ;  Boston  Colorado  Smelting 
Co.  V.  Smith,  13  R.  I.  27 ;  Pooley  v. 
Driver,  5  Ch.  Div.  458 ;  Ex  parte  Del- 
liasse,  7  Ch.  Div.  511. 

'  These  rules  were  applied  to  questions 
•rising  between  partners  in  Bentley  v. 
Cnven,  18  Beav.  76.     There  four  part- 


ners established  a  partnership  for  the  pur- 
pose of  refining  sugar,  one  of  them  being 
a  wholesale  grocer,  who,  from  his  busi- 
ness, was  j)eculiarly  cognizant  with  the 
variations  m  the  sugar  market,  .nd  had 
great  skill  in  buying  sugar  at  tlie  .ight 
anil  proper  time  for  the  business.  He  be- 
ing tlie  person  to  buy,  it  became  his  duty 
and  business  to  employ  his  skill  in  buy- 
ing for  the  sugar  refinery  at  the  time  he 
thought  most  beneficial.  Having  accord- 
ing to  his  skill  and  knowledge  bought 
sugar  at  a  time  when  he  thought  it  likely 
to  rise,  and  it  having  risen,  and  the  firm 
being  in  want  of  some,  he  sold  his  own 
sugars  to  the  firm  without  letting  the 
partners  know  that  it  was  his  sugar  that 
was  sold,  but  studiously  concealing  this 
fact.  The  court  held  that  the  only  way 
in  which  a  sale  of  that  sort  could  be  made 
valid  and  effectual  would  be  by  communi- 
cation of  the  fact.  The  agent  should  say 
to  his  principal :  "I  have  certain  sugars 
of  my  own,  which  I  do  not  choose  to  sell 
to  you  unless  you  give  me  a  pai-ticular 
price  for  them.  You  have  the  option  to 
do  it  or  not  as  you  think  fit."  Had  he 
said  that,  the  fiduciary  relation  between 
them  relating  to  that  transaction  would 
have  been  determined.  If  after  receiving 
the  statement  bis  partners  had  consented 


11 


^1  'I  II' 


:i-| 


hVl 


•«i 


M 


■■■'H 


'if  I.  a 

mi 


602 


COMMENTARIES  ON  BALKS. 


[book  ir. 


When,  in  partnership,  there  are  such  relations  of  trust  and 
coniidonue,  which  one  muu  luuy  occupy  towurda  another,  vltiicr 


to  liU  terniH,  tho  triinwu'tiun  niiglit  liavo 
stood  ^ood  ;  Imt  in  tlio  iiIimi'iu'u  ot'  nucIi  a 
Htiiti'iiit'iit  tli)^  imri'hii.sc  l)y  oiio  imrtiiiT  tor 
Lilt  tirin  coiilit  not  l)u  Htistiiiiiuil  by  tlio 
(!oui't,  cvi'ii  tliou^li  tlic  Nulti  might  liiivu 
Itt'fii  iniidt;  lit  till*  I'iilr  niarkt't  ]irii'u,  mid  at 
Rucli  11  ]irii'u  as  that  at  wliicii  lit;  iniglit 
liavo  Moiil  to  any  oilier  iicrson,  and  tliu 
linn  wai  held  to  bt;  oiititiL'd  to  thit  protit 
on  the  Iraiisat'tion  made  by  thu  individual 

riartnur.  'I'liis  |iriiiii|)lo  is  liinily  ustab- 
i.shud  whtTo  Hiu'li  tiduuiary  ruiatioiiH  l'X- 
iHt.  l,evn  V.  Xuttali,  1  Kiiss.  &  M.  63  ; 
2  Myl.  &  K.  81!>;  Coiu-land  v.  Mure.  Ins. 
Co.,  6  riik.  lltti;  Reed  v.  Warner,  ."i  I'aino, 
650  ;  Keed  v.  Norris,  2  M.  &  Cr.  374  ; 
Bealv.  MeKit'niaii,«  Mill.  (l.a.)  407;  Bar- 
tholouuiw  V.  Leach,  7  Watts,  47'2;  Pivvost 
V.  Oratz,  1  Peters  C.  L".  Mi  ;  Taylor  v. 
Salmon,  2  Cr.  &  M.  130;  Baker  v.  Whit- 
ing, 3  Suniii.  47ti ;  Davore  v.  Fanning, 
2  Johns.  Ch.  2.')1  ;  (iroen  v.  Winter,  1 
Johns.  I'll.  27;  Chureh  v.  Murine  Ins.  t"o., 

1  Mason,  341  ;  Barker  v.  M.irine  Ins.  Co., 

2  Mason,  3t)i> ;    Woodhonso  v.   Meredith, 

1  Jack.  &  W.  204  ;  I'arkist  v.  Alexaii- 
der,  1  Johns.  Ch.  3!t4;  Butler  y.  lltskell, 
4  Dcss.  651 ;  Mosoly  v.  Buck,  3  Munf. 
232 ;  Ex  purte  Uystcr,  1  Meriv.  172 ; 
Lowther  v.  Lowtlier,  13  Vcs.  103;  Wren  v. 
Kirton,  8  Ves.  502.  In  Gillct  v.  Popixsr- 
corne,  3  Beav.  78,  A.  employed  15.,  a 
stoc'k-brokor,  to  purchase  some  canal 
shares.  B.  apmrently  bought  them  fronj 
C,  the  ostensible  owner,  but  who  after- 
wards turned  out  to  be  a  mere  trustee  for 
B.  Tho  court  after  the  lapse  of  several 
years,  and  without  entering  into  the  ijue.s- 
tion  of  tho  fairness  of  the  price,  held  that 
the  transaction  was  void  on  grounds  of 
public  policy,  and  set  it  aside.  See  Brook- 
man  V.  Rothschild,  3  Sim.  153;  2  Dow.  & 
CI.  188;  Bick  v.  Motley,  2  Myl.  &  K.  312; 
Bate  V.  Scales,  12  Ves.  402  ;  Munch  v, 
Cockerell,  9  Sim.  339  ;  Clements  v.  Hall, 
24  Beav.  333;  Miller  v.  Mackay,  31  Beav. 
77;  34  Beav.  205  ;  Shallcross  v.  Oldham, 

2  J.  &  H.  609  ;  Hodge  v.  Twitchell,  33 
Minn.  389  ;  Hichens  v.  Congreve,  4  Kuss. 
662.  A.,  B.,  and  others  were  common  car- 
riers from  London  to  Falmouth,  a  separate 
portion  of  the  road  being  allotted  to  each,  it 
being  stipulated  that  no  partnership  should 
exist  between  them.  A.  for  himself  and 
the  other  parties  agreetl  with  tho  Master 
of  the  Mint  to  carry  coin  from  London  to 
Falmouth,  and  afterwards  made  another 
agreement  with  the  Master  of  the  Mint  to 
carry  other  coin  to  places  not  on  tho  road. 
As  it  appeared  that  A.  in  making  this  sec- 
ond agreement  did  not  apprise  the  othcers 
of  the  Mint  that  he  was  treating  for  him- 


self alone,  it  was  held  that  tlie  otlur  iiar- 
ties  had  tho  right  to  sharo  with  liim  in 
the  prohts  of  the  second  transaction,  liuv 
sell  V.  Austwick,  1  Sim.  52.  A  imrtiier 
who  superintended  exclusively  tin'  iii- 
counts  of  the  linn  agreetl  to  piiiehaM^  Im 
copartner's  share  of  the  business  for  a  sum 
which  he  knew  fioni  accounts  in  his  puv 
session,  but  which  lie  concealed  Imiii  liis 
copartner,  wiis  au  inadeipiato  coii^iiK'ni- 
tion.  The  court  held  that  he  couM  nut 
in  fairness  deal  with  his  partner  witliuiit 
putting  him  into  posses.sion  of  all  tin'  in- 
iormation  which  ho  himself  had  witli  re- 
snect  to  the  state  of  the  accounts  bctwoi'ii 
ttiem,  and  that  he  could  not  lie  permitted 
to  maintain  an  advantage  which  \\v  had 
gained  over  his  partner's  ignorance.  The 
agreement  was  set  aside.  Maddclunl  r. 
Austwick,  1  Sim.  89.  See,  further,  iw  to 
the  gooil  faith  reipiired  in  such  liiiiisac- 
tions,  (ilassington  V.  Thwaites,  1  S.  i  S. 
124,  133  ;  Crawshay  v.  Collins,  1  .\.w..  i 
W.  279;  Featliersto'nhaugh  v,  I'^nwick, K 
Ves.  298, 309,  ct  scq. ;  Ben.son  .  Icatlwni, 
1  Y.  &  C.  326;  Murphy  v.  ( '  a,  -1  J.  4 
Lat.  422;  Dunne  v.  English,  I!.  13  K.|. 
524  ;  Molony  v.  Kernan,  2  D.  oc  War.  31; 
Lowther  v.  towther,  13  Ves.  95,  lOJ;  Im- 

Eerial  Mercantile  Cretlit  Assoc,  i'.  C'ulcniaii, 
,.  R.  6  H.  L.  189,  194  ;  Do  Biissclic  i'. 
Alt.  8  Ch.  Div.  286;  Parker  v.  McKciiiu, 
L.  R.  10  Ch.  96  ;  York  &  North  .Mi.lhni,! 
By.  Co.  V.  Hudson,  16  Beav.  485;  lluiiiil' 
ton  V.  Wright,  9  CI.  &  F.  Ill;  Teiiiwnt 
V.  Trenchard,  L.  K.  4  Ch.  53  ;  Leach  ' 
Leach,  18  I'ick.  68.  The  prineiple  .state,! 
in  tho  text,  and  the  reason  for  it,  were 
acted  on  in  Burton  v.  Wookey,  6  JliuiJ. 
367.  There  tho  plaintitl"  and  dclcmlaiit 
entered  into  partnership  together  to  deal 
in  lapis  mlaminaris.  The  dcli'miant,  who 
was  a  shopkeeper,  wa.s  to  take  the  active 
part  in  the  concern,  and  was  to  imrchas« 
the  lapis  calaminaris  from  the  miners  in 
whose  neighlwrhood  he  lived.  .Muny  of 
the  miners  wore  before  tho  [lartnersiiiii  in 
the  habit  of  dealing  at  his  shop,  ami  con- 
tinued so  for  some  years  after  tlie  partmr- 
ship,  receiving  from  the  defendant  rcaJy 
money  for  the  lapis  calaminaris,  and  [lay- 
ing for  their  shop-goods  afterwaida,  as 
they  would  have  done  to  any  other  sho|i- 
keeiier  ;  but  subsequently  a  new  course  of 
dealing  took  place  between  the  Jeleudant 
and  the  miners.  In  the  place  of  iwyinj; 
them  for  the  mineral  with  money  he  [KiiJ 
them  with  shop-gooils,  and  in  his  account 
with  the  plaintilf  he  charged  him  as  for 
cash  paid  to  the  amount  of  the  price  ot 
the  goods.  The  court  decreed  an  account 
of  the  profit  made  by  the  dol'eudaut  ou 


[book  II. 

rust  and 
if,  cither 

('  otluT  lar- 
vilh  liiiii  ill 
utioii.  Itii.v 
A  iiitrtufr 
I'ly  till'  lu- 
|)uri'li;ist'  hit 
J.SH  lor  11  sum 
I  in  liis  iiiis. 

lltd    Irnlll  \[[i 

to  coti.siili'ni- 
no  I'oulil  Hut 
•tucr  witliuut 
of  nil  till'  ill-    j 
Imil  witli  rv- 

UlltS  In'twoi'D 

lie  iii'iniittivl 
fliicli  111'  liaJ 
loi'iiiH'c.    The 
MiiiMi't'oiil  r. 
t'ui'lhi'i',  us  to 
such  liiinsai:- 
OS,   1  S.  i  S. 
,ilis,  1  .lac.  i 
i;,  l''i'iiwii:k,  1" 
1  r  lleatlioru, 
)     .'il,  i  J.  i 
,  .     U.  13  K.i. 
D.  i,  \V;ir,  ai; 
.  Dr.,  102;  Im- 
1)0. 1'.  Coli'imii, 
)o  Bii.ssclie  I'. 
D.  MoKt'iiiia, 
oith  Mitllauil 
.  485;  llMiil- 
111  ;  Ti'iiiiiint 
53  ;  lA'iu'li  ' 
.■iiu'il'l'"  ''t''''"'' 
II  for  it,  WK 
key,  (5  MiuU. 
.11(1  lU'ri'iuliiit 
^otlu'i-  to  deal 
ofomliviit,  who 

jko  lilt!  ni^^ti" 
to  imrehase 

tho  iiiintTS  in 
;d.     M:"')'  '^^ 

j)artm'i'sliip  in 

hoi>,  mill  i.'1'n- 
.  tlie  partner- 

fomlunt  reaiiy 
,  .-is,  and  I'll)'- 
iftorwiirJs,  as 
ly  otht-T  slwj'- 
now  course  of 
the  dt'l'i'iidaiit 
ico  of  I'iiyini! 
loiiey  he  pw 
in  his  account 
td  him  »s '»' 
the  price  of 
'd  an  account 
fdorcudant  on 


I'AllT   VII.] 


PARTNKRS*   SALES. 


608 


personally  or  lu  regard  to  tho  particular  property  which  is  tho 
»ul)ject  of  the  contract,  which  inipoHo  upon  liini  a  special  and 
|)ociiliar  oblif.;ation  to  deal  with  the  other  person  towards  whom 
lie  httinds  HO  related,  with  u  candor,  a  fairness,  and  a  refusal  to 
avuil  himself  uf  any  advantages  of  superior  information,  or  other 
favorable  circumstance,  not  required  by  courts  of  justice  in  tho 
business  transactions  of   life,  the  princii>les  applicable  to 


llSllill 


liduciary  relations  will  bo  applied. 


1 


till'  floods,  and  that  tho  (ihtintin'  was  (>n- 
titled  to  an  ciiiial  division  of  that  |irotit 
with  tho  defendant.      In   delivoriiiK  tho 
juil^'iiient  tiio  ooiirt  said  :  "  It  i;*  a  niaxini 
uf  courts  of  ('i|uity  that   a   i>ei'son    wlio 
>tiuuls  in  a  relation  uf  trust  or  eonlidoneo 
taaiiiithcr  shall  not  bo  |K'rniitted  in  pur- 
suit ul'  his  ]irivate  advanta^'o  to  niaeo  him- 
Dt'lf  in  a  situation  which  (fives  liini  a  liias 
ajfitiiist  tho  duo  discharge  uf  that  trust  ur 
cunliilence.     The  defendant  hero  stood  in 
a  relation  of  trust  or  conrulen"o  towards 
the  jilaintitr,  wliich  made  it  his  dutv  to 
imrcliasc  the  lapis  C(ilami>iaris  at  the  low- 
est pdssilde  price.     When  iu  the  plac'  of 
lurclia.sing  it  iio  obtained  it  by  barter  for 
iiis  own  shop-goods,  ho  had  a  bias  af^ainst 
a  fair  dischargo  of  his  duty  to  tho  plain- 
tiff.   'I'iie  more  goods  he  gave  for  tl  :  arti- 
cle purchased   tho  grc'cr  wa.s  tho  jirolit 
which   ho    derived    fi'   o  tho   dealing   in 
store-giiods,  and  as  this  protit  belonged  to 
hiui  iiiilividually,  and  as  tho  saving  by  a 
low  jirii'e  of  the  article  purcbiused  was  to 
be  ciitially  divided  between  iiim  and  tiie 
|ilaiiitiir,  ho  had  plainly  a  bias  against  tlio 
due  (lischargo  of  his  trust  or  conlidence 
towards  the  plaintitf."    Burton  ».  Wookey, 
6  MiuUl.  JiOS.     Tho   same  principle  was 
acted  iMi  ill   Hlisset  v.  Daniel,  10  Hare, 
493,  .'i'J'J,  536,  where   a  majority  of  tho 
liartiu'i's  had  the  power  of  expelling  any 
rartiier  from  tlie  firm,  and  appropriating 
liis  iiliare  at  its  valuation  based  on  the 
immediately  preceding  profits.     The  court 
held  that  sucli  a  power  could  be  exercised, 
but  it  must  be  in  good  faith;  not  against 
the  truth  and  honor  of  the  uoutract,  nor 
merely  to  enable  the  continuing  partners 
to  appropriato  to  tliemselves  tho  share  A 
the  expfiled  jwrtner  at  a  fixed  value  leas 
than  the  true  value. 

'  Acting  on  this  principle  in  Brooks  v. 
Martin,  2  Wall.  70,  where  such  relations 
existed  between  the  parties  as  partners,  it 
was  held,  where  one  partner  possessing 
peculiar  knowledge  of  the  business  and 
proiierty  of  the  firm,  purchased  the  sbare 
of  his  ])artner  in  the  firm,  who  did  not 
possess  that  knowledge,  and  whose  posi- 
tion towards  his  partner  was  one  of  trust 
»nd  confidence,  that,  in  order  to  sustain 
such  a  sale,  it  must  bo  made  to  appear. 


first,  that  the  prico  paid  n|iproximates  ren- 
Bunably  near  to  a  fair  and  adei|uato  consid- 
eration for  the  tiling  piirchasi'd  ;  and  sec- 
ond, tliat  all  the  information  in  jiussessioa 
of  tho  purchaser,  which  was  necessary  to 
enables  tlie  seller  to  form  a  sound  judgment 
of  tho  value  of  what  he  sold,  siiould  have 
been  conimunicntcd  by  the  former  to  the 
latU-r.  See  Anderson  v.  Lemon,  8  N.  Y. 
230;  Church  r.  Church,  2.)  I 'a.  278;  Hunter 
I'.  Atkins,  3  Myl.  &  K.  113  ;  I'ugh's  Heirs 
I'.  Bell's  Heirs,  1  J.J.  Marsh.  31»U  ;  Morse 
V,  Uoyal,  12  Vos.  335  ;  Maddoford  v. 
Anstwick,  1  Sim.  8*.) ;  Michoud  v.  (iirod, 
4  How.  503  ;  Bailey  i'.  Teakle,  2  Brock. 
51-54.  A  (lerson  employed  on  behalf  of 
himself  and  his  co-partners  in  negotiating 
tho  terms  of  a  Tease,  is  not  entitled  to 
stipulate  clandestinely  with  the  lessors  for 
any  private  advantage  to  liimself.  Where, 
therefore,  a  sum  of  £12,000  was  paid  in 
pursuance  of  such  a  .stipulation,  the  party 
receiving  it  was  declared  to  ludd  it  in  trust 
for  the  partnersliip,  Fawcett  v.  White- 
house,  1  Ku.ss.  &  M.  132.  See  Carter  o. 
Horno,  1  K(i.  Ab.  7  ;  Hichens  r.  Con- 
grevc,  1  Kuss,  &  M.  150,  noto  ;  Lamar's 
Kx'r  I'.  Hale,  71*  Va.  147,  157.  Where 
one  of  a  co-partnershii>,  by  any  means, 
gets  a  fund  belonging  to  the  firm,  he  is 
not  at  liberty  to  appropriate  it  to  his  own 
exclusive  benefit,  but  must  share  it  with 
his  co-partners.  Enson  v.  Cherry,  9  Jones 
Ell.  (N.  C.)  361  ;  Allison  i-.  Davidson,  2 
Dev.  E(|.  79.  After  the  dissolution  of  a 
partnership  and  jieiidiiig  its  li(iu'''ition,  a 
partner  is  not  permitted  to  do  any  act, 
still  less  to  make  use  of  the  partnerahip 
funds,  in  a  manner  inconsistent  with  the 
purpose  of  a  just  and  proper  settlement  ; 
and  where  a  partner  has  collected  partner- 
ship money  under  circumstances  from 
wliich  an  agreement  on  his  part  not  to  re- 
ceive it  may  be  inferred,  and  where  his 
receiving  it  was  contrary  to  good  faith,  he 
may  be  re(iuired  to  pay  it  into  court. 
Gridley  v.  Conner,  2  Lh.  An.  87,  89.  See 
Shropshrie  v.  Russell,  lb.  961.  In  Brad- 
bury V.  Barnes,  19  Cal.  122,  Baldwin,  J., 
said:  "There  can  be  no  doubt  that  one 
partner  may  purchase  with  his  own  funds 
and  on  his  account,  the  interest  of  his  co- 
partner iu  real  estate  at  public  sale,  if 


w"i'fra 

1  a\ 

f\AI 

\    ■       :    il 

■L 

m. 

■ 

WWPf 

■  r  i 

;;:l^ 

I 

i  ■ 

i 

■     ^,1'     ■- 

■™f''; 

\.h 

•   _    ■■  ■ .' 

:     0'A 

■  \ 

iM 

^  'i4li 

1 

t 


504 


COMMENTABIES  OK  SALES. 


[book  II. 


A  partner  has  not  a  right  to  prefer  his  own  interest  to  that 
of  the  firm,  nor  deprive  the  partnership  of  a  profitable  bargain, 
by  taking  it  to  his  own  account.  The  doctrine  is  deducible  from 
the  nature  of  the  contract  of  partnership,  on  entering  into  whicli 
the  partner  promises  to  his  associates  his  efforts  for  the  comnion 
benefit.  This  promise  he  would  violate  by  seeking  his  individual 
advantage  in  preference  to  that  of  the  partnership.  Hence,  the 
books  abound  in  cases,  many  of  which  we  cite  in  the  notes  in  this 
section,  where  a  partner,  who,  while  his  relations  as  such  existed, 
has  stipulated  clandestinely  for  any  private  benefit  to  himself,  has 
been  compelled  to  divide  such  gains  with  his  associates.^ 


there  be  no  circumstances  of  fraud  or  of  a 
trust  apart  from  this  rehition,  and  so  pur- 
chasing, hold  the  property  as  a  stranger 
might.  It  is  true  that  partners  occupy 
confidential  relations  towards  each  othei, 
but  this  is  in  respect  to  the  firm  business  ; 
but  this  relation  does  not  forbid  one  from 
buying  of  another,  when  both  have  an 
equal  opportunity  and  means  of  knowing 
the  value  of  the  property  and  its  condi- 
tion. The  fact  that  the  sherilFs  sale  is 
public  and  open,  is  itself  priind  facie 
proof  that  no  advantage  is  taken  ;  and  no 
reasons  of  policy  exist  to  restrain  bidding 
by  other  partners  than  the  defendant,  and 
who  would  be  more  disposed  to  bid,  prob- 
ably, than  strangers.  .  .  .  Generally,  one 
partner  has  a  right  to  buy  the  whole  or  a 
portion  of  the  interest  of  his  associate  at 
private  sale,  iis  he  might  purchase  of  a 
stranger,  and  we  can  see  nothing  which 
should  deny  or  qualify  this  right  in  the 
fact  that  the  sale  is  made  through  the  in- 
strumentality of  the  orticer  acting  in  this 
respect  for  the  partner."  And  sec  Gunter 
V.  Laffan,  7  C'al.  588. 

1  In  Lowry  v.  Cobb,  9  La.  An.  .'592, 
the  court  held  that  these  principles  were 
not  applicable  under  the  following  state  of 
facts.  The  plaintitf  and  defendants  owned 
a  plantation  in  partnership,  DilBcultics 
having  arisen  between  them,  tho  property 
was  placed  in  the  har.ds  of  a  receiver,  and 
arbitrators,  clothed  with  the  powers  of 
amicable  comiioundei-s,  appointed.  After 
flagrantly  violating  the  award  and  usurp- 
ing the  administration  of  the  property, 
the  defendants  confessed  a  judgment  in 
favor  of  a  mortgage  creditor,  who  seized 
and  so'.d  the  property.  At  the  sale,  the 
plaintiff,  through  friends,  bought  the  prop- 
erty, and  the  defendants  claimed  the  ben- 
efit of  the  purchase  for  the  partnership. 
The  court  htdd  that  they  were  not  entitled 
to  it.  Slidell,  C.  J.,  in  delivering  the 
judgment  of  tho  court,  said  ;  "  We  con- 
ceive that  the  circumstances  of  the  pres- 
ent case  do  not  fall  within  the  rule,  and 


that  by  their  own  ine<iuitable  conduct  the 
defendants  excluded  themselves  fnini  its 
application.  The  plaintiff  had  faithfully 
submitted  to  the  award,  by  whicii  the 
partnership  property  was  placed  umlerthe 
administration  of  the  receiver,  and  which 
award  they  were  bound,  by  every  coiisiJ- 
eration  of  partnership  and  moral  duty,  to 
respect.  Without  any  just  cause  they  ar- 
rested the  possession  from  the  reiii'iver; 
diverted  to  their  own  use  the  crops  which 
had  been  sacredly  appropriated  to  pur- 
poses vitally  necessary  to  the  protection  of 
the  partnership  interests  ;  awakened  the 
distrust  of  an  ini[iortaiit  creditor ;  ami 
occasioned,  if  not  invited,  a  forced  siile 
by  this  creditor  of  the  partnership  estate 
under  his  mortgage.  When  tho  plaiiitilf 
thus  saw  his  own  ruin  impending  by  thi> 
bad  faith  of  his  co-proprietors,  who  had 
thus  flagrantly  violated  the  coiniiaet  for 
their  common  preservation,  the  instinct 
of  self-defence  necessarily  conii>elleil  hira 
to  seek  tho  assistance  of  his  friends ;  ami 
having  sheltered  himself  in  some  ilej^ee 
through  their  interposition,  from  the 
calamity  which  would  otherwise,  have 
crushed  him,  the  j)romoter  of  the  mis- 
chief has  no  equity  to  share  that  shelter 
with  him.  A  contrary  doctrine  would 
hold  out  to  bad  faith  the  chance  of  a  suc- 
cessful wrong,  with  a  certainty  of  inipun- 
ity  in  case  of  failure."  Lowry  v.  t;obb, 
9  La.  An.  at  593.  In  Sexton  v.  Sexton, 
9  Graft.  204,  two  partners  carried  on  iin 
extensive  business,  embracing  various  suit- 
jects,  and  they  kept  no  regular  sot  of 
books.  One  of  them  attended  exclusively 
to  the  out-door  business,  made  tlie  con- 
tracts, and  executed  notes  for  the  lirm,  o( 
which  no  regular  account  was  kept.  They 
at  length  quarrelled,  and  the  in-door  part- 
ner insisted  upon  a  dissolution  of  the 
partnership,  and  there  was  a  pro[)osition 
to  buv  and  sell.  The  out-door  partner,  in 
making  an  estimate  of  the  value  of  the 
property  for  his  own  guidance  in  any 
proposition  he  might  make  .r  receive,  at- 


iterest  to  that 
table  bargain, 
leducible  from 
lUg  into  which 
•r  the  common 
his  individual 
p.     Hence,  the 
16  notes  in  this 
s  such  existed, 
to  himself,  has 
lates.^ 

suitable  conduct  the 
Lhemselv(!S  from  its 
iiitiir  had  ftiithfully 
rard,  by  which  the 
vaa  jilaeod  uiulcr  the 

receiver,  and  which 
lul,  by  every  coiisid- 
»  and  moral  duty,  to 
ly  just  cause  tliey  ar- 

from   the  receiver; 

use  the  crops  which 
ippropriated  to  imr- 
y  to  the  protection  of 
rests  ;  awakened  the 
)rtant  creditor ;  aiui 
ivited,  a  forced  sale 
he  i>artnership  estate 
When  the  planitili 

in  iinpei>^li"f5  ^'5'  '*'" 
proprietors,  who  had 
ted  the  conijiact  for 
[rvation,  tlic  instinct 
mrily  conii>eUed  him 
of  his  friends ;  ami 
iself  in  some  dcOTee 
•position,    from    the 
iuld    otherwise   have 
remoter  of  the  mis- 
to  share  that  shelter 
Irary  doctrine  would 
tlie  chance  of  a  snc- 
certainty  of  imiuin- 
p."     liowry  r.  (-'H^^ 
In  Sexton  v.  t^cxton, 
Hners  carried  on  m 
[nbracins  variouj  sulv 
V  no   rej^ular  set  ol 
attended  exclusively 
inoas,  made  the  con- 
Utes  for  the  linn  0 

bunt  was  kept.    IW? 

[and  the  i-'-^lx-'r  I'''*;^: 

I  dissohition  of  ttie 

[re  was  a  proposition 

I  out-door  l«"""7'.,"! 

of  t\>o  value  of  the 

[„    guidance   in  any 

make  .r  receive,  ai- 


PART  VII.] 


partners'  sales. 


505 


tempted  to  make  out  a  list  of  the  debts 
line  from  the  concern,  and  ho  estimated 
thera  at  about  one-half  what  they  turned 
out  to  be  ;  but  it  did  not  appear  ihat  he 
represented  them  to  liis  partner  at  any 
amount,  or  that  his  partner  did  coniide  or 
would  have  confided  in  any  representa- 
tions he  might  h.ive  made.  IMie  court 
held  that  t'  ]iosition  of  the  seller  called 
for  the  ext.^ise  of  the  utmost  good  faith 
on  liis  part,  and  that  he  was  bound  not 
only  to  disclose  truly  any  information  in 
his  possession  that  might  In;  called  for,  and 
if  he  perceived  that  his  jwirtner  was  labor- 
ing under  incorrect  views  in  reference  to 
the  amount  of  the  debts  due  by  the  con- 
cern, by  which  he  might  be  misled  into  too 
high  an  otfer  for  the  interest  to  be  sold,  it 
was  his  duty  to  furnish  all  the  data  he 
might  have,  by  which  such  views  might 
lie  corrected  and  the  mischief  prevented. 
But,  as  there  was  no  evidetice  of  any 
abuse  of  contidence,  or  any  etfort  to  ob- 
tain an  unfair  advantage  on  the  part  of  the 
partner  selling,  nor  any  information  with- 
held which  was  called  for,  nor  any  knowing 
ac(piiescence  by  him  in  any  mistaken  views 
or  estim'ites  on  the  jiart  of  the  purchaser, 
by  which  he  might  be  ensnared  into  self- 
deception  and  loss;  the  sale  was  sustained. 
See  Latfan  v.  Nnglec,  9  Cal.  6G2  ;  Ander- 
son V.  Lemon,  4  Sandf.  552  ;  Coder  v. 
Huling,  27  Tn.  St.  84  ;  Kvans  v.  Gibson, 
2!t  Mo.  223;  Wheatley's  Heirs  v.  Calhoun, 
12  Leigh  (Vn.),  264;  Smith  v.  Ramsey, 
6111.  (1  Gilm.)373. 

A  linn  carrying  on  a  general  produce 
business  had  a  debt  due  to  them,  whicli 
was  secured  by  a  mortgage.  A.,  one  of 
the  (inn,  became  one  of  the  owners  of  tlie 
niuitgaged  property,  which  the  fir;ii  had 
been  anxious  to  purchase.  The  debt  was 
\m\  to  ihe  firm.  The  remaining  membei's 
of  the  lirm  claimed  a  share  in  the  benefit 
of  A.'s  purcliase.  The  court  thus  laid 
down  the  law  applicable  to  the  case  ;  — 
"Kach  partner  is  the  agent  of  his  co- 
partners in  all  transactions  relatiii'r  to 
partnership  business,  and  is  forbidden  to 
traffic  tlieicin  for  his  own  advantage,  and 
if  he  does  will  he  held  accountiiblo  for 
all  protits.  But  beyond  the  liiie  of  the 
trade  or  business  in  which  the  him  is  en- 
gaged, there  is  no  restraint  on  his  right  to 
tniinc.  As  one  partner  has  no  authority 
to  bind  the  firm  outside  of  their  ordinary 
business,  he  cannot  of  course  be  held  lia- 
ble to  account  should  he  make  a  profital/ie 
adventure  in  a  matter  not  legitimately 
connected  with  the  business  of  the  firm. 
Tho  dilliculty  generally  is,  to  ascertain 
wliat  acts  are  within  the  scope  of  the  par- 
ticular trade  or  business.  But  in  this  case 
there  is  no  embarrassment  whatever  in  tho 
ipplication  of  the  principle.  This  was  a 
putnership  to  do  a  general  produce  busi- 


ness. It  contemplated  no  dealings  in  real 
estate,  and  each  partner  was  at  liberty  to 
buy  and  sell  real  estate,  and  was  under 
no  legal  liability  to  account  to  his  co- 
partners." So  far  as  there  was  fraud  in 
the  case,  the  parties  were  in  pari  delicto, 
and  the  plaintilfs  were  without  reuic'v. 
Wheeler  v.  Sage,  1  Wall.  518.  See  Kati- 
dall  I'.  Howard,  2  Black,  585;  '  liipiwn 
V.  Stickney,  3  Meti;.  384  ;  Hexwell  v.  Chris- 
tie, 1  Cowp.  395  ;  Howanl  v.  Castle,  6 
T.  R.  642  ;  Veazio  v.  Williams,  G  How. 
134;  Hawley  r.  Irnmer,  4  Cow.  717; 
Fuller  i>.  Abrahams,  3  Br.  &  B.  116;  Jones 
V.  Caswell,  3  Johns.  29  ;  Doolin  v.  Ward, 
6  Johns.  194  ;  Wilbur  v.  Howe,  8  Johns. 
444  ;  Thompson  v.  Davies,  13  Johns.  114. 
An  association  known  as  a  mining 
partnership  is  a  partnership  :.  6  viodo 
only  ;  Kahn  v.  Smelting  Co.,  )'i'2  U.  S. 
641  ;  the  di/cctus  personce,  wl'icn  is  essen- 
tial to  constitute  an  ordinan  ])artnership, 
having  no  place  in  these  mining  associa- 
tions. Durvea  v.  Burt,  28  Cal.  669  ;  Set- 
teinbre  v.  Putnam,  30  Cal.  490;  Taylor 
I'.  Castle,  42  Cal.  367  ;  Skillman  v.  Lock- 
man,  23  Cal.  199,  203.  And  a  purchase 
by  one  member  of  such  an  association  of  tho 
share  or  interest  in  it  of  another  docs  not 
inure  to  the  benefit  of  his  associates.  Bis- 
sell  V.  Foss,  114  U.  S.  252.  In  Lamar's 
Kx'cr  V.  Hale,  79  Va.  147,  160,  with  ref- 
iireuce  to  this  descrijition  of  partnership, 
tile  couri  said  ;  "This  mining  ppTtnerehip 
was  u'ilike  ordinary  trading  partnerships 
in  a  remarkable  feature.  In  the  latter 
chero  is  always  what  is  implied  by  the 
jdirase  '  dilcdi's  pcrsonarum.'  In  them 
no  one  can  become  a  partner  without  tho 
consent  of  the  rest.  In  mining  partner- 
ships, like  that  under  consideration,  there 
Wits  iio  '  dilcctus  personarum.'  Each 
member  could  transfer  his  share  to  any 
o  hor  person,  and  that  person  bticomes, 
ipso  facto,  a  member  of  the  company,  oc- 
cupying the  same  relation  thensto  that  the 
original  iiieinber  occupied.  This  was  the 
distinguisliing  fi-ature  of  this  company 
as  a  mining  partnership,  and  it  made  the 
membei-ship  changeable  and  uncertain. 
But  it  was  a  principle  of  law,  and  all 
persons  dealiiig  with  tho  company  or  with 
its  property  were  and  are  bound  to  take 
notice  of  it."  In  Bradbury  v.  Barnes,  19 
Cal.  120,  Baldwin,  J.,  said  :  "  If  asso- 
ciates in  a  mining  claim  are  to  be  regarded 
as  general  partners,  a  point  which  we  do 
not  decide,  still  wo  do  not  think  the  rule 
a))plieablo  to  trustees  and  cestuis  que  trust, 
guardian  and  ward,  which  qualifies  the 
right  of  purchase  by  the  trustee  of  the 
cestui  que  trust,  can  be  held  to  apply." 
See  Kahn  v.  Smelting  Co.,  102  U.  8.  641. 
In  England  it  has  been  held,  as  in  this 
country,  that  one  of  several  co-adven- 
turers in  a  mine  has  not,  as  such,   any 


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COMMENTARIES  ON  SALES. 


[book  II. 


PABT  VIII. 


authority  to   pledge  the    credit  of   the 
general  body,  tor  money  borrowed  for  the 

Eurposes  of  the  concern.  And  the  fact  of 
is  having  the  general  management  of  the 
mine  makes  no  difference,  in  the  absence 
of  circumstances  from  which  an  imitlied 
authority  for  that  purpose  can  be  inferred. 
Ricketts  v.  Bennett,  4  C.  B.  686.  In 
Fereday  v,  Wightwick,  1  Kuss.  &  M.  45, 
it  is  said  :  "  Mining  concerns  are,  to  some 
purposes,  trading  concerns,  but  they  are 
not  BO  as  to  all :  they  are  not  so  in  this 
particular,  namely,  —  that  they  are  not, 
as  an  ordinary  partnership  trade,  subject 
to  dissolution  on  the  death  or  bankruptcy 
of  any  of  the  partners,  and  the  shares  are 
transferable  without  the  consent  of  the 
other  partners.  In  these  particular  in- 
stances, they  have  not  all  the  incidents  of 
a  trading  concern  ;  in  '"ther  respects,  it  has 
been  repeatedly  held  that  they  have."  In 
Dickinson  v.  Valpy,  10  B.  &  C.  123,  it 
was  held  that  the  directors  of  a  mining 
association  cannot  bind  the  members  by 
accepting  a  bill  of  exchange,  unless  they 
are  authorized  to  do  so  by  the  deed  or  in- 
strument of  co-partnership  ;  by  the  neces- 
sity of  such  a  power  to  the  carrying  on  of 
the  business  ;  by  the  usage  of  similar 
establishments,  or  by  the  express  assent 
of  the  party  sought  to  Ije  charged.  But 
the  members  of  a  mining  company  have 
authority  by  law,  in  the  absence  of  any 
proof  of  a  more  limited  authority,  to  bind 
each  other  by  dealings  on  credit,  for  t'ae 
purpose  of  working  the  mines,  if  that  ap- 
pear to  be  necessary  or  usual  in  the  man- 
agement of  the  mines.  Tredwin  v.  Bourne, 
C  M.  &  \V.  461.  See  Vice  v.  Lady  Anson, 
7  B.  &  C.  411  ;  Bourne  v.  Freeth,  9  H.  k 
C.  632 ;  Hawtayne  v.  Bourne,  7  M.  & 
W.  595  :  Jefferys  v.  Smith,  1  J.  &  W. 
301  ;  Duncarry  v.  Gill,  4  C.  &  P.  121. 
In  Hawken  v.  Bourne,  8  M.  &  W.  703,  a 
joint-stock  company  was  formed  to  work 
a  mine,  in  which  the  defendant  became  a 
shareholder,  and  took  part  in  its  pro- 
ceedings. The  |,i'ospt!ctus  issued  on  the 
formation  of  the  company  stated  that  all 
supplies  for  the  mine  were  to  be  purchased 
at  cash  prices,  and  no  debt  was  to  be  in- 
curred ;  and  the  script  certificates  also 
bore  an  indorsement  to  the  same  eft'ect. 
The  plaintilf  supplied  goods  for  the  neces- 
sary working  of  the  mine  on  the  order  of 
a  resident  agent  appointed  by  the  direct- 
ors to  manage  the  mine,  which  was  the 
customary  coui-se  in  such  concerns.  It 
was  held,  that  the  defendant  was  liable  to 
the  plaintitf  for  the  price  of  such  goods, 
notwithstanding  the  statements  in  the  pro- 
spectus and  certificate,  unless  it  were  shown 
that  the  agent  had  in  fact  no  authority 
from  the  defendant,  and  that  the  plaintiff 


had  notice  thereof.  See  further,  Ellis  v. 
Schmceck,  5  Bing.  621  ;  Parot  v.  Turton, 
2  Wils.  169  ;  Heane  v.  Rogers,  9  B.  &  c. 
577 ;  Crawshay  v.  Maule,  1  Swanst.  518  ; 
Story  V.  Lord  Windsor,  2  Atk.  630  ;  Je^us 
College  V.  Bloom,  3  Atk.  262.  The  par- 
ties constituting  a  mining  coiu])any  occupy 
a  dual  position.  As  owners  of  the  prop- 
erty,  they  are  tenants  in  cominou  ;  and 
in  working  the  mine  they  are  to  be  con- 
sidered as  partners.  As  the  pro[)orty  can 
only  be  used  in  entirety,  it  is  indispens- 
able to  the  conducting  of  the  business  of 
mining  that  those  owning  the  major  ]ior- 
tion  of  the  i)roperty  should  have  the 
power  to  control,  in  case  all  cannot  agri'e ; 
otherwise  the  work  might  become  wholly 
discontinued.  As  mining  partnersliiiw  are 
not  usually  founded  on  the  dikdits  per- 
soHce,  the  powers  of  the  individual  mem- 
bers of  the  concern  are  much  more  limited 
than  are  the  powers  of  the  individual 
members  of  a  purely  commercial  or  trad- 
ing partnership ;  and  for  this  reason  the 
conduct  of  the  partners  holding  the  ma- 
jor portion  of  the  property  in  a  mining 
concern  is  to  be  most  jealously  scrutinized 
when  complaint  is  made  by  the  minority 
in  interest,  of  oppression.  It  might  and 
often  would  work  great  inconveuicuoe  and 
damage  to  the  minority  in  interest  of  a 
mining  partnership,  if  the  majority  were 
allowed  to  do  as  they  might  deem  to  their 
own  advantage,  regardless  of  the  ri;;hts 
an<l  interests  of  the  minority.  But  not- 
withstanding the  danger  of  the  abuse  of 
power  in  such  cases,  what  may  lie  neces- 
sary and  proper  for  carrying  on  tiie  busi- 
ness of  mining  for  the  joint  benclit  of  ail 
concerned  must  be  determined  by  those 
owning  and  'lolding  in  the  aggregate  the 
major  part  ( i  the  property.  Ami  if  tlie 
powers  which  are  thus  attempted  to  be 
exercised  are  not  necessary  aii'l  jiropor  for 
the  success  of  the  enterprise,  those  whose 
interests  are  imperilled  or  disastrously 
affected  ther'^by  have  the  right  to  resort 
to  the  courts  lOr  redress  and  protection. 
Dougherty  v.  Craary,  30  Cal.  '21»0.  In 
Crawshay  v.  M:iule,  1  Swanst.  518,  Lord 
Eldon  says  :  "  Whatever  may  be  tiie  rights 
and  liabilities  of  tenants  in  common  of  a 
mine  not  being  worked,  it  is  clear  that 
where  the  several  owners  uniti^  and  eo- 
operate  in  working  the  mine,  then  a  new 
relation  exists  between  them,  and  to  a 
certain  extent  they  are  governed  by  the 
rules  relating  to  partnerships,  and  this 
relation  of  partnership  may  be  constituted 
either  by  express  stipulation,  or  by  impli- 
cation deduced  from  the  acts  of  the  par- 
ties." Fereday  v.  Wightwick,  1  Ru'^s  & 
M.  45  ;  Bradley  v.  Harkness,  26  Cal.  76. 


PART  VIU.] 


AGENCr. 


607 


BOOK    II. 

PART  VIII. 
AGENCY. 

1.  An  Agent's  Contuacts  fou  a  Fopeign  Principal. 

An  examination  of  the  cases  relating  to  agency  will  show  that 
in  some  of  its  branches  there  is  the  same  hopeless  and  irreconcil- 
able confusion  existing  as  characterized  the  cases  in  connection 
with  the  law  of  partnership  prior  to  the  decision  of  Cox  v.  Hick- 
man.^ This  confusion  has  largely  arisen  from  the  adoption  of 
arbitrary  rules  as  deductions  from  special  cases  ;  wider  scope  and 
a  more  general  application  being  given  to  such  rules  than  has  been 
warranted.  In  some  cases  a  statement  is  made  of  limited  appli- 
cation, which,  in  a  later  case,  is  enlarged,  and  is  finally  adopted 
as  a  "  general  rule,"  applicable  not  only  to  all  precisely  similar 
cases,  but  is  received  as  a  general  principle,  incorporated  into  and 
made  of  the  very  essence  of  the  law  which  is  to  govern  a  general 
class  of  cases.  This  is  well  illustrated  by  the  decisions  connected 
with  purchases  made  by  an  agent  for  a  foreign  principal.  Story 
states  that  "  the  general  rule  obtains  that  agents  or  factors  acting 
for  merchants  resident  in  a  foreign  country  (as,  for  example,  in 
France  or  Germany)  are  held  personally  liable  upon  all  contracts 
made  by  them  for  their  employers  ;  and  this  without  any  distinc- 
tion, whether  they  describe  themselves  in  the  contract  as  agents 
or  not.  In  such  cases  the  ordinary  presumption  is,  that  credit  is 
given  to  the  agents  or  factors,  and  not  only  that  credit  is  given  to 
the  agents  or  factors,  but  that  it  is  exclusively  given  them  to  the 
exoneration  of  their  employers."  ^ 

The  first  case  cited  for  this  proposition  is  DeGaillon  v.  L'Aigle.' 


»  8  H.  L.  C.  268. 

^  Story  on  Agency,  §  268. 

»  1  B.  &  P.  358.  This  citation  by  Storj' 
is  a  miscitation.  The  ease  to  which  he 
refors  is  evidently  De  Oaillon  v.  L'Aigle, 
1  15.  k  P.  368  (2(1  case).  This  was  a  case 
of  improper  evidence  given  on  a  writ  of 
inquiry  issued  under  the  judgment  in  the 
previous  case.  The  question  as  to  the  im- 
proper reception  of  the  evidence  having 


been  decided,  Eyre,  C.  J.,  added  :  "I  am 
not  aware  that  I  have  ever  concurred  in 
any  decision  in  which  it  has  been  held 
that  if  a  i)i'rson  describing  himself  as 
agent  for  another  residing  abroad,  enter 
into  a  contract  here,  he  is  not  personally 
liable  on  the  contract."  This  was  jmrely 
extra-judicial;  but  out  of  this  mainly  grew 
the  unsound  statement  as  a  legal  principle, 
that,  in  efTect,  in  contracts  made  by  the 


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COMMENTABIES  ON  SALES. 


[book  II. 


This  case  simply  holds  that  if  a  wife  trade  and  obtain  credit  in 
England  as  tifeme  sole  and  her  husband  reside  abroad,  she  is  lia- 
ble for  her  own  debts  ;  but  not  unless  she  represents  herself  as  a 
feme  sole.  This  case  has  not  the  most  remote  application  to  the 
matter  for  which  it  is  cited  as  an  authority.  The  feme  covert  is 
made  liable  in  such  case  simply  as  the  result  of  a  necessity  cast 
upon  her  for  her  support,  otiierwise  she  would  obtain  no  credit, 
and  would  have  no  means  of  gaining  her  livelihood.  It  has  no 
bearing  whatever  upon  the  question  as  to  the  liability  of  an  agent 
on  contract  made  by  him  for  a  foreign  principal. 

Paterson  v.  Gandasequi^  comes  slightly  nearer,  and  very  slightly 
so,  towards  the  alleged  general  principle  that  the  contracts  of  an 
agent  for  a  foreign  principal  bind  the  agent,  and  bind  him  only, 
and  not  the  principal.  Thia  was  a  case  where  agents  bought 
goods  in  England  for  foreign  principals,  and  Lord  EUenborough, 
being  of  opinion,  from  the  fact  that  the  plaintiffs  had  dealt  with 
the  agents  upon  their  sole  and  individual  credit,  knowing  that  the 
purchases  they  made  were  on  account  of  the  defendant,  directed 
a  nonsuit.  A  rule  nisi  was  granted  for  a  nonsuit  on  the  ground 
of  assimilating  the  case  of  a  dormant  principal  to  that  of  a  dor- 
mant partner,  where,  though  the  party  furnishing  goods  to  the 
ostensible  partners  intended  at  the  time  to  give  credit  only  to 
them,  he  might  afterwards  pursue  his  remedy  against  the  dormant 
partner  when  discovered.  The  rule  for  a  new  trial  was  made  ab- 
solute. Lord  EUenborough,  C.  J.,  deals  with  the  question  —  which 
mark,  is  an  action  against  foreign  principals  —  without  the  slight- 
est reference  to  that  fact.  He  put  it  simply  as  a  question  as  to 
whether  what  was  done  between  the  sellers  and  the  agents  was 
done  with  the  knowledge  of  the  defendant  (a  foreigner),  being  the 
principal,  the  ratio  decidendi  of  the  case,  as  well  as  the  immediate 
effect  of  what  Lord  EUenborough  said,  being,  that  if  they  were 
not  aware  of  it,  the  defendant  (the  foreign  principal)  was  liable. 
All  of  the  judges  lay  down  the  law,  without  distinction,  as  between 
a  home  and  foreign  principal ;  making  the  sound  general  princi])le 
relating  to  agency  virtually  as  applicable  to  the  one  case  as  to  the 
other.  Lord  EUenborough  correctly  lays  down  the  law,  thus: 
"  The  law  has  been  settled  by  a  variety  of  cases,  that  an  unknown 
principal  when  discovered  is  liable  on  the  contracts  which  his 
agent  makes  for  him ;  but  that  must  be  taken  with  some  qual- 


home  agent  for  a  foreign  principal,  the 
agent  was  always  liable,  and  the  principal 
never  so.  Smyth  v.  Anderson,  7  C.  B. 
21,  has  been  cited  for  the  same  proposi- 
tion (see  Bny  v.  Kettell,  1  Allen,  80,  82 ; 
per  Bigelow,  C.  J.) ;  but  that  case  in  effect 


holds  the  reverse  ;  holding,  as  it  does,  that 
the  foreign  principal  was  not  liiiblp,  ^^ 
cause  he  had  paid  the  agent  before  a  de- 
mand was  made  on  him  by  the  English 
seller  of  the  goods  for  payment. 
1  15  East,  62. 


PART  VIII.] 


AGENCY. 


509 


ification,  and  a  party  may  preclude  himself  from  recovering  over 
against  the  principal  by  knowingly  making  the  agent  his  debtor ; " 
intimating  that  it  had  appeared  to  him  at  the  trial  that  the  plain- 
tiffs knew  of  the  defendant  being  the  principal,  and  had  elected 
to  take  the  ago:  ts  as  their  debtors,  or  he  should  not  have  non- 
suited the  plaintiffs ;  but  he  thought  that,  as  there  might  be  a 
doubt  upon  the  evidencGj  wliPther  the  plaintiffs  had  a  perfect 
knowledge  of  that  fact,  it  might  be  well  to  have  it  reconsidered. 

The  same  idea  was  the  leading  one  in  the  minds  of  the  other 
judges.  Grose,  J.,  thought  that  the  plaintiffs  might  have  elected 
whom  they  would  have  for  their  debtor,  and  that  they  seemed  to 
have  made  their  election ;  adding :  "  That,  however,  is  the  only 
doubt  which  is  fit  to  be  considered."  Le  Blanc,  J.,  said  :  "  It  will  be 
material  to  have  the  facts  inquired  into  more  fully,  in  order  to  as- 
certain whether  the  tradesmen  sold  to  the  agents  with  a  knowl- 
edge of  the  party  for  whom  they  were  buying  ;  or  whether,  with- 
out such  knowledge,  they  chose  to  give  credit  to  the  agents, 
whether  buying  for  another  or  for  themselves."  And  Bayley,  J. : 
"  I  have  generally  understood  that  the  seller  may  look  to  the  prin- 
cipal when  he  discovers  him,  unless  he  has  abandoned  his  right  to 
resort  to  him.  I  agree  that  where  the  seller  knows  the  principal 
at  the  time,  and  yet  elects  to  give  credit  to  the  agent,  he  must  be 
taken  to  have  abandoned  such  right,  and  cannot,  therefore,  after- 
wards charge  the  principal.  I  think  it  should  be  considered  in 
this  case  whether  the  plaintiffs  did  so." 

Neither  Lord  Ellenborough  nor  Grose,  J.,  made  the  slightest 
reference  to  the  question  as  to  the  defendant  being  a  foreign  prin- 
cipal, and  the  only  references  made  to  the  matter  at  all  were  hy- 
pothetical. Thus  Le  Blanc,  J.,  says :  "  It  may  be  necessary  to 
consider  in  the  present  case  whether  any  distinctic  •  can  be  made 
between  a  home  and  a  foreign  principal."  Ami  Bayley,  J. : 
"  There  may  be  a  particular  course  of  dealing  with  res;  ict  to  trade 
in  favor  of  a  foreign  principal,  that  he  shall  not  be  liable  in  cases 
where  a  home  principal  would  be  liable.  That  would  be  a  ques- 
tion for  the  jury."  Whether  there  was  such  a  course  ?  A  ques- 
tion of  fact  for  the  jury  ;  not  a  principle  of  law.  Had  this  been, 
as  stated  by  Story  and  in  some  of  the  later  cases,  a  principle  of 
law,  the  nonsuit  in  the  action  against  the  foreign  principal  could 
not  have  been  set  aside.  This  is  the  second  of  the  cases  cited  by 
Story  to  sustain  the  statement  of  principle  of  law  quoted  above. 

The  case  of  Addison  v.  Gandassequi  ^  is  a  case  very  similar  to 
Paterson  v.  Gandasequi,^  and  is  usually  cited  in  the  same  connec- 
tion.    This  case  simply  decides  that  a  man  selling  to  another 

1  4  Taunt.  674.  •  16  East,  62. 


■^!l': 


!  '     I 


■I 


fi  1/  ■*' 


i;  f 


uii  li 


i 


\  V 


510 


COMMENTABIES  ON  SALES. 


[book  II. 


PART   VIII, 


for  the  use  of  a  third,  who  stands  by  and  is  known,  may  make 
the  contract  with  the  buyer  without  making  the  third  person  re- 
sponsible. It  was  only  on  tliis  prir  jiple  that  the  defendant  (the 
foreign  principal)  was  held  not  personally  liable  on  the  contract 
made  by  his  agent. 

Thomson  v.  Davenport  ^  is  a  case  slightly  dififerent  from  these 
preceding  cases,  which  we  liave  examined.  Here  all  the  judges 
concurred  in  laying  down  the  law,  as  a  general  rule,  that  if  a  per- 
son sells  goods,  supposing  at  the  time  he  is  dealing  with  a  princi- 
pal, but  afterwards  discovers  that  the  person  with  whom  lie  has 
been  dealing  is  not  the  principal  in  the  transaction,  but  agent  for 
a  third  person,  though  he  may  in  the  mean  time  have  debited 
the  agent  with  it,  he  may  afterwards  recover  the  amount  from 
the  real  principal ;  subject,  however,  to  this  qualification,  that  the 
state  of  the  account  between  the  principal  and  the  agent  is  not 
altered  to  the  prejudice  of  the  principal.  On  the  other  hand,  if 
at  the  time  of  the  sale  the  seller  knows  not  only  that  the  person 
who  is  nominally  dealing  with  him  is  not  principal  but  t.o3nt,  but 
also  knows  who  the  principal  really  is,  and,  notwithstanding  all 
that  knowledge,  chooses  to  make  the  agent  his  debtor,  dealing 
with  him  and  with  him  alone,  then  the  seller  cannot  afterwards, 
on  the  failure  of  the  agent,  turn  round  and  cliarge  the  principal, 
having  once  made  his  election  at  the  time  when  he  had  the  power 
of  choosing  between  the  one  and  the  other.  Thomson  v.  Daven- 
port ^  establishes  the  additional  proposition  that  w'.iere  the  seller 
at  the  time  of  making  the  sale  knows  that  there  is  a  principal, 
mere  knowledge  that  there  is  a  principal  does  not  destroy  the 
right  of  the  seller  to  look  to  the  principal  as  soon  as  he  knows 
who  that  principal  is,  provided  he  did  not  know  who  he  was  at 
the  time  when  the  purchase  was  originally  made. 

References  arc  made  in  this  case  to  the  presumption  that  where 
an  agent  makes  a  contract  for  a  foreign  principal,  the  intention  is 
that  he  alone  should  be  bound ;  but  this  is  a  presumption  of  fact, 
and  is  liable  to  be  rebutted  by  very  slight  circumstances,  showing 
that  it  was  not  the  intention  of  the  seller  to  look  solely  to  the 
agenf.  Although  the  cases  are  by  no  means  consistent  with  each 
other,  we  think  the  better  holding  is  as  stated  by  Cowen,  J.,  in 
Tainter  v.  Prendergast,"  where,  referring  to  Thomson  v.  Daven- 
port,* he  makes  this  distinction :  "  It  will  be  seen  by  this  case 
and  others  referred  to  by  it,  that  the  usual  and  decisive  indication 
of  t.n  exclusive  credit  is,  where  the  creditor  knows  there  is  a  for- 
eign principal,  but  makes  his  charge  in  account  against  the  agent. 
If  the  seller  be  kept  in  ignorance  that  he  is  selling  to  an  agent  or 


1  9  B.  &  Cr.  78. 


*  3  HiU,  72,  73. 


PART   VIII,  J 


AGENCY. 


611 


factor,  I  am  not  aware  of  a  case  which  denies  a  concurrent  rem- 
edy. On  the  other  hand,  1  am  still  in  want  of  an  authority  that, 
where  an  agent  acquires  rights  in  a  course  of  dealing  for  his  prin- 
cipal, whether  the  latter  be  foreign  or  domestic,  and  his  name  is 
jjcpt  secret,  the  principal  may  not  sue  to  enforce  those  rights.  I 
admit  that  the  defendant  is  not,  by  such  form  of  action,  to  be  cut 
off  from  any  equities  he  may  have  against  the  agent.  So  far  the 
latter  is  considered  as  the  exclusive  principal ;  but  no  further. 
As  a  general  rule,  the  latter  cannot  maintain  an  action  in  his  own 
name  at  all ;  and  the  exception  will  be  found  to  arise  from  cases 
where  he  has  the  rights  of  bailee  or  some  other  rights  ;  not  the 
mere  powers  of  a  naked  agent." 

Nelson,  C.  J.,*  goes  still  further.  He  says  ;  "  There  can  be  no 
doubt,  a  person  acting  as  agent  of  a  foreign  house  is  not  respon- 
sible, individually,  if  he  discloses  his  principal,  and  acts  only  in 
his  behalf,  any  more  than  an  agent  of  a  house  in  this  country. 
There  is  no  such  distinction  to  be  found  of  any  authority  in  the 
books,  nor  is  there  any  reason  to  support  it.  If  an  individual  de- 
sire the  personal  credit  and  liability  of  the  agent,  he  should  make 
known  the  fact,  and  all  parties  will  then  understand  it.  If  the 
agent  declines,  the  vendor  can  refuse  to  deal  with  him."  This 
view  was  sustained  on  error  from  the  Supreme  Court.  We  find, 
on  examining  the  case,  that  the  large  majority  of  the  court  took 
virtually  the  same  view  of  Story's  statement  of  the  law  ap  we  have 
done.  Verplanck,  Sin.,  voicing  their  views,  said  :  "  I  am  satisfied 
that  Judge  Story  has  stated  the  doctrine  in  too  strong  and  unqual- 
ified terms,  as  if  this  presumption  were  a  universal  inference  of 
law,  applicable  everywhere.  1  think,  on  the  contrary,  that  this  is 
a  presumption  founded  altogether  upon  usage  and  the  particular 
course  of  trade,  and  arises  only  when  and  where  that  usage  is 
known  or  proved  to  exist.  Of  course,  then,  that  is  not  an  unvary- 
ing legal  presumption,  to  be  applied  to  any  contract,  made  any- 
where, by  a  factor  or  agent  representing  a  person  or  commercial 
house  in  some  foreign  country."  ^ 

The  presumption  of  fact  that  there  is  in  the  matter,  has,  without 
doubt,  arisen  from  the  custom  of  many  foreign  principals  ordering 
goods  from  English  factors  or  commission  merchants,  the  latter 
buying  the  goods  in  their  own  name  and  on  their  own  credit,  char- 
ging their  foreign  customers  with  a  commission  for  so  doing.    But, 

'  In  Kirkpatrick  v.  Slainer,  22  Wend. 
244,  246. 

"  Kirkpatrick  v.  Stainer,  22  Wend.  244, 
259.  In  this  case,  Kent,  Ch.,  in  delivering 
the  dissenting  judgment  of  himself  and 
the  minority  of  the  court,  quoted  from 
Smith's  Mercantile  Law,  (see  infra)  and 


Story's  Agency,  the  rule  of  law  in  the 
matter,  as  laid  down  by  them,  which  he 
indorsed.  It  is  noteworthy,  however,  that 
in  his  Commentaries  he  lays  down  no  such 
doctrine  as  he  attempted  to  establish  in 
Kirkpatrick  v.  Stainer,  22  Wend.  244, 
251. 


I!'  is  'M 


\  K 


'  !l 


I      % 

I  m 


512 


COMMENTARIES  ON   SALES. 


[book  II. 


PART  VIII. 


on  the  other  hand,  the  instances  are  numerous  where  foreign  mer- 
chants have  tlioir  resident  agents  in  England,  who  buy  goods  for 
their  principals,  not  as  principals  themselves,  but  in  tlie  capacity 
of  agents  only,  without  any  thought  by  cither  of  the  parties  of  any 
other  being  responsible  on  the  contract  than  the  principals.  The 
same  remark  applies  to  the  chartering  of  ships  ;  ships  being  largely 
chartered  in  England  by  agents  for  foreign  principals,  without  any 
liability  being  incurred  in  law  or  in  fact  by  the  home  agents. 
The  whole  matter  is  simply  one  of  contract  —  of  intention. 

We  notice  also,  that  Smitli,  who,  in  his  Mercantile  Law,^  taking 
very  much  the  same  position  as  Story,  said  :  "  It  seems,  also,  to 
be  a  rule  that  whenever  the  agent  is  an  English,  and  the  principal 
a  foreign  merchant,  the  seller  will  be  considered  as  having  gi' 
credit  to  the  Englishman,  and  that  he,  and  not  the  foreigner,  is 
liable ; "  in  his  Leading  Cases  ^  abandons  that  view.  He  says :  "  It 
is  conceived  that  there  is  no  difference  in  point  of  law  between  the 
case  of  an  agent  contracting  on  behalf  of  an  English  or  foreign 
principal.  In  each  case  it  is  a  question  as  to  the  intention  of  the 
parties  to  be  collected  from  the  facts,  and  the  circumstance  of 
the  principal  being  foreign  may  be  sometimes  considered  as  of 
great  weight  in  the  determination  of  that  question.  Thus,  on 
an  ordinary  sale  and  purchase  of  goods  in  this  country,  it  is, 
perhaps,  not  an  unreasonable  inference  of  fact  that  the  parties 
residing  here  are  looked  to  as  principals,  where  there  is  no  stipu- 
lation to  the  contrary  ;  and  the  usage  of  the  particular  trade 
will  probably  in  many  cases  furnish  a  guide  to  a  decision  of  this 
question." 

Bigelow,  C.  J.,  in  Bray  v.  Kettell,^  in  dealing  with  this  same 
question,  after  referring  to  the  alleged  rule,  and  to  its  origin  in  a 
local  custom  or  usage,  added  :  "  But  it  is  going  quite  too  far  to 
say  that  this  usage  or  custom  is  so  ingrafted  into  the  common 
law  as  to  become  a  fixed  and  established  rule,  creating  a  pre- 
sumption in  all  cases  that  the  agent  is  exclusively  liable  ;  to  the 
entire  exoneration  of  his  employer.  The  more  reasonable  and 
correct  doctrine  is  that  when  goods  are  sold  to  a  domestic  agent 
or  a  contract  is  made  by  him,  the  fact  that  he  acts  for  a  foreign 
principal  is  evidence  only  that  the  agent,  and  not  the  principal,  is 
liable.  It  is  in  reality,  in  all  cases,  a  question  to  whom  the  credit 
was  in  fact  given.  Where  goods  are  sold,  it  is  certainly  reason- 
able to  suppose  that  the  vendor  trusted  to  the  credit  of  a  person 
residing  in  the  same  country  with  himself,  subject  to  laws  with 
which  he  is  familiar,  and  to  process  for  the  immediate  enforce- 


1  Page  188,  3d  ed. 

»  Vol.  ii.  p.  418,  2d  ed. 


1  Allen,  80,  83. 


PART  VIII.] 


AGENCY. 


513 


inent  of  a  debt,  rather  than  to  a  principal  residing  abroad,  under 
a  different  system  of  laws,  and  beyond  the  jurisdiction  of  the  do- 
mestic forum.     But  even  in  such  a  case,  the  fact  that  the  princi- 
pal is  resident  in  a  foreign  country  is  only  one  circumstance 
entering  into  the  question  of  credit,  and  is  liable  to  be  controlled 
by  other  facts.     So  in  the  case  of  a  written  contract ;  it  do])cnds 
on  the  intention  of  the  parties.     But  this,  as  in  all  other  cases  of 
written  instruments,  must  be  determined  mainly  by  the  terms  of 
the  contract.     There  may  be  cases  where  the  lanjjjnagc  of  the  con- 
tract is  ambiguous,  and  it  is  doubtful  to  whom  the  parties  intended 
to  give  credit,  in  which  the  circumstance  that  the  princi{>al  is  res- 
ident abroad  may  be  taken  into  consideration  in  determining  the 
question  of  the  liability  of  the  agent.     But  where  the  terms  of  the 
contract  are  clear  and  unambiguous,  it  must  be  deemed  the  final 
repository  of  the  intention  of  the  parties  ;  and  its  construction  and 
legal  effect  cannot  be  varied  or  changed  by  any  reference  to  facts 
or  circumstances  affecting  the  convenience  of  the  parties  or  the 
reasonableness  of  the  contract  into  which  they  have  entered.     In 
such  a  case,  therefore,  it  makes  no  difference  whether  the  princi- 
pal is  a  foreigner  or  not.     If  by  the  language  of  the  contract  the 
agent  and  not  the  principal  is  bound,  such  must  be  its  construc- 
tion ;  and,  on  the  other  hand,  if  it  clearly  binds  the  jjrincijial,  and 
is  in  form  a  contract  with  him  only,  the  agent  must  be  exonerated 
without  regard  to  the  fact  that  the  principal  is  resident  in  a  for- 
eign country.*    This  rule  can  work  no  hardship,  because  parties 


'  The   plnintiffs,   a   foroign  company, 
entered   into  negotiations   through   S.   & 
Co.,  Loiulon,  <:oniiinssion  merchants,  for 
llie  sujiply  by  (J.,  the  defendant,  of  cer- 
tain railway  wheela  and  axles  ;  and  the 
defciidiuit,  in  consequence,  had  an  inter- 
view, on  the  29th  January,  at  S.  &  Co.'s 
office,  with  S.,  one  of  the  partners,  and  H., 
the  managing  director  of  the   phiintilfa' 
company  ;  and  the  defendant  signed,  in  a 
liiarj-  ofS.,  the  following  entry  :  "  Mr.  C. 
offers  to  su])|ily  ir>0  sets  of  wheels  and 
wles  [ilesciil)ing  them]  at  £31  |)er  set,  to 
te  delivered  free  on  board  at  Hull  during 
February  and  March.   This  ofl'er  to  remain 
open  uiitil  the  3d  of  February."    On  the 
U  of  February  S.  &  Co.  telegraphed  and 
1  wrote :    "  We  confirm  the  order  for  150 
sets  of  wheels  and  axles,"  repeating  the 
terms  of  the  offer.     Some  of  the  sets  were 
delivered  by  the  defendant,  the  invoices 
l*ing  made  out  to  S.  &  Co.,  and  they  paid 
'or  them  ;  but  the  delivery  of  most  of  the 
*ts  was  after  March,  and  the  plaintiffs 
med  for  a  breach  of  the  contract.     At  the 
'rial  it  was  objected  that  the  contract  was 
jrith  S.  &  Co.,  and  not  with  the  plaintiffs. 
'lie  judge  (Mellor)  left  it  to  the  jury  to 

VOL.  I. 


say  whether  the  contract  was  made  with 
the  plaintiffs  or  with  S.  &  Co.  Tlie  jury 
found  that  it  was  made  with  S.  &  Co. 
On  motion  for  a  new  trial,  on  the  ground 
of  misdirection,  and  that  the  verdict  was 
against  the  weight  of  evidence,  the  court 
held  that  the  direction  and  verdict  were 
right,  The  principle  upon  which  the  ca.se 
was  decided  is,  that  an  agent  may  make  a 
contract  by  which  he  may  become  person- 
ally liable,  while  he  still  makes  it  on  be- 
half of  his  principal,  so  that  the  other 
party  has  a  choice  to  go  against  either  the 
one  or  the  other ;  that  is,  that  the  con- 
tract may  be  such  as  to  make  the  prin- 
cipal, as  well  as  the  agent  himself',  a  party 
to  the  contract.  But  if  the  princijial  be 
made  a  party  to  the  contract,  lie  must  be 
both  able  to  sue  and  liable  to  be  sued ;  for 
he  cannot  be  a  party  so  as  to  be  able  to 
sue,  and  yet  not  a  party  so  as  not  to  be 
liable  to  be  sued.  Klbinger  Actien-Ges- 
sellschaft  v.  Clave,  L.  R.  8  Q.  B.  313. 
And  in  this  case  the  court  considered  that 
the  evidence  excluded  the  one  altogether, 
because  the  foreign  i)rincipal  was  known 
to  the  defendant,  and,  in  fact,  was  present 
at  the  time  of  the  offer  ;  and  that  the  jury 
33 


ii 


n 


■  f 

1  .  i  i: 

t:  r  i  J 


■I  .n 


'H 


■MB 


I  ^! 


614 


COMMENTARIES  ON  SALES. 


[book  II. 


can  in  all  cases  make  their  contracts  in  such  form  as  to  bind  those 
to  whom  tlicy  intended  to  give  credit.  .  .  There  can  be  no  doubt 


found  in  substunce  (and  their  iindlng  was 
Rustained),  that  what  the  dufundunt  in 
effect  said,  was  :  "  I  know  the  coods  are 
not  for  you,  8.  &  Co.,  but  I  will  not  deal 
with  your  foreign  priuciiial,  but  only  with 
you  ;  '  and  that  being  so,  the  foreigner  is 
excluded,  both  fur  the  purpose  of  liability, 
and  fur  the  purpose  of  suing  and  taking 
the  benetit  of  the  contract.  Hutton  v. 
Bulloch,  L.  K.  8  Q.  B.  331,  is  a  case 
similar  in  principle  to  Elbinger  Co.  v. 
Claye,  L.  R.  8  Q.  H.  313,  and  carried  the 
principle  that  the  presumption  (whether 
It  be  an  inference  of  fact  or  a  conclusion 
of  law)  that  fureign  constituents  do  not 
give  ihe  English  commission  merchant 
any  authority  to  pledge  their  credit  to 
those  from  whom  the  commission  mer- 
chant buys  on  their  account,  to  a  case  in 
which  a  foreign  firm  agrees  that  an  Eng- 
lish firm  shall  purchase  and  ship  goods 
on  the  joint  account  of  the  two  firms. 
The  (juestion  came  up  in  the  Court  of 
Queen's  Bench  on  a  ease  stated  b)'  con- 
sent In  this  case  the  action  was  against 
the  foreign  principal ;  and  the  facts  were 
that  H.  F.  &  Co.  were  merchants  in  Lon- 
don, and  the  defendant  was  a  partner  in 
the  firm  of  H.  B.  k  Co.,  carrying  on 
business  at  Rangoon.  Goods  were  sup- 
plied by  plniiititf  to  H.  F.  &  Co.  on  their 
order,  given  in  consequence  of  an  arrange- 
ment between  the  two  linns,  as  disclosed 
in  letters,  that  H.  F.  &  Co.  should  purchase 
and  send  out  goods  on  the  joint  account 
of  the  two  firms,  2  per  cent,  to  be  charged 
on  the  invoice  by  the  London  firm,  and 
5  per  cent,  by  the  Rangoon  firm,  includ- 
ing guarantee.  The  plaintilf  had  no 
knowledge  of  the  defendant,  or  that  the 
Rangoon  firm  were  in  any  way  interested 
in  tne  transaction,  until  after  the  goods 
were  supplied.  The  judgment  of  the  court 
was  delivered  by  Blackburn,  J.,  in  favor 
of  the  defendant.  On  appeal  to  the  Court 
of  Exchequer  Chamber  (L.  K.  9  Q.  B. 
672),  the  judgment  of  the  Court  of  Queen's 
Bench  was  affirmed,  both  courts  holding 
that  the  defendant  was  not,  as  an  undis- 
closed principal,  a  party  to  the  contract 
under  which  the  goods  were  supplied  by 
plaintiff;  for  that,  on  the  true  construc- 
tion of  the  correspondence,  the  Rangoon 
firm  did  not  give  authority  to  the 
London  firm  to  establish  privity  of  con- 
tract, and  pledge  their  credit  with  the 
English  suppliers  of  the  goods,  inasmnch 
as  the  presumption  that  foreign  constitu- 
ents do  not  give  the  English  commission 
merchant  any  authority  to  pledge  their 
credit  to  those  from  whom  the  commis- 
sion  merchant   buys  on  their  account, 


applies  to  such  a  case.  The  (piestion  in- 
cidentally arose  in  this  case,  ni  tin;  comt 
below,  whether  the  conclusion  arrived  at 
is  an  inference  of  fact  or  a  comlubioii  of 
law.  It  .'ould  seem  to  be  that,  in  reach. 
ing  the  >  onclusion,  it  would  be,  us  is  the 
case  m  the  construction  of  most  contracts, 
a  mixed  question  of  fact  and  uf  law. 
Blackburn,  J.,  who  delivered  tiiH  jml^. 
ment  in  this  case  in  the  Court  of  (^tiiccn's 
Bench,  where  the  point  is  rtt'crictl  to, 
himself  showed,  in  Elbinger  Co.  v.  Cliye 
(L.  R.  8  Q.  B.  at  p.  317  ct  seq.),  that 
although  the  usage  of  trade  e.stiililisheil 
for  many  years  has  been  that  it  is  under 
stood  that  the  foreign  constituent  has  not 
authorized  the  merchants  to  pledge  his 
credit  to  the  contract,  to  establish  privity 
between  him  and  the  home  .supplier ;  yet 
that,  on  *he  other  hand,  the  home  sup. 
Her,  knowing  that  to  be  the  usage,  (ioes 
not  trust  the  foreigner,  and  so  iloes  not 
make  t  he  foreigner  responsible  to  him,  nor 
himself  responsible  to  the  foreigner,  unhis 
there  is  something  in  the  bargain  showmii 
the  intention  to  be  otherwise ;  and  admits 
that  there  might,  no  doubt,  be  a  contract 
raado  in  a  ditlerent  way  between  the  two 
parties  bargaining  together,  and  there 
might  be  evidence  of  that  given  to  a  jury. 
In  Hutton  v.  Bulloch,  Maule,  .I.'s,  state- 
ment, in  Smyth  i>.  Anderson  (7  (.'.  15.  at 
p.  33  ;  18  L.  J.  C.  P.  109),  is  (pioteJ, 
where  he  says  :  "  It  is  well  known,  in  or- 
dinary cases,  where  a  merchant  resident 
abroad  buys  goods  hero  through  an  agent, 
the  sellev  contracts  with  the  agent,  and 
there  is  no  contract  or  privity  between 
him  and  the  foreign  principal.  If  that 
question  had  been  specifically  put  to  the 
jury,  there  can  be  no  doubt  as  to  what 
their  decision  would  have  been."  And  this 
is  also  (juoted  from  the  judgment  in  Arm- 
strong V.  Stokes,  L.  R.  7  Q.  B.  at  p.  605: 
"The  great  inconvenience  that  would  re- 
sult if  there  were  privity  of  contract  estab- 
lished between  the  foreign  constituents  of 
a  commission  merchant  and  the  home  sup- 
pliers of  the  goods  has  led  to  a  course  of 
business,  in  consequence  of  which  it  has 
long  been  settled  that  a  foreign  constitu- 
ent does  not  give  the  commission  merchant 
any  authority  to  pledge  his  credit  to  those 
from  whom  the  commission  nieicliant  buys 
them  by  his  order  and  on  his  account.  It 
is  true  that  this  was  originally  (and  in 
strictness  perhaps  still  is)  a  question  of 
fact ;  but  the  inconvenience  of  holding 
that  privity  of  contract  was  established 
between  a  Liverpool  merchant  and  the 
grower  of  every  bale  of  cotton  which  is 
forwarded  to  him  in  consequence  of  bis 


.  |{,  at 
quoted, 
,  in  or- 
resiJent 
ngi'nt, 
nt,  and 
between 
If  tbat 
.  to  the 
to  what 
Viidthis 
in  Arm- 
605; 
j'uld  re- 
•t  estab- 
jents  of 
roe  sup- 
ourse  of 
it  has 
oiistiw- 
lerchant 
to  those 
nt  buvs 
(int.    It 
(and  in 
stion  of 
Iholding 
iblished 
ind  the 
:hich  is 
of  bis 


PAUT  VIII.] 


AGENCY. 


515 


that  if  the  principal  resided  in  this  country,  lio  alone  could  have 
been  sued  on  the  contract.  In  like  manner,  he  only  is  responsi- 
ble, although  a  foreigner,  because  he  is  tlio  sole  party  to  it,  and 
there  is  nothing  to  control  the  intent  manifested  by  this  mode 
of  executing  the  contract." 

This  is  altogether  like  the  usual  judgments  of  Bigelow,  C.  J., 
an  admirable  exposition  of  the  law ;  every  word  of  which  we 
adopt.  It  was  held,  in  accordance  with  the  language  we  have 
quoted,  where  a  charter-party  had  been  entered  into  by  the  defend- 
ant, for  foreign  principals,  and  the  agent,  having  due  authority  to 
do  so,  signed  the  charter-party,  "  A.  B.  by  C.  D.,  agent,"  that  the 
agent  was  not  liable  on  the  contract,  although  the  principals  re- 
sided beyond  seas.^ 


order  fiivpn  to  a  commission  merchant  at 
New  Ui  leans,  or  between  a  New  York  mer- 
chant and  the  suiiplierof  every  bale  of  gootls 
purehiisetl  in  consequence  of  an  order  to  a 
London  commission  merchant,  is  so  ob- 
vious and  so  well  known,  that  we  are  jus- 
tifieil  in  treating  it  as  a  matter  of  law,  and 
saying  that,  in  the  absence  of  evidence  of 
an  express  authority  to  that  effect,   the 
commission  agent  cannot  pledge  his  for- 
eign constituent's  credit."    The  deduction 
from  tluse  cases  would  seem  to  be,  in  Eng- 
land, that,  whether  there  is  any  evidence 
to  submit  to  the  jury  as  to  the  intention 
of  the  parties  contracting  mutually  to  bind 
the  foreign  principal  and  the  home  dealer 
to  each  other,  as  parties  to  the  contract, 
on  principle  as  well  as  on  authority,  is,  of 
course,  a  question  of  law.    Where  there  is 
such  evidence,  the  intention  of  the  parties 
would,  with  equal  clearness,  be  a  question 
of  fact  to  be  submitted  to  a  jury,  the  jury 
being  instructed  that  the  burden  of  proof 
is  on  him  who  seeks  to  establish  the  priv- 
ity of  contract  between  the  foreign  ])rin- 
cipal  and  the  home  dealer.      And  where 
there  is  no  evidence  of  such  mutual  inten- 
tion between  the  parties,  from  long  usage, 
whirii  has  now  ripen  3d  into  a  principle  of 
law,  the  conclusion  is  that  it  is  now  a 
principle  of  hiw,  that  the  foreign  principal 
and  the  home  denier  do  not  contract  with 
each  other,  but  that  there  are  two  inde- 
pendent  contracts,  —  the   foreign   dealer 
with  the  commission  merchant,  and  the 
liome  dealer  with  the  commission   mer- 
chant as  well ;  the  commission  merchant 
heing  the  principal  in  both  cases,  as  be- 
tween himself  and  the  foreign  dealer,  and 
Mmself  and  the  home  dealer  respectively. 
This,  of  course,  is  simply  the  result  of 
isage,  in  the  entire  absence  of  any  evi- 
liencf  to  show  the  intention  of  the  parties. 
'  See  further  on  the  point,  Lennard 
t  Robinson,  6  £1.  &  B.  125, 130;  Mahony 


V.  Kekule,  14  C.  B.  390;  Green  v.  Kopke, 
18  C.  B.  549 ;  Heald  o.  Kenworthy,  10  Kx. 
739,  743,  per  I'arke,  B. :  "The  question  of 
the  liability  is  one  of  fact.  Where  the 
seller  deals  with  an  agent  resu'ent  in  this 
country  and  acting  for  a  foreign  jirincipal, 
the  presumption  is  that  the  seller  does  not 
contract  with  the  foreigner  and  trust  him, 
but  with  the  party  with  whom  he  makes 
the  bargain.  This  is  a  question  of  fact, 
and  not  of  law."  See  also  Wilson  v.  Zu- 
lueta,  14  Q.  15.  405,  416;  Oelricks  v.  Ford, 
23  How.  49,  65;  Kisbourg  i;.  Bruckner,  3 
C.  B.  N.  s.  812,  824.  And  see  Rogers  v. 
March,  33  Me.  106,  112,  laying  down  the 
rule  exactly  as  in  Story's  Agency,  §  268. 
We  observe  that  in  the  last  edition  of 
Story  on  Agency,  p.  326,  note  2,  the 
editor  abandons  the  princijde  laid  down 
by  the  author  in  the  text,  and  says  : 
"But  the  true  rule  seems  to  be  that  an 
agent  of  a  foreign  principal  is  not,  as  a, 
matter  of  law,  jtersonally  liable  on  such 
contracts  ;  but  it  is  a  question  of  fact  for 
the  jury  in  each  case,  to  be  decided  by 
the  peculiar  circumstances,  whether  he  is 
liable  on  the  particular  contract  in  each 
case."  And  yet  in  the  recent  English 
case  of  Paice  r.  Walker,  L.  R.  5  Ex.  173, 
178,  we  find  Clensby,  B.,  referring  to  the 
principle  as  laid  down  by  Story  in  his 
Agency,  and  Smith  in  his  Mercantile 
Law,  as  though  its  fallacy,  as  so  broadly 
stated  by  them,  had  not  been  exposed,  as 
it  has  been,  over  and  over  again.  It  goes 
to  show,  when  once  an  erroneous  pro])osi- 
tion  in  law  is  established  on  the  sem- 
blance of  authority,  how  difficult  it  is  to 
eradicate  the  error.  Incidentally  the  mat- 
ter is  referred  to  further  in  the  next  sec- 
tion of  this  Part. 

We  think  the  mistake  which  has  been 
made  that  there  is  a  presumption,  as  a 
principle  of  law,  that  when  a  contract  is 
made  with  a  home  agent  for  a  foreign  prin- 


11 

1 

'1    '' 

if 

i; 

1 

i'j 

I  'I 


i 


ml 


'I    .!■ 


616 


COMMENTARIES  ON  SALES. 


[book  II. 


2.  Effect  op  Agents  Signing  Contracts  in  their  own  Namhs. 

As  unsettled  as  the  law  has  been  with  rofcrcneo  to  the  effect  of 
a  contract  made  by  an  agent  for  a  foreign  principal,  and  wliicli 
we  have  considered  in  the  preceding  section  of  this  I*urt,  it  was 
not  more  so  than  the  law  has  been  with  reference  to  the  sulijoet 
wc  consider  in  this  section.  Wo  examine  some  of  the  casts  on 
the  subject. 

In  Puice  v.  Walker,*  which  we  examine  more  fully  after  stating 
some  other  cases,  it  was  held  that  where  a  contract  is  siurnod  l»v 
a  person  without  any  words  importing  agency,  the  person  so  simiinj,' 
is,  by  virtue  of  the  contract,  both  entitled  and  liable,  unless  in  the 
body  of  the  contract  a  contrary  intention  is  clearly  shown.  And 
in  this  case,  where  the  agents  signed  the  contract  simply  "  Walker 
&  Strange,"  they  were  held  liable  us  principals,  although,  in  the 
body  of  the  contract,  was :  "  Sold  P.,  London,  200  quarters  wheat, 
as  agents  for  J.  S.  &  Co.  of  Danzig,"  etc. ;  this  language  Ijeinjr 
held  to  be  more  matter  of  description,  and  not  showing  that  the 
contract  was  made  by  the  agent  for  his  principals  for  the  j)iir|iose 
of  binding  them,  and  not  himself.  The  decision  in  this  case  fol- 
lowed that  of  Lennard  v.  Robinson,'*  where  the  agents  in  London 
signed  a  charter-parter  "  by  authority  of,  and  as  agents  for,  S.  of 
Memel ; "  and,  notwithstanding  this,  it  was  unanimously  hold  by 
the  Court  of  Queen's  Bench,  that  this  did  not  show  that  they  were 
making  the  contract  for  S.,  but  tl.at  the  language  in  the  bodv  of 
the  contract  prevailed,  which  showed  that  the  defendants  w  re 
contracting  for  themseU,  " 

It  was  sought  by  Cleasb^,  ^    'n  Paice  v.  Walker,^  to  put  that 


cipal,  the  foreign  principal  is  not  liable  on 
the  contract,  lias  arisen  from  tiie  improper 
application  of  the  general  rule  in  the  law 
of  agency  that  the  principal  is  liable  for 
the  contracts  of  his  agent.  There  are  lim- 
itations to  that  rule  which  include  miiiiy 
cases  where  a  foreign  ])rin(!ipal  buys  gcod*! 
through  a  home  factor  or  commission  Mtn  • 
chant ;  but  they  are  based  on  the  i(ii?a 
that  the  agent  stands  towards  the  ^"llc- 
of  the  goods  and  the  purchaser  of  ilr  in  as 
a  kind  of  intermediate  or  quasi  principal. 
We  think  where  that  relation  exists  the 
home  principal  is  aa  much  exempt  from 
liability  as  the  foreign  principal  is.  The 
distinction  tnat  has  oeen  taken  as  regards 
the  foreign  principal  is  simply,  we  think, 
the  result  of  a  misconception  as  to  what 
the  rule  is  as  to  the  liability  generally  of 
a  principal  on  a  contract  which  has  been 
made  by  the  agent  in  his  own  name  and 
on  his  own  credit.  We  think  the  cases  of 
Smyth  V.  Anderson,  7  C.  B.  21,  and  Arm- 
strong V.  Stokes,  L.  R.  7  Q.  B.  598,  as  il- 


li.^  "five  cases,  are  very  iniportiiiit  on  this 
question.  The  former  was  tiic  iiisf  of 
a  foreign  principal,  and  the  hitltr  that 
of  a  home  principal,  and  in  Imili  tlie 
principal  was  held  not  liable  —  but  only 
m  both  cases  because  the  prii]ci|«il  had 
pair',  the  factor  —  on  the  contnirl  nf  his 
"agent"  (more  properly  in  such  ciisi's  a 
])rincipal  or  quasi  principal),  tlie  "]i:in- 
cipal '  having  in  good  faith  jKiid  the 
"agent,"  before  notice  was  given  tn  liim, 
or  application  was  made  to  iiim  by  tlie 
seller.  See  post,  where  we  coiisiilcr  tlie 
general  question,  in  our  note  K,  Arm- 
strong V.  Stokes,  L.  K.  7  tj.  I?.  .li'S,  The 
general  question  itself  is  involved  in  such 
confusion,  which  we  have  eiidoMvorcd  to 
remove,  that  it  is  not  strange  timtoneof 
its  collateral  questions  should  not  bu  cun- 
spicuous  for  clearness. 

1  L.  R.  5  Ex.  173. 

a  5  El.  &B1.  12.5. 

*  L.  B.  5  Ex.  173,  178. 


PART   VIII.  J 


AGENCY. 


617 


case  very  strongly  on  the  ground  that  it  was  a  contract  for  a  for- 
eign principal,  and  that,  therefore,  the  broker  was  liable.    Ho 
says :  "  I  do  not  object  at  all  to  the  view  expressed  by  the  rest  of 
tlic  court,  but  I  am  not  disposed  to  reject  or  to  give  loss  than  con- 
siderable weight  to  the  fact  that  this  contract  shows  on  the  face 
of  it  that  it  was  made  on  account  of  a  foreign  principal.     It  is  laid 
down  in  Buller,  N.  P.,  p.  130,  that '  where  a  factor  to  one  beyond 
sea  buys  or  sells  goods  for  the  [)er8on  to  whom  he  is  factor,  an 
action  will  lie  against  or  for  him  in  his  own  name  ;  for  the  credit 
will  l»c  presumed  to  be  given  to  him  in  the  first  case,  and  in  the 
last  the  promise  will  be  presumed  to  be  made  to  him,  and  the 
ratlicr  so  as  it  is  much  for  the  benefit  of  trade ; '    the  author 
only  qualifies  this  by  adding  that  there  is,  nevertheless,  a  contract 
also  with  the  principal.     In  an  old  case  of  De  Gaillon  v.  L'Aiglc,' 
Eyre,  C.  J.,  says :  '  I  am  not  aware  that  I  have  ever  concurred  in 
any  decision  in  which  it  has  been  held  that  if  a  person,  describing 
hinisi'lf  as  agent  for  another  residing  abroad,  enters  into  a  con- 
tract here,  he  is  not  personally  liable  on  the  contract.'    The  same 
view  is  adopted  and  expressed  in  Story  on  Agency,  §§  400,  401, 
and  in  Smitli's  Mercantile  Law,  p.  164  (7th  ed.)  ...  If  the  prin- 
ciples 1  have  referred  to  are  aj)plied  here,  the  defendants,  who 
have  signed  in  their  own  name,  without  any  qualification,  must  be 
held  to  have  contracted  personally."     Pigott,  B.,  lays  less  stress 
on  it,  treating  it  as  one  of  the  circumstances  to  be  taken  into  con- 
sideration in  the  case  in  construing  the  contract.     He  says,  first 
quoting  from  Cresswell,  J.,  in  Cooke  v.  Wilson  :  2  .- '  Primd  facie 
when  a  man  signs  a  contract  in  his  own  name,  he  is  a  contracting 
party  ;  and  there  must  be  something  very  strong  upon  the  face  of 
the  instrument  to  prevent  that  liability  from  attaching  to  him.' 
That  applies  to  the  present  case.     Then  is  there  anything  in  the 
body  of  the  contract  to  relievo  the  defendants  from  their  liability  ? 
The  words  relied  on  are, '  as  agents  for  John  Schmidt  k  Co.  of 
Danzig.'     Now,  in  Lennard  v.  Robinson,^  it  was  said  by  Coleridge, 
J.,  that  the  fact  that  the  defendants  were  acting  for  a  foreign 
principal,  was  a  circumstance  to  be  taken  into  consideration.     In 
my  judgment,  taking  into  consideration  that  circumstance,  which 
also  appears  in  this  contract,  and  the  further  fact  that  the  cargo 
is  to  he  taken,  not  at  Danzig  but  at  London  (etc.),  the  defendants 
must  be  held,  on  the  true  construction  of  the  contract,  to  have 
contracted  personally  with  the  plaintiff."    No  stress  whatever  was 
laid  upon  it  by  Martin,  B.  (who  merely  refers  to  it  en  passant), 
who  says :  "  1  infer  .  .  that  the  name  of  their  foreign  principals 


>  1  R.  &  p.  368. 

»  1  C.  B.  M.  8.  163,  162. 


*  5  E.  &  fi.  at  p. 
at  p.  277. 


131  ;  24  L.  J.  Q.  B. 


If 

f 

Mi 

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1 

1  i 

j: 

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t 

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ii 

»      I, 

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4 

i;  ' 

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■  r 

■ :'  ;  ''  [ 

E['^% 

518 


COMMENTARIES  ON  SALES. 


[book  II. 


was  inserted  merely  as  a  notice  to  the  other  contracting  party,  or  an 
earmark  of  the  contract,  to  distinguish  it  as  one  made  by  tliem  in 
pursuance  of  their  commission  or  agency."  But  Kelly,  C.  B.,  went 
still  further,  and  said  :  "In  dealing  with  the  case,  1  do  not  reU- 
on  the  circumstance  that  the  alleged  principals  appear  on  the  face 
of  the  contract  to  be  foreigners  resident  abroad.  When  that  cir- 
cumstance appears  in  the  contract,  it  may  or  may  not  have  the 
effect  contended  for.  I  place  no  reliance  on  it."  This,  of  course, 
means  in  this  particular  case,  not  that  the  learned  chief  baron 
never  placed  any  reliance  on  it. 

In  Gadd  v.  Houghton,'  in  the  Court  of  Appeal,  where,  on  the 
face  of  the  contract,  the  names  of  the  foreign  principals  are  dis- 
closed, —  "  Sold  to  you  on  account  of  James  Morand  &  Co.,  Val- 
encia," —  the  fact  of  the  contract  having  been  made  by  the  agent 
so  as  to  bind  himself  personally,  because  the  contract  disclosed 
that  it  was  made  for  foreign  principals,  is  not  even  adverted  to  in 
the  most  remote  way  by  either  of  the  learned  judges  who  decided 
that  case.     We  consider  this  case  further. 

The  question  decided  in  Paicc  v.  Walker  ^  came  up  again,  in  ef- 
fect, in  the  Court  of  Appeal,  in  Gadd  v.  Houghton,^  which  was  an 
action  for  non-delivery  of  oranges  sold  by  the  defendants  to  the 
plaintiff.  The  sold  note  contained  these  words  :  "  We  have  this 
day  sold  to  you  on  account  of  James  Morand  &  Co.,  Valencia," 
etc.,  and  was  signed  by  the  defendants,  "  J.  C.  Houghton  &  Co.," 
without  any  addition.  The  contract  not  having  been  pcrf')iined, 
the  plaintiff  brought  an  action  against  the  defendants.  It  was 
claimed  for  them  on  the  trial,  before  Pollock,  B.,  that,  upon  the 
contract,  Morand  <fe  Co.,  and  not  the  defendants,  were  liable.  A 
verdict  was  entered  for  the  defendants,  with  leave  for  the  plain- 
tiff to  move  to  enter  it  for  him,  on  the  ground  that  the  defendants 
were  personally  liable  on  the  contract.  The  Exchequer  Division, 
on  motion,  so  ordered,  on  the  ground  that  the  case  was  undistin- 
guishable  from  Paice  v.  Walker.  On  appeal  to  the  Court  •  f  A|»- 
peal,*  this  decision  was  reversed.  As  far  as  the  ground  upon 
which  Paice  v.  Walker  was  expressly  decided,  as  we  have  shown 
above,  it  is  clear  that  that  cnse  is  overruled  by  Gadd  v.  Hough- 
ton. In  this  latter  case,  James,  L.  J.,  said :  "  As  to  Paice  v. 
Walker,  I  cannot  conceive  that  the  words  'as  agents'  can  be 
properly  understood  as  implying  merely  a  description.  The  word 
'  as,'  seems  to  exclude  that  idea.  If  that  case  were  now  before 
us,  1  should  hold  that  the  words  '  as  agents,'  in  that  case,  had  i\r 
same  effect  as  the  words  '  on  account  of,'  in  the  present  case,  and 


1  1  Ex.  Dlv.  357. 

2  L.  R.  5  Ex.  173. 


»  1  Ex.  DW.  357. 

*  Gadd  I'.  Houghton,  1  Ex.  Div.  357. 


PART  VIII.] 


AGENCY. 


619 


that  the  decision  in  that  case  ought  not  to  stand.  I  do  not  dis- 
sent from  the  principle  that  a  man  does  not  relieve  himself  from 
liability  upon  a  contract  by  using  words  which  are  intended  to  be 
merely  words  of  description,  but  I  do  not  think  the  words  '  as 
agents,'  were  words  of  description." 

The  language  in  Paice  v.  Walker,  is:  "  Sold  ...  as  agents  for 
John  Schmidt  ^  Co., of  Danzig."  That  in  Gadd  v.  Houghton,  is: 
"  Sold  on  account  of  James  Morand  ^  Co.^  Valencia."  All  of  the 
other  judges  (Mellish,  L.  J.,  Baggallay,  L.  J,,  Quain  and  Archibald, 
JJ.)  concurred  with  James,  L.  J.,  that  '■^as  agents''''  in  the  one  case, 
and  "on  account  of''  in  the  other,  were,  in  effect,  the  same;  and 
as  far  as  Paice  v.  Walker  is  decided  adversely  to  Gadd  v.  Houghton, 
on  this  point,  as  far  as  the  use  of  the  language  named  is  concerned 
—  and  it  was  expressly  decided  on  that  ground — we  think  it  has 
been  clearly  overruled.  And  yet  we  think  that  Paice  v.  Walker  is 
not  overruled  by  Gadd  v,  Houghton.  James,  L.  J.,  notwithstanding 
what  we  have  quoted  from  him  above,  and  although  Pollock,  B., 
in  Hough  v.  Manzanos,^  states  that  he  was  unable  to  appreciate 
the  distinction  drawn  by  James,  L.  J.,  between  the  two  cases,  but 
that  that  distinction  left  Paice  v.  Walker  an  authority  binding 
upon  him,  —  does,  very  clearly,  and  we  think,  on  very  good 
grounds,  distinguish  Paice  v.  Walker  from  Gadd  v.  Houghton. 
The  language  of  James,  L.  J.,  is  :  "  The  case  is  not,  in  my  opin- 
ion, in  any  way  governed  by  Paice  v.  Walker,  for  whatever  the 
decision  was  in  that  case  upon  the  words  '  as  agents^'  the  words 
in  the  present  case,  *  on  account  of,'  are  not  at  all  ambiguous,  and 
it  would  be  impossible  to  make  them  words  of  description.  The 
ratio  decidendi  in  Paice  v.  Walker,  was  that,  HAVixa  regard  to 

THE    CONTRACT    AND    ALL  THE    CIRCUMSTANCES    OP    THE    CASE,   the 

words '  as  agents '  must  be  considered  as  merely  describing  or  inti- 
mating the  fact  that  the  defendants  were  agents,  a7id  did  not  amount 
to  a  statement  that  they  were  making  a  bargain  *  on  account  of* 
another  person.  Those  are  '.he  very  words  used  in  the  prcaeat 
case.  When  a  man  says  that  he  is  ma'ang  a  contract '  on  account 
of '  some  one  else,  it  seems  to  mo  that  iie  uses  the  very  strongest 
terms  the  English  language  affords  to  show  that  he  is  not  binding 
himself,  but  ]<is  principal."  Both  of  these  apparently  antagonisuic 
views  are,  also,  to  be  found  in  the  judgment  of  Mellish,  L.  J.  He 
expressly  concurs  in  the  whole  judgment  of  James,  L.  J.  Ho 
adds  :  "  A»  is  said  in  the  note  to  Thomson  v.  Davenpori,'-'  when  a 
man  sip^ns  a  con* ''".it  in  his  own  name,  he  is  primd  facie  a  con- 
tracting party  auJ  liable,  and  there  must  be  something  very  strong 
on  the  face  of  the  instrument  to  show  that  the  liability  docs  not 

>  4  Ex.  Div.  104.  3  2  Sm.  L.  C,  6th  ed.,  34 1. 


r :!: 


520 


COMMENTARIES   ON  SALES. 


[book  II. 


attach  to  him.  But  if  there  are  plain  words  to  show  that  he  is 
contracting  on  behalf  of  somebody  else,  why  are  we  not  to  give 
effect  to  them  ?  1  can  see  no  difference  between  a  man  writing '  I, 
A.  B.,  as  agent  for  C.  D.,  have  sold  to  you,'  and  signing  'A.  B. ;' 
and  his  writing  '  I  have  sold  to  you,'  and  signing '  A.  B.,  for  C.  D., 
the  seller.'  When  the  signature  comes  at  the  end,  you  apply  it 
to  everything  which  occurs  throughout  the  contract.  If  all  that 
appears  is  that  the  agent  has  been  making  a  contract  on  behalf  of 
some  other  person,  it  seems  to  me  to  follow  of  necessity  that  that 
other  person  is  the  person  liable.  This  is  one  of  the  simplest  pos- 
sible cases.  How  can  the  words  '  on  account  of  Morand  &  Co.,' 
be  inserted  merely  as  a  description  ?  The  words  mean  that  Mo- 
rand &  Co.  are  the  people  who  have  sold.  It  follows  that  the  per- 
sons who  have  signed  are  merely  the  brokers,  and  are  not  liable." 

All  this  is  quite  as  applicable  to  "  sold  as  agents  for  J.  S.  &  Co.," 
as  it  is  to  "  sold  on  account  J.  M.  &  Co."  And  yet  the  very  next 
words  of  Mellish,  L.  J.,  are  :  "  I  agree  also  that  the  circumstances 
of  Paice  v.  Walker  are  to  be  distinguished  from  the  present." 
And  Quain,  J. :  "  It  is  said  that  in  order  to  relieve  the  agent  from 
liability,  he  must  sign  '  as  agent,'  or  '  on  account  of '  [treating 
these,  as  do  the  other  judges,  as,  in  effect,  virtually  synonymous] 
Morand  &  Co.  I  cannot  see  the  necessity  for  adding  those  words 
to  the  signature,  if  you  can  gathe"  from  the  contract  that  he  makes 
it  on  account  of  Morand  &  Co.  Those  words  at  the  end  of  the 
signature  would  add  nothing  to  what  has  been  stated  in  the  body 
of  the  contract.  The  agent,  therefore,  does  not  render  himself 
personally  liable  by  not  adding  them."  And  Archibald,  J. :  "1 
am  of  the  same  opinion.  The  usual  way  in  which  an  agent  con- 
tracts so  as  not  to  render  himself  personally  liable,  is  by  signing 
as  agent.  That,  however,  is  not  the  only  way,  because  if  it  is 
clear  f.'om  the  body  of  the  contract  that  he  contracted  only  as  agent, 
he  would  save  his  liability.  No  words  could  be  plainer  than  tl  e 
words  '  on  account  of  Morand  &  Co.,'  to  show  that  the  defendants 
contracted  only  as  agents."  And  yet,  although  all  this  is  equally 
as  applicable,  in  effect,  to  the  language  referred  to  in  Paice  v. 
Walker  as  it  is  to  that  in  Gadd  v.  Houghton,  he,  too,  like  the 
other  able  judges,  adds :  "  /  also  agree  that  Paice  v.  Walker  is 
to  be  distinguished  from  this  case  J'* 

We  think  tho  rules  of  law,  fairly  deducible  in  the  matter, 
are :  — 

First.  When  a  man  signs  a  contract  in  his  own  name,  he  is 
primd  facie  a  contracting  party  and  liable,  and  thee  must  be  some- 
thing very  strong  on  the  face  of  the  instrument  to  show  that  tlie 
liability  does  not  attach  to  him. 


PART   VIII.] 


AGENCY. 


521 


Second.  When  a  man  signs  his  name  to  a  contract  and  does 
not  add  to  his  signatuie  any  language  to  the  effect  that  he  is  act- 
ing as  the  agent  or  on  account  of  any  one  else  ;  but  does  show,  in 
the  body  of  the  contract,  that  he  is  acting  as  the  agent  or  on  ac- 
count of  some  one  else,  and  there  is  nothing  otherwise  in  or  con- 
nected with  the  contract  which  shows  i-hat  this  is  not  merely 
matter  of  description,  then  he  is  not  the  contracting  party  and  is 
not  liable. 

Third.  But,  though  not  signing  his  name  as  the  agent,  or  as 
octing  on  account  of  any  one  else,  and  yet  stating  in  the  body  of 
the  contract  that  he  is  acting  as  the  agent,  or  on  account  of 
some  one  else,  and  there  is  that  in  and  connected  with  the  con- 
tract which  shows  that  such  statement  is  merely  matter  of  descrip- 
tion, then  he  is  the  contracting  party  and  is  liable. 

With  all  deference,  we  think,  —  although  the  term  "  sold  on  ac- 
count of  J.  M.  &  Co.,"  in  Gadd  v.  Houghton,  may  be  appreciably 
stronger  than  its  very  near  equivalent,  "  sold  as  agent  of  J.  S.  & 
Gi  .*'  \a  Paice  v.  Walker — that  either  of  these  expressions  may 
J  ; .        'thin   the  third  rule  we  have  above  deduced  from  the 

-  ;.  But,  "  having  regard  to  the  contract  and  all  the  circuin- 
staucos  of  the  case,"  there  is  nothing  whatever  in  Gadd  v.  Houghton 
which  does  show  that  the  term  "  on  account  of  J.  M.  &  Co."  is 
matter  of  description  ;  while  in  Paice  v.  Walker,  having  regard  to 
tlie  contract  and  all  the  circumstances  of  the  cj^e,  there  is  some- 
thing to  show  that  the  term  "  as  agent  of  J.  S.  <fc  Co."  was  merely 
matter  of  description.  And  one  very  strong  thing  to  show  that 
the  defendants  in  this  case  (and  which,  doubtless,  had  its  effect 
on  the  opinions  expressed  by  the  very  able  judges  of  the  Exche- 
quer Chamber)  did  use  that  language  —  "  sold  as  agents  of  J.  S. 
k  Co."  —  merely  .^s  matter  of  description,  is  that,  in  that  case, 
ihey  themselvc;' r-f'tod  as  principals  —  as  sellers  —  in  connection 
with  the  contr  i;'t.  Kelly,  C.  B.,  incidentally  refers  to  this,'  where, 
referriug  tr.  v  !>  t  '  afterwards  passed  between  the  parties,"  he 
says :  "  By  ^li,  •'  i(  ap))ears  that  the  defendants,  so  far  from  deny- 
ino;  that  they  wc/»  imrt  c-s  to  the  contract,  acted  as  sellers  by  draw- 
ing upon  the  plainn./;*  in  their  own  name."  Tiien,  in  the  contract, 
while,  in  connection  with  the  sale^  they  describe  themselves  "  as 
agent  for  J.  S.  &  Co.,"  they  enter  into  a  guarantee  without  any 
intimation  that  they  are  doing  sc  "  as  agents  of  J.  S,  &  Co.,"  and 
that  is  part  of  the  contract  signed  by  them.  And,  in  the  contract, 
they  say  that  tlie  payment  is  "  by  buyers'  acceptance  to  sellers' 
drafts,"  and  not  only,  as  intimated  by  Kelly,  C.  B.,  did  they,  in 
drawing  iv.  i  icir  own  names,  act  as  sellers,  but  by  so  doing,  in 

'  Fai  :e  v.  Walker,  L.  R.  6  Ex.  at  p.  176. 


If 


i:     f 


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^    .   ^1 


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I; 


i  i::  m 


m 


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n't 


i.  1  ' 


'''  ^ 

.t: 


M 


522 


COMMENTARIES  ON  SALES. 


[book  II. 


effect,  they  declared  that  they  were  the  sellers.  And  this  draft 
which,  as  sellers,  they  drew,  was  accepted,  and  paid  to  them  as  sell- 
ers ;  and,  in  further  recognition  of  this  as  being  according  to  the 
contract  an  acceptance  and  payment  to  them  as  sellers  ^^and  there- 
fore, of  course,  principals),  the  shipping  papers  and  the  goods  pur- 
chased were  —  in  recognition  that  in  treating  them  as  sellers,  the 
plaintiffs  had  a  right  to  do  so  —  handed  over  by  the  thus  pro- 
fessed and  acting  sellers,  to  the  buyers.  None  of  these  circum- 
stances or  any  at  all  analogous  to  them  are  to  be  found  in  Gadd 
V.  Houghton,  which,  "  having  regard  to  the  contract  and  all  the 
circumstances  of  the  case,"  in  Paice  v.  Walker,  docs  not  overrule 
the  latter  case  in  respect  to  that  contract  and  those  circumstances. 

Where>  in  Fairlie  v.  Fenton,^  the  words  were,  "  sold  you  on  ac- 
count of  T.,"  signed  "  El.  F.,  broker,"  and  where  the  same  judges 
sat  who  decided  Paioe  v.  Walker,  —  Kelly,  C.  B.,  makes  a  general 
statement  covering  cases  ;  thus  :  "  A  broker  may,  no  doubt, 

frame  a  contract  in  b  way  as  to  make  himself  a  party  to  it 

and  entitled  to  sue,  but  when  he  contracts  in  the  ordinary  form, 
describing  and  signinff  himself  as  a  broker^  and  naming  his  princi- 
pal, no  action  is  maintainable  against  him." 

The  ordinary  rule  undoubtedly  is,  that  if  a  person  merely  adds 
to  the  signature  of  his  name  the  word  "  agent,"  "  trustee,"  "  treas- 
urer," etc.,  without  disclosing  his  principal,  he  is  personally  bound. 
The  appendix  is  regarded  as  a  mere  descriptio  personce.  It  does 
not  of  itself  make  third  persons  chargeable  with  notice  of  any 
representative  relation  of  the  signer.  But  if  he  be  in  fact  a,  mere 
agent,  trustee,  or  officer,  of  some  principal,  and  is  in  the  habit  of 
expressing,  in  that  way,  his  representative  character  in  his  deal- 
ings with  a  particular  party,  who  recognizes  him  in  that  character, 
it  would  be  contrary  to  justice  and  truth  to  construe  the  docu- 
ments thus  made  and  used  as  his  personal  obligations  contrary 
to  the  intent  of  the  parties.^ 

The  plaintiff  made  two  contracts  in  writing  with  the  defendants, 
in  his  own  name,  describing  himself  as  agent  for  II.  &  Co.,  and 
signing  the  contract  with  his  own  name,  without  any  addition. 
The  contract  referred  to  him  as  "  the  seller,"  and  also  contained 
the  language  :  "  I  .  .  .  agree  to  sell."  The  purchasers  were  of 
New  York,  where  the  contract  was  to  be  performed.     By  statute 


1  L.  R.  5  Ex.  169. 

a  Metciilf  f.  Williams,  104  IT.  S.  93  ; 
Mechanics'  Bank  v.  Uanit  of  Columbia, 
5  Wheat.  320;  Broikway  v.  Allen,  17 
Wend.  40  ;  Kean  ».  Davis,  21  N.  J.  Law, 
683.  See  Niit.  Bank  v.  ins.  Co.,  104 
U.  S.  54,  where  a  hank  was  charged  with 
knowledge  of  the  fact  that  funds  which 


were  deposited  by  one  of  its  customers  in 
his  own  name  were  in  fuet  deposited  by 
him  as  the  agent  of  an  insiiriince  com- 
pany, so  tiiat  their  lien  as  banki'is  would 
not  attach  to  such  funds  as  njiainst  ad- 
vances made  to  him  by  the  bank  on  his 
personal  account. 


PART   VIII.] 


AGENCY. 


523 


there,  in  the  case  of  contracts  made  by  one  in  his  own  name  for  the 
benefit  of  another,  tlie  party  making  the  contract  is  a  trustee  of  an 
express  trust,  and  an  action  on  the  contract  may  be  brought  in  his 
own  name.'  Independent  of  the  statute,  the  court  recognized  the 
strength  of  the  authorities  in  favor  of  the  right  of  the  plaintiff  to 
sue,  in  his  own  name,  at  common  law,^  but  held  ^  that,  if  the 
agreement  were  a  personal  contract,  the  action  could  be  in  his 
own  name  at  common  law,  and  if  a  contract  for  II.  &  Co.,  the  ac- 
tion could  be  brought  in  New  York,  in  his  own  name,  under  the 
statute.*  Quite  independent  of  the  statute,  we  have  no  doubt  that, 
under  the  form  of  the  contract,  the  action  was  properly  brought 
iu  the  name  of  the  plaintiff.^ 

The  plaintiffs  bought  flour  from  the  defendants,  for  which  the 
following  note  was  given  :  — 

M  .3SU8.  TowNE  &  Washburne  :  — 

Bought  of  Nash  &  Chapiii,  general  commission  merchants,  1000  barrels 
of  flour,  Empire  Mills,  Iowa,  round  hoop,  5^,  $5,500. 

Received  payment,  siglit  draft, 

NaSK    «&   ClIAPIN. 

This  note  of  the  sale  was  enclosed  in  a  letter  from  the  defend- 
ants, to  the  plaintiffs,  containing  the  following  language  :  "  Your 
Mr.  W.  left  liere  yesterday,  and  before  going  off  we  sold  him  1000 
barrels  round  hoop  flour.  Empire  Mills,  Iowa,  free  on  board  steamer 
at  Neenah,  Stfo.SO,  for  which  find  bill  enclosed.  We  have  the  flour 
stored  and  insured,  and  will  value  on  you  at  sight  for  the  amount." 

In  an  action  for  non-delivery  of  the  flour,  the  defendants  sought 
to  give  evidence  that  they  had  sold  the  flour  as  agents,  and  had 
paid  over  the  proceeds  thereof  to  their  principals.  The  presiding 
judge  of  the  Circuit  Court  refused  to  allow  the  evidence,  and  on 
error  to  the  Supreme  Court,®  the  ruling  was  sustained  ;  the  prin- 
ciples applicable  to  the  point  being  thus  correctly  stated  :  "  Parol 
cvidenee  can  never  be  admitted  for  the  purpose  of  exonerating  an 
agent  who  has  entered  into  a  written  contract  in  which  he  appears  as 
principal,  even  though  he  should  propose  to  show,  if  allowed,  that 
he  disclosed  his  agency  and  mentioned  the  name  of  his  princij)al  at 


>  N.  Y.  Code  of  Civil  Procedure,  §  449. 

2  Kitincdv  V.  Oorvcia,  3  D.  &  i{.  503  ; 
Parker  v.  Winslow,  7  E.  &  B.  942  ;  Dut- 
toii  V.  Maish,  k  R.  6  Q.  B.  361  ;  Buffuiii 
I'.  Clindwi -k,  8  Mass.  103;  Packard  i;. 
Nye,  2  Met.  47. 

'  Alliany  &  Rensselaer  Co.  v.  Lund- 
berg,  121  U.  S.  451. 

*  (Oiisiderant  v.  Brislmne,  22  N.  Y. 
389;  Siiwin  i;.  Kcnnv,  93  U.  S.  289;  Weed 
•Win«  Machine  Co.' r.  Wicks,  3  Dill.  261; 
I'nitcd  States  v.  Tracy,  8  Bened.  1. 

'  In  the  case  of  a  contract  made  by  an 


agent  for  his  principal,  the  contract  show- 
ing on  its  face  the  name  of  the  contract- 
ing parties,  the  agent  may  either  sign  his 
own  name  first,  and  add  to  it  agent  for 
his  principal,  or  he  may  sign  the  name 
of  his  princiml  first,  and  add  ))y  himself, 
as  agent.  Either  form  may  be  followed. 
All  that  is  required  in  such  case  is  that 
the  contract  shall  purjiort  on  its  fuce  to 
be  the  contract  of  the  principal.  Smith 
V.  Morse,  9  Wall.  76,  82. 

8  Nash  V.  Towne,  5  Wall.  689. 


l;:  .1 


',1     ii    '■  f-  *  K    ;    £3 


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^        ''        '        (        „  i^ 


nt 


524 


COMMENTARIES  ON  SALES. 


[book  II. 


the  time  the  contract  was  executed.*  Where  a  simple  contract, 
other  than  a  bill  or  note,  is  made  by  an  agent,  the  principal  whom 
he  represents  may,  in  general,  maintain  an  action  upon  it  in  his 
own  name,  and  parol  evidence  is  admissible,  although  the  contract 
is  in  writing,  to  show  that  the  person  named  in  the  contract  was 
an  agent,  and  that  he  was  acting  for  his  principal.  Such  ovii'ence, 
says  Baron  Parke,  does  not  deny  that  the  contract  binds  those 
whom  on  its  face  it  purports  to  bind,  but  shows  that  it  also  binds 
another,  and  that  principle  has  been  fully  adopted  by  this  court.^ 
Cases  may  be  found,  also,  where  it  is  held  that  the  plaintiif  may 
prove  by  parol  that  the  other  contracting  party  named  in  the  con- 
tract war  but  the  agent  of  an  undisclosed  principal,  and  in  that 
state  of  the  case  he  may  have  his  remedy  against  either  at  his 
election.^  Evidence  to  that  effect  will  be  admitted  to  cliarge  the 
principal  or  to  enable  him  to  sue  in  his  own  name,  but  the  agent 
who  binds  himself  is  never  allowed  to  contradict  the  writing 
by  proving  that  he  has  contracted  only  as  agent,  and  not  as 
principal."  * 


•      1  Higgins  V.  Senior,  8  M.  &  W.  844. 

2  New  Jersey  Steam.  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  381  ;  Ford  v.  Wil- 
liams, 21  How.  289  ;  Oelrieks  v.  Ford, 
23  How.  03. 

»  Thomson  v.  Davenport,  9  B.  &  C.  78. 

*  Jones  V.  Littledale,  6  A.  &  E.  486  ; 
Titus  V.  Kyle,  10  Ohio  St.  444. 

The  ijuestion  arose  in  Ford  v.  Wil- 
liams, 21  How.  287,  whether  the  principal 
can  maintain  an  action  on  a  written  con- 
tract, made  by  an  agent  in  lus  o'vn  name, 
without  disclosing  the  name  of  the  princi- 
pal, and  the  Supreme  Court  of  the  United 
States,  in  deciding  that  he  could,  thus 
laid  down  the  principles  applicable  to  the 
question:  "  It  is  not  necessary  to  the  va- 
lidity of  a  contract,  under  the  statute  of 
frauds,  that  the  writing  disclose  the  prin- 
cipal. In  the  brief  memoranda  of  these 
contracts  usually  made  by  brokers  and  fac- 
tors, it  is  seldom  done.  If  a  party  is  in- 
formed that  the  person  with  whom  he  is 
dealing  is  merely  the  agent  for  another, 
and  prefers  to  deal  with  the  agent  person- 
ally on  his  own  credit,  he  will  not  be 
allowed  afterwards  to  charge  the  princi- 
pal ;  but  when  he  deals  with  the  agent, 
without  any  disclosure  of  the  fact  of  his 
agency,  he  may  elect  to  treat  the  after- 
discovered  principal  as  the  person  with 
whom  he  contracted.  The  contract  of  the 
agent  is  the  contract  of  the  principal,  and 
he  may  sue  or  be  sued  thereon,  though  not 
named  therein  ;  and  notwithstanding  the 
rule  of  law  that  an  agreement  reduced  to 
writing  may  not  be  contradicted  or  varied 
by  parol,  it  is  well  settled  that  the  prin- 


cipal may  show,  that  the  agent  who  made 
the  contract  in  his  own  name  was  acting 
for  him.  This  proof  does  not  cuntiadiet 
the  writing  ;  it  only  e.xplains  the  trans- 
action. But  the  agent  who  binds  himself 
will  notjbe  allowed  to  contradict  the  writ- 
ing by  proving  that  he  was  contracting 
only  as  agent,  while  the  same  eviilence 
will  be  admitted  to  charge  the  primipal. 
'Such  evidence,'  says  Baron  Parke,  Sloes 
not  deny  that  the  contract  binds  those 
whom  on  its  face  it  purports  to  bind,  but 
shows  that  it  also  binds  another  by  reason 
that  the  act  of  the  agent  is  the  act  of  the 
principal.'"  See  Higgins  v.  Senior,  8  M. 
&  W.  843  ;  New  Jersey  Steam  Nav.  Co. 
V.  Merchants'  Bank  6  How.  381  ;  Moore 
V.  Clementson,  2  Camp.  2'2;  Sims  v.  lind, 
5  B.  &  Ad.  393;  Beebee  v.  Kohi-rt,  12 
Wend.  413  ;  Taintor  v.  Prenderpist,  3 
Hill,  72  ;  .Sanderson  v.  Lanibcrton,  (i  Hinii. 
129  ;  Fogg  V.  Virgin,  19  Me.  3;'i3  ;  Tnisk 
V.  Roberts,  1  B.  Mon.  202  ;  liiadly  v. 
Boston  Glass  Co.,  16  Pick.  32  ;  .Magee  i'. 
Atkinson,  2  M.  &  W.  440  ;  Sowerby 
V.  .Butcher,  2  C.  &  M.  371  ;  Pentz  i: 
Stanton,  10  Wend.  277. 

L.  &  Co.,  cotton  brokers  at  Liverpool, 
sold  to  the  appellants  cotton  for  Future  de- 
liveries. L.  &  Co.  made  the  sales  in  their 
own  names,  but  were  really  acting  its 
agents  for  the  respondent's  insolvent,  their 
undisclosed  principal.  The  result  of  the 
transaction  was  that  a  sum  of  .£680  was 
due  by  the  appellants  to  L.  &  Co.  L.  & 
Co.  having  failed,  the  plaintiff  bronght 
an  action  against  the  appellants,  who 
claimed  to  set  off,  in  defence,  money  due 


PART   VIII.J 


AGENCY. 


625 


The  defendants,  M.  and  W.,  fruit  brokers  in  London,  being  em- 
ployed by  the  plaintiffs,  merchants  in  London,  to  sell  for  them, 


from  L.  &  Co.  to  the  defendants  in  gen- 
eral account.  The  defendants,  in  answer 
to  interrogatories  as  to  their  belief,  stated  ; 
"  We  had  no  belief  on  the  subject.  We 
dealt  with  L.  &  Co.  as  principals,  not 
knowing  whether  they  were  acting  as 
brokers  on  behalf  of  principals,  or  on 
their  own  account  as  the  principals."  At 
the  trial,  before  Baggallay,  L.  J.,  it  was 
proved  tliat  L.  k  Co.  bought  and  sold  both 
lor  principals  and  on  their  own  account, 
and  that  tne  defendants  knew  this.  Bag- 
gallay, L.  J.,  held  that  the  defendants  were 
entitled  to  the  set-off,  and  gave  judgment 
for  thoin.  The  Court  of  Appeal  reversed 
this  decision,  i  d  entered  judgment  for  the 
]ilttiutitr  for  tlie  amount  claimed,  on  the 
pround  that  the  defendants  were  not  en- 
titled to  the  set-off  unless  they  had  been 
induced  by  the  conduct  of  the  principal 
to  believe,  and  did  in  fact  believe,  that 
they  were  dealing  with  L.  &  Co.  as  the 
priiieipiils.  On  appeal  to  the  House  of 
Lords  (Cooke  v.  Eshelby,  12  App.  Cas. 
271),  the  decision  of  the  Court  of  Ap]ieal 
was  aflirnied.  In  so  deciding.  Lord  llals- 
bury,  L.  C,  thus  laid  down  the  principle 
governing  the  case :  '•  It  appears  to  me 
that  the  principle  upon  which  this  case 
must  be  (lecided  has  been  so  long  estab- 
libht'd,  tluit,  in  such  a  state  of  facts,  the 
legal  result  cannot  be  doubtful.  The 
eround  upon  which  all  these  cases  have 
Men  decided,  is  that  the  agent  has  been 
permitted  by  the  principal  to  hold  himself 
out  as  the  principal,  and  that  the  person 
dealing  with  the  agent  has  believed  that 
tlie  agent  was  the  principal,  and  has  acted 
on  that  belief,  \vith  reference  to  both 
tliese  pro]>ositions,  namely,  firet,  the  per- 
mission of  the  real  principal  to  the  agent 
to  assume  his  character,  and  with  refer- 
ence to  the  fact  whether  those  dealing  with 
the  supposed  principal  have  in  fact  acted 
upon  the  belief  induced  by  the  real  priii- 
cipal's  conduct,  various  difficult  questions 
«f  fact  have  from  time  to  time  arisen  ; 
Imt  I  do  not  believe  that  any  doubt  has 
ever  been  thrown  upon  the  law  as  decided 
tiy  a  great  majority  of  judges  for  some- 
tliing  more  than  a  century.  .  .  .  The  sell- 
ing by  a  broker  in  his  own  name,  is  only 
one  fact,  and  by  no  means  a  conclusive 
fact,  from  whi^'h,  in  the  absence  of  other 
nrcumstances,  it  might  be  inferred  that 
lie  was  selling  his  own  goods.  Upon  the 
farts  proved  or  admitted  in  this  case,  the 
fact  of  selling  in  the  broker's  name  was 
neither  cnlculated  to  induce,  nor  did  in 
fact  induce  that  belief."  Lord  Watson 
Mid :  "  In  order  to  sustain  the  defence 
pleaded  by  the  appellants,  it  is  not  enough 


to  show  that  the  agent  sold  in  his  own 
name.  It  must  be  shown  that  he  sold  tlie 
goods  as  his  own,  or  in  other  words,  that 
the  circumstances  attending  the  sale  were 
calculated  to  induce,  and  did  induce,  in 
the  mind  of  the  purchaser  a  reasonable 
belief  that  the  agent  was  selling  on  his 
own  ac(^ount,  and  not  for  an  undisclosed 
principal  ;  and  it  must  also  be  shown  that 
the  agent  was  enabled  to  appear  as  the 
real  contracting  party  by  the  conduct,  or 
by  the  authority,  express  or  imjilied,  of 
the  principal.  The  rule  thus  explained 
is  intelligible  and  just ;  and  I  agree  with 
Bowen,  L.  J.,  that  it  rests  upon  the  doc- 
trine of  estoppel.  It  would  be  incon- 
sistent with  fair  dealhig,  that  a  latent 
principal  should,  by  his  own  act  or  omis- 
sion, lead  a  purcbaser  to  rely  upon  a  right 
of  set-off  against  the  agent  as  the  real 
seller,  and  should  nevertheless  be  per- 
mitted to  intervene  and  deprive  the  pur- 
chaser of  that  right  at  the  very  time  when 
it  had  become  necessnry  for  his  protec- 
tion." Cooke  V.  Eslielbv,  12  Apji.  Cas. 
271.  In  Semenza  r.  Biiiisley,  18  C.  B. 
N.  8.  467,  477,  it  was  held,  that  one  who 
buys  goods  of  a  person  whom  he  knows  to 
be  selling  them  as  an  agent,  cai'not  set 
off  in  an  action  by  the  principal  for  their 
price  a  debt  due  to  him  by  the  agent, 
even  though  he  did  not  know  at  the  time, 
of  the  purchase,  and  had  not  the  means  of 
knowing  who  was  the  real  owner.  The 
rule  in  George  f.  Clagett,  7  T.  R.  359,  is, 
that  if  a  factor,  who  sells  under  a  del 
credere  commission,  sells  goods  as  his  own, 
and  the  buyer  knows  nothing  of  any  prin- 
cipal, the  buyer  may  set  off  any  demand 
he  may  have  on  the  factor  against  the  de- 
mand for  the  goods  made  by  the  principal. 
Hut  this  rule  is  as  above  qualified  liy  the 
rules  lai<l  down  in  such  cases  as  Cooke  v. 
Kslidbv,  12  Ajip.  Cas.  271,  and  Semenza 
V.  Brinsley,  18  C.  15.  N.  s.  4(i7,  477. 
Thus,  in  this  latter  case,  Willes,  J.,  refer- 
ring to  the  rule  in  (Jeorge  v.  Clagett,  7 
T.  II.  S.'iy,  says  :  "  In  order  to  make  a 
valid  defence  within  the  rule  above  .stated, 
it  is  obvious  that  the  plea  should  show 
that  th(!  contract  wns  made  by  a  person 
whom  the  plaintiff  had  intrusted  with  the 
possession  of  the  goods  ;  that  that  jicrson 
sold  them  as  his  own  goo<ls,  in  his  own 
name,  as  princi])al,  with  the  autiiority  of 
the  plaintiff ;  that  the  defendant  dealt 
with  him  as  anil  believed  him  to  be  the 
principal  in  the  transaction,  and  that  be- 
fore the  defendant  was  undeceived  in 
that  resT)ect,  the  set-off  accrued."  See 
Fish  V.  Kempton,  7  C.  B.  687  ;  Borriea  v. 
Imperial  Ottoman  Bank,  L  R.  0  C.  P.  38; 


ill 


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1  ^1  fl 

I: 


1 


526 


COMMENTARIES  ON  SALES. 


[book  II. 


gave  them  the  following  contract  note  addressed  to  the  plaintiffs: 
"  We  have  this  day  sold  for  your  account  to  our  principal,"  so 
many  tons  of  raisins.  (Signed.)  "  M.  &  W.,  brokers."  Tlie  de- 
fendants' principal  having  accepted  part  of  the  raisins,  and  not 
having  accepted  the  rest,  the  plaintiffs  brought  an  action  on  the 
contract  against  the  defendants,  and  they  sought  to  make  tiie  de- 
fendants personally  liable  by  giving  evidence  that,  in  the  London 
fruit  trade,  if  the  brokers  did  not  give  the  names  of  their  j)iinei- 
pals  in  the  contract,  they  were  held  personally  liable,  altliough 
they  contracted  as  brokers  for  a  principal ;  and  evidence  was  also 
given  of  a  similar  custom  in  the  London  Colonial  Market.  The 
Court  of  Queen's  Bench  held,'  that  the  evidence  of  the  custom  in 
the  same  trade  was  admissible,  as  not  inconsistent  with  the  writ- 
ten contract ;  and  that  the  evidence  of  a  similar  custom  in  the 
Colonial  Market  was  admissible,  being  evidence  in  a  similar  trade 
in  the  same  place,  and  as  tending  to  corroborate  the  evidence  as 
to  the  existence  of  such  a  custom  in  the  fruit  trade.^ 


Norwood  V.  Dresser,  14  C.  B.  n.  s.  574  ; 
17  C.  B.  N.  s.  46(5  ;  Carr  v.  Hinchcliff,  4  B. 

6  C.  551  ;  Pincliell  v.  Salter,  1  Q.  B.  1H7  ; 
Sims  V.  Bond,  5  B.  &  Ad.  389  ;  Baring  v. 
Corvie,  2  B.  &  Aid.  137  ;  Rabone  v.  Wil 
Hams,  7  T.  R.  360  ;  Warner  v.  McKuy, 
1  M.  &  W.  591  ;  Smart  v.  Sanders,  3  C. 
B.  399. 

»  Fleet  V.  Murton,  L.  R.  7  Q.  B.  126. 
*  This  case  followed  Hiiinjthrey  0.  Dale, 

7  E.  &  B.  266 ;  s.  C.  nom.  Dale  v.  Hum- 
phrey, E.  B.  &  E.  1004,  where  defi-udant, 
a  broker,  Iwiiig  employed  by  S.  to  pur- 
chase oil,  signed  a  note  as  follows  :  "  sold 
this  (lay  for  Messrs.  T.,"  plaintitFs  broker, 
"  to  >ur  principals,  ten  tons  of  linseed  oil," 
etc.,  "  quarter  per  cent  brokerage  to  "  de- 
fendant. This  note  defendant  delivered 
to  Messrs.  T.  Defendant  did  not  disclose 
the  name  of  his  principal,  S.,  who  became 
insolvent,  and  did  not  accept  the  oil. 
Plaintitr  then  sued  defendant  for  not  ac- 
cepting the  oil,  laying  the  sale  as  by  him- 
self to  defendant.  Defendant  denied  the 
contract.  On  the  trial  ))laintilf  proved  a 
custom  in  the  trade  that  when  a  broker 
purchased  without  disclosing  the  name  of 
his  principal  he  was  liable  to  be  looked  to 
as  purchaser.  It  was  held  by  the  Court 
of  Queen's  Bench  that  evidence  of  the 
custom  was  admissible,  as  not  contradict- 
ing the  written  instrument,  but  explaining 
its  terms,  or  adding  a  tacitly  implied  inci- 
dent ;  and  that  the  action  lay.  The  judg- 
ment was  atrirmed  on  appeal  to  the  Ex- 
chequer Chamber,  but  by  a  bare  majority 
of  the  judges,  —  four  to  three.  The  judg- 
ment of  tiie  dissenting  judges  was  mainly 
based  on  the  ground  that  the  memorau- 


dnm  of  the  contract  was  insufficient  to 
satisfy  the  statute  of  frauds,  the  jince  of 
the  oil  being  above  £10.  This  |iosition, 
however,  is  clearly  untenable.  The  cus- 
tom or  usage  is  as  much  impliud  in  the 
contract,  as  is  the  meaning  of  ti'dniical 
language  descriptive  of  tlie  goods  sold,  or 
connected  with  their  quantity,  (|iiulity,  or 
price.  The  law  on  this  point  is  well  iind 
accurately  stated  by  Cockhuni,  C.  .1.,  tluis: 
"  I  am  of  opinion  that  where,  citlier  by 
any  rule  of  law  or  by  the  usiigc  of  any 
trade,  the  terms  of  a  contract  aiviuiie  a 
particular  meaning,  the  contract  must  be 
taken  to  express  that  meaning  as  niucli  as 
though  it  had  been  set  forth  in  cxlcnso; 
and  I  hold  that  this  obtains  as  imkh  for 
the  purpose  of  satisfying  the  statute  as 
for  that  of  establishing  the  coiitraid  iiidi'- 
])endently  of  the  statute.  That  this  is  so, 
when  the  terms  of  a  contract  aeiiuire  a 
particular  effect  other  than  tlicy  would 
primd  facie  import,  by  virtue  of  some  rule 
of  law,  is,  I  think,  too  clear  to  admit  of 
doubt  or  to  require  argument ;  nor,  as  it 
appears  to  me,  is  the  ditliculty  greater 
where  the  particular  signification  is  shown 
to  attach  to  the  tenns  of  the  contract  by 
the  usage  of  trade.  For  it  must  lie  re- 
membered that  the  principle  ujinn  which 
evidence  of  .such  usage  is  admitted  is  that, 
as  between  those  who  are  parties  to  the 
contract,  and  conversant  witli  the  terms 
used,  those  terms  as  clearly  inijily  the 
particular  meaning  as  though  it  Iiail  been 
set  forth  in  extenso;  and  if  this  be  so  for 
the  purpose  of  showing  the  effect  and  ex- 
tent of  the  liability,  it  must  be  e(]nally  sn 
for  the  purpose  of  satisfying  the  statute, 


PART  VIII.] 


AGENCY. 


627 


Agents  selling  goods,  in  which  they  themselves  have  an  inter- 

283 ;  Scbiualtz  v.  Avery,  16  Q.  B.  665  ; 
Hutton  V.  Warren,  1  M.  &  W.  466  ;  Carr 
V.  JiiL'kson,  7  Ex.  382;  Thompson  v.  Dav- 
enport, 9  B.  &  C.  78  ;  Bywater  v.  Kich- 
anlson,  1  A.  &  K.  508  ;  Brown  v.  Byrne, 
3  E.  &  B.  703;  Tlie  Reesi.le,  2  Siiinn.  669; 
Winthroi)!).  UniiMi  liis.  Co.,  2  Wiish.  C.  C. 
7;  Oonlon  v.  Little,  8  S.  &  K.  633;  Snow- 
den  t;.  Warden,  3  Rawle,  101;  Thompson 
V.  Hamilton,  12  Tick.  42,');  Astor  r.  Union 
Ins.  Co.,  7  Cow.  202  ;  Cooper  v.  Kane,  19 
Wend.  386;  Shaw  v.  Mitchell,  2  Mete.  66; 
Leach  V.  Beardslee,  22  Conn.  404;  Lorin^i; 
V.  Gurney,  5  Pick.  15.  We  find  the  view 
we  liave  expressed  above  ns  to  the  comjie- 
tency  of  parties  to  give  evidence  of  a  usage 
to  ox])Iam  a  contract,  as  they  may  give 
evidence  of  the  meaning  of  technical  lan- 
guage used  in  a  written  contract,  is  also 
taken  by  Story,  J.,  in  The  Reesidc,  2 
Sumn.  567,  669,  where  he  says:  "The 
true  an<l  ajipropriate  office  of  a  usage  or 
cu.stoni  isi  to  interpret  the  otherwi.se  in- 
determinate intentions  of  parties,  and  to 
ascertain  the  nature  and  extent  of  their 
contracts,  arising  not  from  express  stipu- 
lations, but  from  mere  implications  and 
pri'suniptions,  and  acts  of  a  doubtful  or 
e(iuivocal  diameter.  It  may  also  be  ad- 
•  niitted  to  ascertain  the  true  meaning  of  a 
particular  word  or  of  particular  words  in  a 
given  instrument,  when  the  word  or  words 
have  various  senses,  some  common,  .some 
(luulificd,  and  some  technical,  according 
to  the  subject-matter  to  which  they  are 
applied,  liut  I  apprehend  that  it  can 
never  be  proper  to  resort  to  any  usajfe  or 
custom  to  control  or  vary  the  positive 
stipulations  in  a  written  contract,  and, 
a  Jortiori,  not  in  order  to  contradict 
them.  An  express  contract  of  the  par- 
ties is  always  admissible  to  supersede  or 
vary  or  control  a  usage  or  custom  ;  for  the 
latter  may  always  be  waived  at  the  will 
of  the  i)arties.  But  a  written  and  express 
contract  cannot  be  controlled  or  varied  or 
contradicted  by  a  usage  or  custom  ;  for 
that  would  not  only  be  to  admit  parol 
evidence  to  control,  vary,  or  contradict 
written  contracts,  but  it  would  be  to  al- 
low mere  presumptions  anil  implications, 
properly  arising  in  the  absence  of  any 
positive  expressions  of  intention,  to  con- 
trol, varj',  or  contradict  the  most  formal 
and  deliljerate  written  declarations  of  the 
parties."  It  was  accordingly  held  in  that 
case  that  the  condition  in  a  bill  of  lading 
that  goods  should  be  delivered  in  good 
order  and  condition,  the  danger  of  the 
seas  only  excepted,  could  not  be  controlled 
by  a  usage  exempting  the  ves.sel  from  a  lia- 
bility for  damage  to  the  goods  not  caused 
by  the  dangers  of  the  seas.  The  language 
uttered  by  Story,  J.,  as  above,  over  fifty 


and  to  hold  otherwise  would  lead  to  con- 
sequences altogether  inconvenient  and  ab- 
sunt ;  for  it  would  follow  that  in  no  case 
in  which  a  written  contract  was  re({uired 
by  the  statute  of  frauds  could  evidence  of 
the  usage  of  trade  be  admitted,  —  a  doc- 
trine never  dreamed  of  in  the  numerous 
cases  in  which  such  evidence  has  been  ad- 
mitted.    Now,  according  to  the  authori- 
ties cited  on  the  argument,  the  legal  etl'ect 
of  a  contract  entered  into  by  a  person  as 
agent  for  an  undisclosed  principal  is  to 
bind  the  agent  as  principal,  if  the  party 
with  whom  the  contract  is  made  thinks 
proper  to  sue  him  ;  besides  which,  in  this 
case,  independently  of  any  rule  of   law, 
the  like  effect  is  gi'  en  to  the  contract  by 
the  usage  of  the  particular  trade.     The 
meiuorantlum  must  therefore  be  read  as 
though  the  defendants,  while  signing  as 
agents  for  an  unknown  princi{)al,  had  in 
terms  declared  that  in  the  event  of  the 
vendor  not  discovering  the  iiriiiclpp.'s,  or 
preferring  to  hold  them  liable,  they  would 
be  liable  as  principals,  for  this  liability  is 
tacitly  included  in  the  terms  used  ;  and  I 
think,  as  I  have  before  explained,  that  if 
thi.s  holds  (as  it  undoubtedly  does)  for  the 
purpose  of  ascertaining  the  liability  of  the 
defendants  independently  of  the  statute,  it 
e(iually  holds  for  the  purpose  of  satisfying 
the  statute.     It  may  further  be  observed, 
that  unless  the  foregoing  conclusion  were 
sound,  in  no  case  could  an  unnamed  prin- 
cii>al  be  sued  on   such  a  contract,  or  a 
party  purporting  to  sign  as  agent,  but  be- 
ing in   fact   the   principal  ;   nor,   on   the 
other  hand,  could  an  unnamed  principal 
take  advantage  of  such  a  contract ;  yet 
the  contrary  is  well   established   by  au- 
thority and   precedent."     Dale   v.   Hum- 
phrey, E.  B.  &  E.  at  p.  1021.     It  is  note- 
worthy that  although  in  this  case  three  of 
the  seven  judges  held  contra,  mainly  rest- 
ing on  the  statute  of  frauds,  y(;t  in  Fleet 
V.  Morton,  L.  H.  7  Q.  B.  126,  where  Dale 
».  Humphrey  was  followed  and  approved, 
no  question  was  even  raised  on  any  ground 
as  to  the  correctness  of  the  decision,  by 
either  court  or  counsel.     See  Iliggins  v. 
Senior,  8  .M.  &  W.  834  ;  Jones  v.   Little- 
dale,  6  A.  &  E.  48(5 ;  Magee  v.  Atkinson, 
2  M.  &  W.  440;  Sowerby  ».  Butcher,  2  C. 
&M.  371;  Wilson  v.  Hart,  7  Taunt.  295; 
Spittle  V.  Lavender,  2  Bro.  &  B.  452;  Gar- 
rett V.  Handley,  4  B.  &  C.  664 ;  Bateman 
t. Phillips,  15  Ea.st,  272;  Seaberv.  Hawke.s, 
5  M.  &  P.  649  ;  Patei-son  v.  Gandasequi, 
15  East,  62;  Le  Fevre  i-.  Lloyd,  5  Taunt. 
749;  Hill  v.  Perrott,  3  Taunt.  274;  Sharp 
V.  Emmett,  6  Whart.  288  ;  Calder  v.  Do- 
bell,  L.  R.  6  C.  P.  486;  Couturier  v.  Has- 
tie,  8  Ex.  40,  56  ;  Moore  v.  Campbell,  10 
£Z'  323;  Pennell  v.  Alexander,  8  £.  &  B. 


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628 


COMMENTABIES  ON   SALES. 


[book  II. 


est,  and  selling  in  their  own  names,  but  for  their  principals,  can 
n&intain  an  action  in  their  own  names  for  the  pricc.^ 


years  ago  will  cover  the  various  well-de- 
cided cases  down  to  the  present  time,  in- 
cluding the  many  nicely  decided  English 
cases  on  the  points  involved,  to  be  met 
with  in  the  Litest  reports.  See  also  Hare 
V.  The  Mutual  Siifetv  Ins.  Co.,  1  Sandf. 
137,  150,  where  Sanclford,  J.,  takes,  as  we 
have  done,  the  rule  as  to  tiie  allowance  of 
evidence  to  explain  technical  language  in 
a  written  contract  as  illustrative  of  the 
right  to  give  evidence  of  usage  to  explain 
the  meaning  of  the  contract.  At  ibid. 
p.  152,  he  says  :  "  In  fine,  we  believe  that 
the  rule  of  construction  applicable  to  poli- 
cies of  insurance  does  not  diiFer  from  that 
applied  to  other  mercantile  instruments. 
Its  sense  and  meaning  are  to  be  ascer- 
tained from  the  terms  of  the  policy,  taken 
in  their  plain  and  ordinary  signitication, 
unless  such  terms  have  by  the  known 
usage  of  trade  in  respect  to  the  subject- 
matter  acciuired  a  meaning  distinct  from 
the  popular  sense  of  the  same  terms,  or 
unless  the  instrument  itself,  taken  to- 
gether, sh  1W3  that  they  were  understood 
in  some  peculiar  manner.  And  that  while 
we  may  not  enlarge  or  restrict  the  clear 
and  explicit  language  of  the  contract  by. 
proof  of  a  custom  or  usage,  yet  in  the  ap- 
plication of  the  contract  to  its  subject- 
matter  in  bringing  it  to  bear  upon  ar<y 
particular  object,  the  customs  and  usages 
of  trade  are  admissible  to  ascertain  wliat 
subjects  were  within  and  what  were  ex- 
cluded from  its  operation.  Such  evidence 
is  proper,  on  the  same  principle  that  proof 
of  the  meaning  of  technical  words  and 
words  of  science  and  the  arts  is  permitted 
in  arrivinf,  at  the  intention  of  the  parties 
in  the  construction  of  contracts."  Proof 
of  a  general  usage,  the  elFect  of  which  is 
to  control  rules  of  law,  is  inadmissible. 
Edie  V.  East  India  Co.,  2  Burr.  1216; 
Frith  V.  B  irksr,  2  Johns.  327  ;  Horner  v. 
Dow,  10  Mass.  26;  Il;mkin  v.  The  Ameri- 
can Ins.  Co.,  1  Hall  (N.  Y.),  619;  Turner 
V.  Burrows,  5  Wend.  541 ;  8  Wend.  144. 
And  see  Wadsworth  i'.  The  Paeitie  Ins. 
Co.,  4  Wend.  33;  Uow  o.  Whetten,  8  Wend. 
160 ;  Macy  v.  The  Whaling  Ins.  Co.,  9 
Mete.  354 ;  Coit  i;.  The  Commercial  Ins. 
Co.,  7  .lohns.  385;  Astor  v.  The  Union  Ins. 
Co.,  6  Cow.  202.  That  usages  of  banks 
and  other  public  instit\itions,  and  some- 
times of  individuals,  may  legally  be  proved 
is  well  settled.  Morgan  v.  Kichards,  1 
Browne  (Pa.),  171.  And  where  such  usa- 
ges are  known  to  the  parties,  business  is 
transacted  with  reference  to  them,  and 
they  enter  into  and  form  a  part  of  the 
contract.  All  persons  accustomed  to  trans- 
act business  at  banks  and  other  public 


offices  are  presumed  to  know  and  a.ssent 
to  their  usages.  But  the  usages  of  indi. 
viduals  cannot  atl'ect  their  contiMcts,  un. 
less  it  appear  that  the  usage  was  known 
to  the  persons  with  whom  they  eontimtcil. 
Tiie  usHge  is  an  independent  fuet,  wliiib, 
if  proved,  cannot  avail  the  party  rulyiiix 
on  it,  unless  he  brings  a  kiiowletlgc  of  it 
home  to  the  other  contracting  pnrtv. 
Loriiig  V.  Gurney),  6  Pick.   15. 

1  McCullongh  V.  Koots,  19  I  low.  349. 
See  Bott  v.  ifcCoy,  20  Ala.  678  ;  Wal- 
cott  V.  Keith,  2  Foster  (N.  H.),  lim.  An 
agent  who  insures  for  anotlier  with  his 
authority  may  sue  for  the  sum  nssmvd  in 
his  own  name.  The  Provincial  his.  Co. 
V.  Leduc,  L.  li.  6  P.  C.  224. 

l„,  an  agent  of  B.,  insured  some  gnods 
belonging  to  B.,  that  were  being  sent  by 
ship  from  Montreal  to  St.  John's,  New- 
foundland.  The  in.surance  com|)aiiy's  agent 
issued  to  L.  a  "  certificate  of  insurance," 
which  stated  that  L.  had  insured  the 
goods.  It  was  the  custom  of  the  com- 
pany to  issue  subsequently  a  policy  stat- 
ing that  "A.  B.,  as  well  in  his  own  name 
as  in  the  name  of  every  ])ersoii  to  whom 
the  same  shall  appertain,"  had  niaile  in- 
surance, and  caused  to  be  insured,  ic. 
On  a  loss  occurring,  B.  brought  an  action 
against  the  insurance  com|)any  in  the 
Superior  Court  of  Lower  Canada,  when 
juiigment  was  given  for  the  defendants, 
which  was  aflirmed  by  the  Court  of 
Queen's  Bench  for  Lower  Canada.  On 
appeal  to  the  Privy  Council,  the  Judi- 
cial Committee  held,  that,  by  the  law 
of  England,  speaking  generally,  as  well 
as  by  the  law  of  Lower  Canada,  an  undis- 
closed principal  may  sue  and  be  sued 
upon  mercantile  contracts  made  by  his 
agent  in  his  own  name,  subject  to  any 
defences  or  t  .uities  which,  without  notice, 
may  exist  agai.nst  the  defendant.  On  the 
application  of  that  principle  to  this  case, 
they  say:  "There  seems  no  snllicient 
ground  for  making  a  distinction  in  the 
case  of  marine  policies  of  insurance,  espe- 
cially when,  having  regard  to  the  ordinary 
course  of  business,  it  must  be  known  that 
they  are  commonly  made  i>y  agents.  If, 
indeed,  any  particular  interest  were  de- 
scribed in  the  policy  to  belong  to  the 
person  named  in  it,  an  objection  inight 
arise  founded  on  the  rule  that  written 
contracts  cannot  be  contradicted  by  parol 
evidence.  This  objection,  however,  does 
not  occur  in  this  case,  where  the  insurance 
is  general  on  the  goods,  and  no  interest  is 
expressly  described.  But  if  this  were  not 
the  law  in  the  case  of  a  policy  which  did 
not  contain  the  usual  clause  '  as  well  in 


PABT  VIII.] 


AGENCY. 


629 


The  defendants,  acting  as  agents  for  one  L.,  chartered  a  ship 
for  the  conveyance  of  a  cargo  of  currants  from  the  Ionian  Islands. 
The  charter-party  was  expressed  to  be  made,  and  was  signed,  by 
the  defendants,  as  "  agents  to  merchants,"  the  name  of  the  prin- 
cipal not  being  disclosed.  It  was  proved  that  the  defendants,  in 
making  the  charter-party,  had  acted  as  agents  for  one  Lyons,  with 
due  authority  to  do  so ;  but  evidence  was  tendered  on  the  part  of 
the  plaintiffs,  and  admitted,  of  a  trade  usage,  that  if  the  princi- 
pal's name  was  not  disclosed  within  a  reasonable  time  after  the 
signing  of  the  charter-party,  in  such  case  the  broker  would  bo 
|)crsonally  liable.  The  jury  found  that  such  a  custom  existed, 
and  that  the  name  of  the  principal  had  not,  in  this  case,  been  dis- 
closed within  a  reasonable  time.  The  verdict  was  entered  for  the 
plaintiffs,  with  leave  reserved  to  defendants  to  move  to  enter  the 
verdict  for  themselves,  on  the  ground  that  they  had  contracted  as 
agents,  and  that  parol  evidence  was  inadmissible.  It  was  con- 
ceded that  on  authority,'  and  according  to  the  general  understand- 
ing in  mercantile  matters  of  the  effect  of  a  contract  so  framed, 
apart  from  custom,  the  defendants  were  not  responsible.  The 
court  held,  on  the  authority  of  those  cases  and  others,^  that  evi- 
dence of  the  custom  was  admissible.^ 


his  own  name,  &c.,'  it  is  not  denied  that 
it  would  be  so  in  the  case  of  one  which 
iloes ;  and  their  lordships  think  that  in 
this  case  the  certiticate  ought  to  be  con- 
stnicd  with  reference  to  the  proved  usage 
of  the  respondents  to  treat  such  a  docu- 
ment as  provisional,  entitling  the  assured 
to  a  policy  in  their  common  form,  which 
would  contain  the  above  clause.  This 
common  form  of  the  respondents'  policy 
clearly  shows  that  in  their  contemplation 
the  person  named  in  the  certiticate  might 
be  contracting  as  an  agent  for  another  ; 
and,  therefore,  as  against  them,  the  con- 
tract ought  to  be  interpreted  as  if  the  above 
clause  vere  contained  in  it."  And  the 
appeal  from  the  judgment  of  the  Canadian 
courts  was  accordingly  sustained,  and  their 
judgment  reversed. '  Browning  v.  The 
Provincial  Insurance  Co,  of  Canada,  L.  K. 
5  P.  (.".  263.  See  Sims  v.  Bond,  5  B.  & 
Ad.  389  ;  Higgins  v.  Senior,  8  M.  & 
W.  834;  Humble  v.  Hunter,  12  Q.  B. 
310;  Kamazotti  v.  Bowring,  7  C  B.  n.  s. 
851 ;  De  Vignier  v.  Swanson,  1  B.  &  P. 
S96,  n. :  Watson  v.  Swann,  11  C.  B.  N.  s. 
J56;  Calder  v.  Dobell,  L.  R.  6  C.  P. 
♦86. 

»  Fleet  V.  Mnrton,  L.  B.  7  Q.  B.  126 ; 
Faiilie  v.  Fenton,  L.  R.  5  Ex.  169. 

"  Humphrey  v.  Dale,  7  E.  &  B.  266 ; 
EB.  &  E.  1004  ;  Deslandes  v.  Gregory, 
2E.  &R.  602,  607. 

'  The  limit  on  the  admissibility  of  such 
^OL.  I.  34 


evidence  is  thus  put  by  Brett,  J. :  "It  is 
not  easy  to  define  exactly  limits  within 
which  evidence  of  mercantile  custom  is 
admissible  to  vary  the  meaning  of  a  writ- 
ten contract.  It  is  clear  that  evidence  is 
not  admissible  to  contradict  the  writing  ; 
but  in  one  sense  the  contract  must  always 
be  varied  by  the  admission  of  the  evidence 
9f  custom,  inasmuch  as  the  effects  of  the 
contract  would  not  be  the  same  without 
the  parol  evidence,  or  else  the  parol  evi- 
dence would  itself  be  unnecessary.  The 
evidence  of  cu8tom  that  is  ina<lmis8ible 
must  be,  it  appears  to  me,  evidence  of 
something  inconsistent  and  irreconcilable 
with  the  written  contract.  The  evidence 
here  proposed  to  be  given  can  only  be  in- 
admissible if  the  import  of  the  words  'as 
agents'  is  such  as  to  exclude  a  collateral 
provision  for  liability  as  principals  in  a 
certain  contingency.  It  is  not  attempted 
to  show  that  the  defendant's  principals 
would  not,  primd  facie,  and,  in  most 
eases,  be  liable  as  the  principals,  and  not 
the  defendants ;  but  that,  in  a  certain 
particular  contingency,  the  defendants 
might  themselves  be  personally  liable. 
This  does  not  seem  to  me  so  inconsistent 
and  irreconcilable  with  the  contract  as 
to  amount  to  a  contradiction  or  variation 
beyond  what  is  admissible."  Hutchinson 
V.  Tatham,  L.  K.  8  C.  P.  482.  See  ante, 
note  2  to  p.  526. 

In  Deslandes  v.  Gregory,  2  E.  &  £.  602, 


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680 


COMMENTARIES  ON  SALES. 


[book  II. 


The  case  of  Hough  v.  Manzanos  *  is,  outside  of  the  ques- 
tion of  usage  or  custom,  a  case  very  similar  to  Ilutcliiiisun  v. 
Tatham."    In  Hough  v.  Manzanos,  a  charter-party  was  entered 
into  between  plaintiffs,  shifj-ownors,  and  defendants,  "  as  agents 
for  charterers."     It  was  signed  by  the  defendants  without  any 
qualification,  but  contained  a  clause  that  the  ship  was  to  load 
"  from  the  agents  of  the  said  freighters,"  and  a  cesser  clause  that, 
the  charter  being  entered  into  on  behalf  of  others,  all  llabilit}'  of 
charterers  should  cease  on  completion  of  loading  and  payment 
of  advance.     In  an  action  for  breach  of  the  charter-party,  tlie  de- 
fendants, by  their  sttitement  of  defence,  denied  their  personal  lia- 
bility.    It  was  held  by  Pollock,  B.,  that  the  defendants  were  liable 
on  the  charter-party.     Although  Pollock,  B.,  so  decides,  he  is,  ob- 
viously, not  satisfied  with  his  own  judgment.     He  had  himHcIt, 
previously,  in  Gadd  v.  Houghton,^  held  that  the  defendants  were 
not  Haule  where  they  purported  to  contract  "on  account  of" 
another ;   but  felt  hims'^lf  bound  by  the  decision  in  Paice  r. 
Walker,*  on  the  ground  that  that  case  had  held,  when  the  defend- 
ar\ts  used  the  wo'-ds  "  as  agents  for  "  another,  they  were  liable. 
He  failed  to  appreciate  the  distinction  between  the  two  terms,  but, 
Tiotwithstanding,  felt  himself  bound  by  what  he  conceived  was  the 
holding  in  Paice  v.  Walker.     We  have  already  pointed  out,   Mt 
wo  think  is  clear,  that  the  decision  in  Paice  v.  Walker,  as 
guishing  it  from  Gadd  v.  Houghton,^  can  only  be  sustain 
cause,  in  the  words  of  James,  L.  J.,  in  Gadd  v.  Houghton  ; "  "The 


a  charter-party,  made  in  London,  lietween 
plaintiff,  ship-owner,  and  defendants, 
"as  agents  to  Samuel  Ferguson,  of  Ana- 
maboe,  merchants  and  charterers,"  was 
signed  "for  D.  [plaintiff]  owner,  H.  C. 
as  agent.  For  Samuel  Ferguson,  Esq., 
of  Anamaboe,  G.  Broth»rs  rdefendantsj 
as  agents."  The  charter-party  was  partly 
written  and  partly  printed,  the  words 
"  merchants  "  and  "  charterers  "  being 
printed,  and  in  the  plural  throughout  it. 
Defendants,  merchants  in  London,  acted 
in  England  as  agents  for  Ferguson,  a 
native  of  Africa,  and  residing  at  Ana- 
maboe in  that  country.  By  the  charter- 
party,  plaintiffs  ship  was  chartered  for  a 
voyage  from  London  to  Africa  and  back, 
and  freight  was  made  payable  on  delivery 
of  the  return  cargo.  It  was  held  by  the 
court  of  Queen's  Bench,  affirmed  by  the 
Ei:  chequer  Ciiamber,  that  the  defendants 
»ere  not  personally  liable,  as  principals, 
on  the  charter  party.  Williams,  J.,  in 
delivering  the  judgment,  said  :  "  The  form 
of  the  chai-ter-party,  and  the  mode  of 
signature,  taken  together,  are  decisive  to 
show  that  the  defendants  did  not  bind 
themselves  by  the  contract  as  princi- 
pals.   They  sign  '  For  Samuel  Ferguson, 


Esq.,  of  Anamaboe,  G /egory  Brothers,  as 
agents.'  It  would  require  extreiiii'ly  plain 
words  in  the  body  of  the  contiiK't  to  con- 
trol the  effect  of  that  mode  of  signature, 
and  no  such  words  are  to  be  foiiiul  thori', 
the  contract  purporting  to  bt'  made  In 
'  Messrs.  Gregory  Brothers,  as  .■i},'eiits  'o 
Samuel  Ferguson,  of  Anamaboe,  mer- 
chants and  charten^rs.'  The  only  nrgii- 
ment  that  can  be  relied  upon  by  tlie  appel- 
lant is  that  the  words  '  merchfiiits '  and 
'  charterers '  are  in  the  plur.il ;  but  this 
evidently  happened  by  mistuku,  and  tho 
words  occur,  moreover,  in  the  jjrintcd 
part  of  the  charter-partv."  Deslandcs  t'. 
Gregory,  2  E.  &  E.  610.  Sec  Tanner  v. 
Christian,  4  E.  &  B.  591  j  Leonaid  ». 
Robinson,  5  E.  &  B.  125 ;  Parkor  r. 
Winlow,  7  E.  &  B.  942  ;  Green  v.  Kop- 
ke,  18  C.  B.  549  ;  Leadbitter  t'.  F'^rrow,  j 
6  M.  &  S.  345,  349,  per  Lord  Ellenbor- 
ough,  on  the  same  question. 

1  4  Ex.  Div.  104. 

'*  L.  R.  8  C.  P.  482. 

8  1  Ex.  Div.  357. 

*  L.  R.  5  Ex.  173. 
6  1  Ex.  Div.  357. 

•  1  Ex.  Div.  at  p.  859. 


PART   VIII." 

ratio  decid 

fontract  at 

''gents  '  mi 

tho  fact  tha 

a  statemen 

another  per 

zanos  ^  restt 

binding  autl 

zanos  —  ant 

latter  case  U 

that  though 

peteiit  for  hii 

cipal  to  the  ( 

of  constructi 

ciicumstance 

In  Christof 

tiff  and  dcfcn 

all  convonien 

there  load  the 

the  ship  shoul 

assigns,  on  pj 

''cing  conclude 

abroad,  all  Ua 

shipped  the  sj 

^-Jiich  the  liabi 

the  cargo  was 

tmpted  only  fr 

a»d  that  he  rer 

ultimately  load( 

case  of  Hough  j 

wasrhedefenda 

at  a  certain  tin 

ant  chartered  tl 

clause  provided 

completion  of  lo 

cision  in  Christo 

sound  constructi 

,  ^'^^  the  differen 

as  simply  follow 

entirely  diflPeren 

good  law. 

»  4  Ex. 
»L.  R. 
»L.  R 
*  4  Ex.  : 


PART   VIII.] 


AGENCY. 


631 


ratio  decidendi  in  Paice  v.  Walker  was  that,  having  regard  to  the 
contract  and  all  the  circumstances  of  the  case,  the  words  *a8 
'igcnts '  must  be  considered  as  merely  describing  or  intimating 
the  fact  that  the  defendants  were  agents,  and  did  not  amount  to 
a  statement  that  they  were  making  a  bargain  *on  account  of 
another  person."  We  think,  therefore,  as  far  as  Hough  v.  Man- 
zaiins  *  rests  upon  Pollock,  B.'s,  view  of  Paice  v.  Walker  ^  being  a 
binding  authority  upon  him  to  hold  as  he  did  in  Hough  v.  Man- 
zanos  —  and  ho  expressly  puts  it  upon  that  ground  —  that  this 
latter  case  is  of  very  little  value  as  an  authority.  It  is  quite  clear 
that  though  one  is  a  broker  or  agent  for  another,  it  is  quite  com- 
petent for  him  so  to  frame  a  contract  as  to  bind  himself  as  a  prin- 
cipal to  the  contract.  Whether  he  does  so  or  not  is  a  (jucstion 
of  construction  of  the  contract  in  the  light  of  the  surrounding 
circumstances. 

In  ChristoflFersen  v.  Hansen, ^  by  a  charter-party  between  plain- 
tiff and  defendant,  it  was  agreed  that  plaintiff's  ship  should,  with 
all  convenient  speed,  proceed  to  S.,  and  that   defendant  should 
there  load  the  ship  in  regular  turn  with  a  full  cargo  of  coals,  and 
the  ship  should  proceed  with  it  to  K.,  and  deliver  lu  freighter  or 
assigns,  on  payment  of  certain  freight ;  "  and  that,  the  charter 
being  concluded  by  defendant  on  behalf  of  another  party  resident 
abroad,  all  liability  of  difendant  nhould  cease  as  soon  as  he  had 
shipped  the  said  cargo."     Under  this  form  of  charter-party,  in 
which  the  liability  of  the  defendant  down  to  the  time  of  shipping 
the  cargo  was  implied,  it  was  held  that  the  defendant  was  ex- 
empted only  from  liability  accruing  after  the  loading  of  the  cargo, 
and  that  he  remained  liable  for  delay  in  loading,  although  lie  had 
ultimately  loaded  a  full  cargo.     This  case  seems  to  differ  from  the 
case  of  Hough  v.  Manzanos,*  in  that,  in  this  case,  the  "  charterer  " 
was  the  defendant,  whose  liability  on  the  charter-party  was  to  cease 
at  a  certain  time  ;  whereas,  in  Hough  v.  Manzanos,^  the  defend- 
ant chartered  the  ship  "  as  agtnts  for  charterers,"  and  the  cesser 
clause  provided  that  the  "  liability  of  charterers  "  should  cease  on 
completion  of  loading  and  payment  of  advance.     So  that  the  de- 
cision in  Christoffersen  v.  Hansen  ^  might  well  be  sustained  as  a 
sound  construction  of  the  contract,  and  Hough  v.  Manzanos,"  un- 
der the  different  language  of  the  charter-party,  being  decided, 
as  simply  following  the  decision  in  Paice  v.  Walker,^  under  the 
entirely  different  facts  and  circumstances  of  that  case,  be  not 
good  law. 


»  4  Ex.  Div.  104. 
»  L.  R.  5  Ex.  173. 

•  L.  R.  7  Q.  B.  509. 

*  4  Ex.  Div.  104. 


«  4  Ex.  Div.  104. 
8  L.  R.  7  Q.  B.  509. 
1  4  Ex.  Div.  104. 
8  L.  R.  5  Ex.  173. 


M 


i      i 


!■■    f 


&]'"'. 


^a ; 


in 


632 


COMMENTARIES  ON  SALES. 


[book  II. 


la  all  these  cases,  relic  nee  is  placed  on  the  rule  laid  down  in 
Suj  ith's  Leading  Cases  ;  *  thus  :  "  It  may  be  laid  down  as  a  gen- 
eral rule  that  where  a  person  signs  a  contract  in  his  own  name 
without  qualification,  he  is  primd  facie  to  be  deemed  to  be  a  per- 
son contracting  personally,  and  in  order  to  prevent  this  liability 
from  attaching,  it  must  be  apparent  from  the  other  portions  of  the 
document,  that  ho  did  not  intend  to  bind  himself  as  a  principal."  - 

We  are  of  opinion  that  this  much-quoted  rule  is,  liice  many 
other  general  rules  for  construction  of  contracts,  of  very  little 
value.  We  quote  the  words  from  Smith's  Leading  Cases,  preced- 
ing his  statement  of  this  "  genei*al  rule,"  as  more  correctly  em- 
bodying our  views.  He  says  :  "  In  all  these  cases,  the  question 
whether  the  person  actually  signing  the  contract  is  to  be  deemed 
to  be  contracting  personally,  or  as  agent  only,  depends  upon  the 
intention  of  the  parties  as  discoverable  from  the  contract  itself."  ^ 
And,  we  submit,  this  question  is  to  be  settled  by  the  language  in 
the  entire  contract  —  body  and  signature.  Mellish,  L.  J.,  in  deal- 
ing with  the  rule  which  we  have  quoted,  says  :  "  I  can  see  no  dif- 
ference between  a  man  writing  'I,  A.  B,,  as  agent  for  C.  D., 
have  sold  to  you,'  and  signing  '  A.  B.,'  and  his  writing '  I  have 
sold  to  you,'  and  signing  '  A.  B.,  for  C.  D.,  the  seller.'  When  the 
slgnaturo  comes  at  the  end,  you  apply  it  to  everything  which  oc- 
curs throughout  the  contract.  If  all  that  appears  is  that  the  agent 
has  been  making  a  contract  on  behalf  of  some  other  person,  it 
seems  to  me  to  follow  of  necessity  that  that  other  person  is  the 
person  liable."  *  And,  notwithstanding  the  stress  Smith  laid  on 
the  signature,  —  which  part  of  his  rule  is  usually  quoted  without 
the  language  preceding  it;  quoted  by  us,  —  he  says :  "  The  fact 
that  the  signature  is  expressed  to  be  made  '  as  agent,'  is  strong  to 
show  that  the  person  signing  does  not  mean  to  bind  himself  per- 


1  Vol.  ii.  386,  7th  ed. 

*  This,  in  effect,  is  the  statement  of 
Lord  Ellenborou^h,  in  Leadbitter  v.  Far- 
row 5  H.  &  S.  345,  349,  where  he  says  : 
"In  Ik,  not  an  universal  rule  that  a  man 
who  puts  his  name  to  a  bill  of  exchange 
thereby  makes  himself  personally  liablo, 
unless  he  states  upon  the  face  of  the  bill 
that  he  subscribes  it  for  another,  or  by 
procuration  of  another,  which  are  words  of 
exclusion  ?  Uiiloss  h<*  says  plainly,  '  I  am 
th-^  mere  scribe,'  he  becomes  liable."  lu 
this  case,  the  agent  of  a  bank  drew  a  bill  in 
his  own  name,  with  nothing  in  the  body  of 
the  bill,  or  in  connection  with  his  signa- 
ture, to  qualify  his  liability  as  drawer,  and, 
on  the  dishonor  of  the  bill,  he  was  necessa- 
rily held  liable  as  drawer.  See  Thomas  v. 
Bishop,  Str.  9.^5  ;  Appletou  v.  Binks,  6 
East,  143 ;  Le  Fevre  v.  Loyd,  5  T.iuut. 


749.  On  the  zz\ae  principle  as  govprned 
these  cases,  in  Kaimes  v.  Knightly,  Skinn. 
64,  upon  a  policy  of  assurance  fi'oni  Arch- 
angel to  Leghorn,  wliere  the  delViKiaiit 
sougnt  to  sho«r  by  parol,  that  the  risk 
was  to  commence  only  from  the  Downs, 
it  was  said  by  Pemberton,  C.  J.,  "Tlwt 
policies  were  sacred  things,  and  that  a 
merchant  should  no  more  be  allnwwl  to 
go  from  what  he  had  subscribed  in  tlicm, 
than  he  who  subscribes  a  bill  of  extlmnse, 
p.iyable  at  such  a  day,  shall  be  allowi'd  to 
go  from  it,  and  say  it  was  agrreil  to  lie 
upon  a  condition,  etc.,  for  though  neither 
of  them  are  specialties,  yet  thuy  art  of 
great  credit,  and  much  for  the  snpiwrt, 
conveniency,  and  advantage  of  trp.ile." 

•  2  Sra.  Lead.  Cas.  400  ;  8th  cu. 

«  Gadd  V.  Houghton,  1  Ex.  Div.  380. 


PABT  VIII.] 


AGENCY. 


588 


sonally,  if  the  terms  of  the  contract  itself  do  not  show  a  contrary 
intention.^^  ^  And  the  converse  of  this  is  equally  true,  that  tiie 
fact  that  the  signature  is  not  expressed  to  be  made  "  as  agent "  is 
strong  to  show  that  the  person  signing  does  mean  to  bind  Iiimself 
personally,  if  the  terms  of  the  contract  itself  do  not  show  a  coHrary 
intention.  And  this,  in  effect,  is  exactly  what  Smith  states  la  the 
rule  we  have  previously  quoted :  but,  in  some  of  the  cases,  while 
great  stress  is  laid  upon  the  signature  being  in  the  party's  own 
name,  no  force  whatever  is  allowed  the  rest  of  the  rule,  which  over- 
comes the  effect  of  the  signature  when  it  is  "  apparent  frcm  the 
other  portions  of  the  document  that  he  did  not  intend  io  bind 
himself  as  principal." 

After  all,  vv''ether  the  signature  be  nominally  that  of  agent  or 
not,  the  question  whether  the  person  actually  signing  the  contract 
is  to  be  deemed  to  be  contracting  personally  or  not,  "  depends 
upon  the  intention  of  the  parties  as  discc .  erable  from  the  contract 
itself."  As  Bigclow,  C.  J.,  on  another  question  of  construction  of 
a  contract,  so  well  says :  "  It  is  a  questioii  of  intent,  arising  on 
the  interpretation  of  the  entire  contract  in  each  case."^ 

Lennard  v.  Robineon  ^  is  the  case  which  was  relied  on  in  Paice 
V.  Walker,*  for  the  holding  in  the  Court  of  Exchequer,  that  the 
words  in  the  contract,  "Sold  P.,  Lon  Ion,  .  .  .  asagentsforJ.S.^ 
Co.  of  Danzig,"  did  not  relieve  the  defendants  from  liability  as 
principals  to  the  contract ;  these  words  being  held  to  be  words  of 
description  only.  We  have  already  referred  to  the  fact  that,  out- 
side of  this  holding,  the  case  of  Paico  v.  Walker  may  be  sustained 
on  tlie  grounds  stated  in  Gadd  v.  Houghton.^  It  is  clear  if  it  is  not 
sustainable  on  that  ground,  it  is  not  so  on  the  express  ground  on 
which  it  was  decided.  But,  on  this  ground,  it  is  clearly  opposed 
by  wh.it  we  think  is  the  much  better  holding  in  Gadd  v.  Hough- 
ton. We  have  already  intimated  our  opinion  of  the  view  of 
Pollock,  B.,  in  Hough  v.  Manzanos,^  of  the  ratio  decidendi  of 
Paice  V.  Walker,"  and  that,  in  the  light  of  the  decision  of  Gadd  v. 
Houghton,  the  holding  in  Hough  r.  Manzanos  cannot  be  sustained. 

The  case  of  Lennard  v.  Robinson,"  on  which  Pace  v.  Wuu  r 
was  ostensibly  decided,  is  very  similar  to  Hough  y.  Manzovcs.^ 
The  latter  case,  though,  as  we  have  seen,  was  decided  on  wi  u'i ,  it 
is  clear,  was  the  misapprehension  of  Pollock,  B.,  as  to  the  stress 
laid  by  James,  L.  J.,  on  the  distinction  between  the  words  "  as 
agents  for,"  in  Paice  v.  Walker,  and  "  on  account  of,"  in  Gadd  v. 


»  2  Sm.  Lead.  Cas,  399. 

*  Briggs  V.  \  Light.  Boat,  89  Mass.  287. 
«  6  El.  &  B.  125. 

♦  L.  R.  5  Lx.  173,  176. 
»  1  Ex.  Div.  36/. 


•  4  Ex.  Div.  104. 

'  L.  R.  6  Ex.  173. 

•  6  El.  &,  B.  125. 
»  4  Ex.  Div.  104. 


w 

'1  11 '  If 

i    i;; 

^  fill 

'  i  i5 


.1  !  i: 


!    i 


\M 


v. 


534 


COMMENTARIES  ON  SALES. 


[book  II. 


Houghton ;  from  which  he  concluded,  as  the  words  "  as  agents 
for  "  are  also  in  Hough  v.  Manzanos,  that  he  was  bound,  evidently 
against  his  own  opinion,  apart  from  the  effect  upon  it  of  his  view 
of  the  holding  in  Paice  v.  Walker,  to  follow  the  holding  in  this 
latter  case.  The  distinction  between  "  as  agents  for  "  and  "  on 
account  of  "  is,  in  the  connection  in  which  these  words  are  used, 
so  extremely  nice  as  to  be  scarcely  distinguishable,  and  if  Gadd  i". 
Houghton  is  correctly  decided,  as  we  think  it  is,  then,  obviously, 
we  think  Hough  v.  Manzanos  is  not.  And  yet  we  think  the  dis- 
tinction between  the  facts  in  Gadd  v.  Houghton,  in  Hough  v.  Man- 
zanos, and  in  some  of  the  cases  in  which  a  decision  adverse  to  the 
holding  in  Gadd  v.  Houghton  has  been  reached,  is  so  extremely 
thin  as  to  be  inappreciable,  and  that  if  Gadd  v.  Houghton  is  sound 
law,  there  are  other  cases  which  have  been  differently  decided, 
which  are  not  so.  Of  course  all  these  questions  arise  out  of 
cases  where  the  language  is  not  as  clear  as  it  might  be.  In  all 
of  these  cases,  the  same  rule  is  either  directly  or  qualifiedly  acted 
on,  namely,  that  where  a  person  signs  a  contract  in- his  own  name 
without  qualification,  he  is  primd  facie  to  be  deemed  to  be  a  per- 
son contracting  personally,  and  in  order  to  prevent  this  liability 
from  attaching,  it  must  be  apparent  from  the  other  portions  of 
the  document  that  he  did  not  intend  to  bind  himself  as  principal. 
We  are  very  much  of  the  opinion  of  James,  L.  J.,  in  Gadd  r. 
Houghton,  that  ihe  rule  is  badly  expressed,  and  that,  whether  the 
language  be,  "  T,  A.  B.,  as  agent  for  C.  D.,  have  sold  to  you,"  and 
signing  "  A.  B.,"  or  "  I  have  sold  to  you,"  and  signing  "  A,  B., 
for  C.  D.,  the  seller,"  the  legal  effect  is  the  same.  The  rule 
better  expressed  is  simply  the  old  common-law  rule,  applicable 
to  written  contracts :  In  construing  the  contract  the  v;liole  lan- 
guage of  the.  contract  must  be  taken  into  consideration.  We 
venture  to  say,  if  this  sounder  way  of  stating  the  rule  had  been 
acted  on,  rather  tlian  attempting  to  act  on  the  other  badly  stated 
rule,  some  of  the  other  decisions  would  have  been  nearer  that  of 
Gadd  V.  Houghton  than  they  are. 

Thus,  in  Cooke  v.  Wilson,^  where  the  language  was  quite  as 
strong  as  in  Gadd  v.  Houghton,  —  "  on  behalf  of,"  which  is  clearly 
quite  as  plain  as  "  on  account  of,"  to  show  a  contract  for  a 
principal,  —  it  was  held,  because  the  agent  signed  his  name,  with- 
out adding  "  as  agent,"  fhat  he  was  the  principal  to  the  contract. 
We  think  that,  quite  plainly,  had  the  sound  rule  of  law,  that  iii 
construing  the  contract  the  whole  language  of  the  contract  is  to 
be  looked  to,  been  applied  to  this  case,  the  decision  would  not 
have  been  contrary  to,  but  in  harmony  with  the  more  recently, 

»  1  c.  B.  N.  3.  163. 


PART  VIII.] 


AGENCY. 


535 


and,  we  think,  the  better  decided  case  of  Gadd  v.  Houghton. 
Looking,  in  Cooke  v.  Wilson,  at  "  the  other  portions  of  the  con- 
tract," it  is  quite  "  apparent "  that  the  contract  was  made  "  on 
account  of  "  or  "  on  behalf  of "  a  principal ;  language  clearly 
quite  as  strong  and  conclusive  in  the  body  of  the  contract  as 
though  to  the  signature  had  been  added  the  no  stronger  (or,  as 
Pollock,  B.,  in  Hough  v.  Manzanos,  deemed  that  Gadd  v.  Houghton 
and  Paice  v.  Walker,  in  conjunction,  had  decided  them  to  be,  the 
weaker)  words,  "  as  agent  for."  ^ 

In  fact,  in  Lcnnard  v.  Robinson ,2  the  signature  to  a  charter- 
party  was  expressly,  "  by  authority  of,  and  as  agents  for  S.  of 
Memel,  R.  &  F.,"  and  yet  it  was  held  that  the  defendants  were 
liable ;  the  terms  of  the  contract  showing  that  they  contracted 
personally.  In  this  case  the  charter-party  was  made  between  the 
plaintiff  and  "  R.  &  F.  of  Loudon,  merchants,"  for  a  cargo  of 
salt,  "  which  the  said  merchants  («'.  e.  R.  &  F.)  bind  themselves 
to  ship."  They  were  held  liable  on  tiieir  express  contract.  On 
the  other  hand,  in  Oglesby  v.  Yglcsias,'*  the  signature  was  simply 
that  of  the  defendant,  but,  in  the  body  of  the  charter-party,  he 
was  described  "  as  agent  for  the  freighter,''  with  an  express  dis- 
claimer of  liability  by  the  signer,  as  the  "  charter  was  concluded 
for  another  party,"  and  it  was  held  that  he  was  not  liable.  These 
cases  were  decided  with  undoubted  correctness  on  a  proper  con- 
struction of  all  the  language  in  the  contracts.'* 


1  See  also  Downnian  v.  Williams  (7  Q. 
B.  103),  where  the  Exchequer  ('hanilx-r, 
reversing  the  decision  of  the  Court  of 
Queen's  Bench  (Jones  v.  Downnian,  4  Q. 
B.  235),  held,  on  the  very  language  used 
in  Cooke  v.  Wilson  (1  C.  B.  N.  s.  153), 
"on  behalf  of,"  that  the  party  signing  his 
own  name,  without  any  such  a»!ix,  as 
agent,  was  not  liable  as  a  priiiciim'.  Sco 
also,  Lucas  v.  Beale,  10  C.  B.  7:^9.  The 
following,  in  the  American  note  to  Leii- 
naid  V.  Robinson,  5  El.  &  B.  125,  131, 
is  well  laid  down  :  It  is  not  sutlicient, 
to  cliiirge  the  principal  or  iirotect  the 
agent  from  personal  responsibility,  merely 
to  describe  himself  as  agent,  if  the  lan- 
guagi'  of  the  instrument  imjwrts  a  per- 
sonal contract  on  his  part.  But  where 
the  name  of  the  principal  appears  on  the 
face  of  the  instrument  or  contract,  and  it 
is  evident  that  the  agent  did  not  intend 
to  bind  himself,  personally,  but  acted 
merely  on  Iwhalf  of  the  principal,  if  he 
acted  by  comi^tent  authority,  the  princi- 
pal an  i  not  the  agent  will  be  bound. 
IVntc  V.  Stanton,  10  Wend.  271.  See 
Honkins  V.  Mehaffy,  11  Ser.  &  K.  129  : 
Kirkpatrick  v.  Stainer,  22  Wend.  244  ; 
Tainter  v.  Prendergast,  3  Hill,  72;  Sy- 
fflomls  V.  Heard,  22  Pick.  121. 


2  3  El.  &  B.  125. 

8  E.  B.  &  E.  930. 

♦  See,  to  the  same  effec:';,  i  1  Tson  i;. 
Lotinga,  28  L.  T.  267,  where  i!  agent, 
signing  in  his  own  name,  without  any 
alBx,  but  describing  himself  in  th.;  charter- 
party,  was  held  liable  only  as  far  as 
he  contracted  in  the  charter-party  to 
become  so.  But  in  an  action  on  a  writ- 
ten agreement,  purporting  on  the  face 
of  it  to  be  made  l>y  the  defendant,  and 
subscribed  by  him,  for  tlie  sale  and  do- 
livery  by  him  of  goods,  it  is  not  com- 
IKJtent  lor  the  defendant  to  discharge 
himself  on  an  issue  o..  tlie  pl"a  of  non- 
assumpsit,  by  proving  tliat  the  agreement 
was  really  i  ade  by  liim  by  the  authority 
of,  and  as  agent  for,  a  third  person,  and  that 
the  plaintiir  knew  these  facts  at  the  time 
the  agreement  was  made  and  signed  ;  as 
that  would  violate  the  rule  against  allow- 
ing parol  evidence  to  contradict  the  written 
agreement.  Higgins  v.  Senior,  8  M.  & 
W.  834.  Such  evidence  may  be  given  to 
charge  the  principal,  but  not  to  discharge 
a  party  from  liability  on  a  written  con- 
tract, on  the  face  of  which  ho  appears  to 
be  liable.  See  Jones  v.  Littlodale,  6  A.  & 
E.  486  ;  Magee  v.  Atkinson,  2  M.  &  W. 
440  ;  Sowerby  v.  Butcher,  2  Cr.  &  M.  371  ; 


Mil 


i-  I  ,;|    n 


■i! 


n 


:  "''I 


-til 


636 


COMMENTARIES  ON  SALES. 


[book  II. 


The  defendant,  a  broker,  and  known  by  the  plaintiffs  to  be  such, 
signed  and  sent  to  the  plaintiffs  a  note  of  a  contract  in  the  follow- 
ing terms  :  "  I  have  this  day  sold  by  your  order,  and  for  your  ac- 
count, to  my  principals,  about  five  tons  of  pressed  anthracene.  .  .  . 
W.  A.  Bowditch."  The  defendant  sent  to  the  purchasers,  Messrs. 
Bloth  &  Co.,  a  bought  note  corresponding  to  the  sold  note  scut  to 
the  plaintiffs.  The  defendant  disclosed  to  the  plaintiffs  the  name 
of  the  purchasers  before  the  prompt  day.  An  attempt  was  made 
at  the  trial  to  prove  usage  making  the  defendant  personally  liable, 
but  failed.  The  note  showed  that  the  sale  was  mado  subject  to 
"  one  per  cent,  brokerage."  It  was  claimed  for  the  plaintiffs  that 
the  defendant  was  personally  liable  as  a  principal  for  the  price  of 
the  goods  delivered  under  the  contract.  It  was  contended  for  the 
defendant  that  the  note  did  not  import  personal  liability  on  the 
defendant's  part.  The  Common  Pleas  Division  held  that  the  de- 
fendant was  liable  ;  principally  on  the  ground  that  he  had  signed 
a  "  contract  in  his  own  name  without  any  qualification,"  and  that 
therefore,  "  even  although  in  the  body  of  the  document  there  may 
be  some  expressions  tending  to  show  that  he  is  acting  for  another, 
he  must,  nevertheless,  be  taken  to  have  intended  to  bind  himself 
as  principal."  ^    This  manifestly  incorrect  decision  came  before 


Garrett  v.  Handley,  4  B.  &  C.  664  ;  Bate- 
mau  V.  Pliilli{>s,  15  East,  272 ;  Pateison 
V.  Gandase([Ui,  15  Eiist,  62  ;  Le  Fuvre  v. 
Lloyd,  5  Taunt.  749 ;  Peiitz  v.  Stanton, 
10  Wend.  277  ;  Staukpolo  v.  Arnold,  11 
Mass.  27  ;  Sharp  v.  Lmniett,  5  Whart. 
283.  In  a  case  to  which  we  have  jirevi- 
ously  referred  (Bray  v.  Kettell,  1  Allen, 
80),  it  was  held  that  an  agent  is  not  per- 
sonally resironsible  on  contracts  entered 
into  by  him,  if  it  appears  that  in  ])oint  of 
fact  exclusive  credit  was  giv.'U  to  his  prin- 
ciiMiI ;  and  if  the  contract  i.<  in  writing, 
and  clear  and  unambiguous  in  its  terms, 
the  intention  of  tlie  parties  riust  be  gath- 
ered from  it  alone,  without  resorting  to 
other  facts  and  circumstances  to  vary  its 
construction  and  legal  eflcct.  So,  in  Green 
V.  Kopke  (18  C,  B.  549),  it  was  held, 
where  a  contract  in  writing  for  the  sale  of 
goods  is  entered  into  by  one  who  describes 
ninisolf  as  agent,  and  as  making  the  con- 
tract "as  agent,  and  on  behalf  of"  his 
principal,  naming  him  ;  that  the  party  so 
making  the  contract  is  not  personally  lia- 
ble. In  each  case  it  is  a  question  of  in- 
tention, to  be  gathered  from  the  contract. 
See  further,  Wilson  v.  Zulueta,  14  Q.  B. 
405  ;  Dolricks  v.  Ford,  23  How.  49  ;  Ex 
parte  Hartop,  12  Ves.  349 ;  Davis  v. 
McArthnr,  4  Greenl.  82,  note  ;  In  re  Re- 
becca, 1  Ware,  205  ;  Roberts  v.  Austin,  6 
Whart.  813  ;  Owen  v.  Gooch,  2  Eap.  667  ; 


Thomas  v.  Bishop,  2  Stra.  955  ;  Leadbitter 
V.  Farrow,  5  Mau.  &  S.  345  ;  Uuseiibury 
V.  Ellis,  3  Johns.  50  ;  Stackpole  ».  Arnold, 
11  Mass.  29  ;  Hastings  v.  Lowriiig,  2  Pick. 
221  ;  Hampton  v,  Speckenagle.  i)  Scr.  & 
R.  212 ;  Short  v.  Skipwith,  1  Brocken. 
103  ;  Uathbone  ,  Budlong,  15  Julius.  1 ; 
Goodenow  v.  Tyler,  7  Mass.  36  ;  Gicily  v. 
Bartlett,  1  Greenl.  172  ;  Corlies  v.  Gum- 
ming, 6  Cow.  181;  Zacharie  v.  Nasli,  13 
La.  20  ;  Mills  v.  Hunt,  20  Wend.  431 ; 
Newhall  v.  Uunlop,  14  Me.  ISO;  Mauri 
V.  Hefferman,  13  Johns.  58  ;  StiibtT  v. 
Hawkes,  5  M.  &  P.  549 ;  Hall  v.  Huntoon, 
17  Vt.  244  :  Chase  v.  Debolt,  2  Oilm. 
371;  Hunter  v.  Miller,  6  B.  Moii.  <iil; 
Anilrews  v.  Allen,  4  Harriiig.  452  ;  lio'^m 
V.  March,  33  Me.  106  ;  Johnson  v.  Smith 
21  Conn.  627. 

1  Per  Lord  Coleridge,  C.  J.,  iit  p-  l'^^*' 
seq.,  Southwell  v.  Bowditch,  1  C.  P.  D.  lOn. 
The  fallacy  of  Coleridgt%  C.  J.,  is  woll 
shown  where  he  says  :  "The  ciiriT'it  of 
decisions  is  too  strong  ...  to  contest 
the  proposition  that  when  a  man  si},'ns  a 
contract  in  his  own  name  witlmut  any 
qualification,  even  altliouRli  in  tlio  Iwily 
of  the  document  theiv  may  be  somh'  px- 
pressions  tending  to  show  thnt  In'  is  m't- 
ing  for  another,  he  must  nevrrtlioli-ss  he 
taken  to  have  intended  to  bind  liiinsclf  ns 
a  principal."  This,  in  that  case,  is  quite 
as  bad  as  the  statement  by  Smith,  in  hu 


PART  VIII.] 


AGENCY. 


687 


the  Court  of  Appeal,  on  appeal,*  when  the  decision  of  the  court 
below  was  reversed.  Jcssel,  M.  R.,  puts  the  principle  Involved 
clearly.  He  says  :  "  This  is  an  appeal  from  a  decision  of  the  Com- 
mon Pleas  Division,  interpreting  a  mercantile  contract.  The  first 
observation  which  I  wish  to  make  is  that,  so  far  as  I  know,  there 
is  in  law  no  difference  of  construction  between  mercantile  con- 
tracts and  other  instruments.  The  grammatical  meaning  is,  as  in 
other  cases,  the  meaning  to  be  adopted  unless  there  be  reason  to 
the  contrary.  In  the  present  case  there  can  be  no  doubt  that  the 
person  signing  this  contract  intended  to  sign  as  broker.  The 
contrac*^  ays, '  sold  by  your  order,  and  for  your  account,'  and  '  to 
my  principals.'  There  is  nothing  whatever  on  the  contract  to 
show  that  the  defendant  intended  to  act  otherwise  than  as  broker. 
No  doubt  it  does  not  absolutely  follow  from  the  defendant's  appear- 
ing on  the  contract  to  be  broker,  that  lie  is  not  liable  as  principal. 
There  are  two  ways  in  which  he  might  so  be  made  liable.  Firsts 
intention  on  the  face  of  the  contract  making  the  agent  liable  as 
well  as  the  principal.  Secondly,  usage.  But,  as  to  usage,  none 
was  proved  ;  and  I  can  see  nothing  on  the  face  of  this  contract  to 
make  the  agent  liable  as  well  as  the  principal.  There  is  no  more 
vicious  line  of  argument,  if  I  may  say  so  with  deference  to  the 
court  below,  than  that  which  was  adopted  by  the  court  below  in 
this  case,  of  comparing  one  contract  with  another,  and  saying  it 


Leading  Oases  (Vol.  ii.  400,  8th  ed. ),  which, 
discoiiiie  :ted  from  its  context,  has  proved 
misleaJiuj.',  tliat  "it  may  be  laid  down  as 
a  geiicral  rule,  that  where  a  person  signs  a 
contract  in  his  own  name,  without  quali- 
ficatiou  [i.  e.  in  connection  with  his  sig- 
nature], he  is  priind  facie  to  be  deemed 
a  person  contracting  pereonally."  As  was 
well  heUl  in  Southwell  o.  Bowditch,  1 
C.  P.  Div.  374,  by  the  Court  of  Appeal, 
courts  are  bound  to  construe  mer'iantile 
contracts,  not  less  than  othur  contracts, 
by  the  words  used,  and  bij  the  iclwle  of 
the  words  iised,  body  as  well  as  signature, 
and  according  to  the  natural  and  usual 
meaning  of  those  words.  Under  this 
uihloubtedly  correct  principle,  what  was 
there,  in  this  case,  to  show,  where  the 
memorandum  or  note  of  the  contract  ex- 
"'•"s.-.!^  declared,  "I  have  this  day  sold  by 
yonr  order  and  for  your  account  to  my 
ITineipals,"  that  that  constituted  a  pur- 
chase for  himself,  by  the  party  signing 
such  u  memorandum,  simply  because  he 
signed  it  with  his  own  name,  "without 
"ny  qualificHtion  "  ?  What  "qualifica- 
tion "  could  possibly  be  required,  when,  in 
the  instniment,  signed  by  himself,  he 
fxprcssly  declares,  that  he  had  sold  by 
wir  order  and  for  their  account  to  his 


principals  1  who,  in  fact,  were  a  firm  of 
Bloth  &  Co.  The  incorrect  application  of 
a  grossly  misleading  rule,  u])on  which  we 
have  previously  animadverted,  is  well  il- 
lustrated by  the  holding  of  the  Common 
Pleas  Division  in  Southwell  v.  Bowditch, 
1  C.  P.  Div.  100.  There  is  another  ab- 
surdity in  that  case  which  was  not  referred 
to  by  the  Court  of  Appeal  in  reversing 
the  judgment,  namely,  that  as  the  defend- 
ant was  the  agent  of  the  sellers  in  making 
the  sale,  in  pretending,  as  he  certainly 
claims  to  have  done,  to  have  sold  to 
others ;  if  he  had  been  him.self  the  pur- 
chaser, he  was  acting  both  as  seller  and 
rurcha&er,  and  was  committing  a  frnud 
f,  under  such  a  contract,  he  liad  been 
actually  the  purchaser,  and  the  action  liad 
been  to  set  aside  the  .sale  on  the  ground  of 
his  having  be-in,  as  the  agent  of  the  sellers, 
the  fraudulent  purchaser,  there  can  l)e  no 
question  as  to  what,  in  that  case,  the  con- 
struction of  the  written  contract  would 
have  been.  For  that,  or  for  any  other 
purpose,  the  contract  clearly  is  optni  to  but 
one  construction,  namely,  that  which  was 
placed  upon  it  by  the  Court  of  Appeal,  in 
overruling  the  utterly  untenable  decision 
of  the  court  below. 

1  Soatliwell  V.  Bowditch,  1 C.  P.  D.  374. 


f 


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!"l  - 


i    -r 


'm 


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I  1 


ji,"     !■       1 


m 
\% 

m 


588 


COMUENTABIES   ON  SALES. 


[book  II. 


diflfers  very  little  ;  you  arrive  ultimately  at  identifying  wholly  dif- 
ferent contracts."  A  distinction  was  admitted '  between  the  cases 
where  the  broker  uses  the  language,  "  sold  for  you  to  my  princi- 
pals," as  in  this  case,  and  "bought  of  you  for  my  principals ;" 
in  the  latter  case,  the  broker  being  himself  liable  where  the  princi- 
pal was  undisclosed,  but  not  in  the  former,  as  it  shows  that  he  was 
the  agent  of  the  seller  himself. 

To  an  action  for  damages  for  not  accepting  goods  "  to  arrive," 
the  defendant  pleaded,  by  way  of  equitable  defence,  that  the  con- 
tract was  made  with  one  H.,  who  was  the  agent  of  and  intrusted 
by  the  plaintiff  with  the  possession,  etc.,  of  the  goods  as  apparent 
owner  thereof ;  that  H.,  with  the  consent  of  the  plaintifi",  con- 
tracted in  his  own  name,  and  that  the  defendant  believed  him  to  be 
the  owner,  and  did  not  know  that  the  plaintiff"  was  the  owner  of 
or  interested  in  the  goods,  or  that  H.  was  an  agent ;  that  II.  was 
afterwards  adjudicated  a  bankrupt ;  that,  before  the  bankruptcy, 
mutual  credit  had  been  given  by  the  defendant  and  II.  in  respect 
of  the  sale  of  the  goods  under  the  contract,  and  in  respect  of 
money  payable  by  II.  to  the  defendant  upon  accounts  stated,  etc., 
before  the  bankruptcy  and  before  the  defendant  had  notice  tliat 
H.  was  acting  as  agent ;  claiming  a  set-off.  There  was  a  second 
count  in  the  declaration  (which  would  have  raised  a  very  different 
question)  for  goods  bargained  and  sold  ;  but  this  count  was  with- 
drawn. The  declaration  remained,  therefore,  with  but  tlie  count 
for  refusing  to  accept  and  pay  for  the  cotton.  To  such  a  count, 
the  Court  of  Common  Pleas  held  ^  the  plea  to  be  bad  ;  the  action 
being  for  unliquidated  damages,  and  the  set-off  not  within  the  rule 
in  George  v.  Clagett.^  Had  the  defendant  accepted  the  goods,  and 
the  action  been  for  the  price,  or  had  the  expunged  count  been  re- 


I  Per  Hellish,  L.  J.,  at  p.  379. 

«  Turner  v.  Tliomas,  L.  R.  6  C.  P.  610. 

A  usage  in  the  wool  trade  in  Liver- 
pool, that,  when  a  broker  is  employed 
to  buy  wool,  he  may  either  contract  in 
the  name  of  his  principal,  or,  at  the  re- 
quest of  the  seller,  may,  without  conimu- 
uicating  the  fact  to  his  principal,  make 
himself  personally  responsible  for  the 
price,  was  held  a  good  and  reasonable 
usage.  Cropper  v.  Cook,  L.  R.  3  C.  P. 
194.  And,  therefore,  a  set-off  between  the 
purchasers  and  broker  was  allowed.  lb. 
In  England,  by  the  usage  of  the  Stock 
Exchange,  where  buyer  and  seller  may  or 
may  not  both  be  acting  for  a  principal, 
though  no  principal  is  named,  yet  it  is 
held  that,  notwithstanding  that  as  be- 
tween members  of  the  Stock  Exchange 
among  themselves  all  are  principals,  the 


parties  on  whose  behalf  the  contract  is 
made  may  sue  each  otlier  upon  it,  Taylor 
J'.  Stray,  2  C.  B.  n.  s.  175  ;  s.  c.  in  error, 
lb.  197.  A  person  who  employs  a  broker 
on  the  Stock  Exchange  impliedly  gives 
him  authority  to  act  iii  accordance  with 
the  rules  there  estaldished,  though  siieli 
principal  may  himself  be  ignorant  of  the 
rules.  Pollock  v.  Stables,  12  (,).  B.  :«!). 
See  Lamert  v.  Heath,  15  M.  &  W.  486; 
Bosanquet  i>.  Shortridge,  4  Kx.  699 ;  West- 
ropp  V.  Solomon,  8  C.  H.  345. 

*  7  T.  R.  359.  The  hoMing  in  Ocorfje 
V,  Clagett  is  that  if  a  factor  who  sells 
under  a  del  credere  commission,  sells  {joods 
as  his  own,  and  the  buyer  knows  notliinj; 
of  anj  principal,  the  buyer  may  set  olf 
any  aemand  he  may  have  on  the  factor 
against  the  demand  for  the  goods  made  by 
tlie  principal. 


PART   VIII.] 


AGENCT. 


589 


tained,  the  principle  in  George  v.  Clagett  would  have  applied,  and 
the  set-off  would  have  been  allowed.^ 

C,  a  broker,  was  authorized  by  the  defendant  to  buy  cotton  for 
liim,  but  not  to  disclose  his  name.  C.'s  credit  not  being  good 
enough  to  enable  him  to  obtain  a  contract  upon  his  own  sole  re- 
sponsibility, he  gave  the  plaintiffs  the  name  of  his  principal,  and 
bought  and  sold  notes  were  exchanged  between  the  plaintiffs  and 
C,  in  which  the  latter  was  named  as  the  buyer.  C.  sent  the 
defendant  an  advice-note,  informing  him  that  he  had  bought  the 
cotton  of  the  plaintiffs  "  for  him,"  and  the  defendant  did  not  repu- 
diate the  transaction.  An  invoice  was  made  out  to  C,  and,  the 
market  fulling,  C.  was  called  upon  to  accept  and  pay  for  the  cot- 
ton, and  threatened  with  legal  proceedings.  Failing  to  obtain 
payment  from  C,  the  plaintiffs  sued  the  defendant.  Held,  by  the 
Court  of  Common  Pleas,  affirmed  by  the  Exchequer  Chamber,  that 
the  fact  of  the  defendant's  name  being  disclosed  at  the  time  of 
the  contract  did  not  preclude  the  plaintiffs  from  having  recourse 
to  him  ;  that  parol  evidence  of  the  circumstances  under  which  the 
contract  was  made,  was  admissible  ;  and  that  the  insertion  of  C.'s 
name  in  the  contract,  though  his  principal  w^as  known  at  the  time, 
ar.d  the  subsequent  demands  on  C.  for  payment,  did  not  necessa- 
rily amount  to  an  election  on  the  part  of  the  plaintiffs  to  give 
credit  to  C,  and  to  him  only.'-' 

Where  a  contract  is  signed  by  one  who  professes  to  be  signing 
"  as  agent,"  but  who  has  no  principal  existing  at  the  time,  and 
tlie  contract  would   be  wholly  inoperative  unless  binding  upon 


'  111  Sims  '!.  Bond,  5  B.  &  Ad.  389. 
393,  Lonl  Deimian,  in  delivering  the 
juilijment  of  the  uourt,  says:  "It  is  a 
well-established  rule  of  law,  that,  where  a 
contract  not  under  seal  is  made  with  an 
agent  in  his  own  name  for  an  undisclosed 
priiiL'ipHl,  either  the  agent  or  the  principal 
niiiy  sue  ujwn  it ;  the  defendant  in  the 
latter  case  being  entitled  to  be  placed  in 
the  same  situation,  at  the  time  of  the 
tliselosuro  of  the  real  principal,  as  if  the 
agent  had  been  the  contracting  party." 
But  in  Turner  i;.  Thomas,  L.  R.  6  C.  P 
610,  it  was  held,  that  the  statute  of  set-off, 
as  extended  by  the  English  Bankruptcy 
Act,  1860,  did  not  apply  as  to  the  two  prin- 
cipals in  a  case  of  unliquidated  damages. 
*>ee  Hudson  v.  Granger,  5  B.  &  Aid.  27  ; 
Rose  r.  Hart,  8  Taunt.  499 ;  Ex  parte 
Deeze,  1  Atk.  228  ;  Chase  i;.  Westmore, 
5  M.  &  S.  180  ;  Smith  i-.  Hodson,  4  T.  R. 
211  ;  Olive  V.  Smith,  5  Taunt.  59. 

»  Calder  v.  Dobell,  L.  R.  P  C.  P.  486. 
The  rule  is  laid  down  by  Parke,  B.,  in 
Higj,'ins  V.  Senior,  8  M.  &  W.  834,  844,  as 
follows:  "There  is  uo doubt  that  where 


such  an  agreement  is  made  it  is  compe- 
tent to  show  that  one  or  both  of  the  con- 
tracting parties  were  agents  for  other 
persons,  and  acted  as  such  agents  in 
making  the  contract,  so  as  to  give  the 
benefit  of  the  contract  on  the  one  lia'sJ  to, 
and  charge  with  liability  o'l  the  other, 
the  unnamed  princi|)als."  [''Unnamed 
princi|>als  there  meaning  principals  not 
named  in  the  contract  itself."  Per  Bo- 
vill,  C.  J.,  in  Calderv.  Dobell,  L.  R.  « 
C.  P.  490.]  "And  this  whether  the 
agreement  he  or  be  nut  '•'tjuired  to  be  in 
writing  by  tht  statute  '  i  frauds  ;  and  this 
evidence  in  no  vvay  "  .itradicts  the  written 
agreement.  t  >li.<s  not  deny  that  it  is 
binding  on  those  whom  on  the  face  of  it 
it  purports  1o  bind  ,  but  shows  that  it 
also  binds  ar  other  iiy  roasoii  that  the  act 
of  the  agent  in  signing  the  agreement,  in 
pursuance  of  his  authority,  is  in  law  the 
act  of  the  prin.-ijial."  See  also,  to  the 
same  effect,  Beckham  v.  Drake,  9  M.  & 
W.  79,  96;  Truen.an  r.  Loder,  11  A.  & 
E.  689  ;  Mortimer  v.  McCallan,  6  M.  & 
"W.  68. 


'i 


?ln 


!'■    ! 


If" 


540 


COMMENTARIES  ON  SALES. 


[book  II. 


PART   VIII 


the  person  who  signed  it,  he  is  personally  liable  on  it;  and  a 
stranger  cannot  by  a  subsequent  ratification  relieve  him  from 
that  liability.  Thus,  a  company  being  projected  for  carrying  on 
the  business  of  an  hotel,  and  purchasing  the  premises  and  stuck 
of  goods  of  the  plaintiff,  the  following  agreement  was  entered 
into  :  "  Jan.  27, 1866.  To  A.,  B.,  and  C,  on  behalf  of  the  pro- 
posed Gravcsend  Royal  Alexandra  Hotel  Company.  I  hereby 
propose  to  sell  the  extra  stock  [of  goods],  as  per  schedule  hereto, 
for  the  sum  of  £900,  payable  on  Feb.  28, 1866  "  (signed  by  the 
plaintiff).  "  We  have  received  your  offer  to  sell  the  extra  stock 
as  above,  and  we  hereby  agree  to  accept  the  terms  proposed." 
(Signed)  "  A.,  B.,  and  C,  on  behalf  of  the  Gravesend  Royal  Alex- 
andra Company."  The  goods  were  handed  over  to  the  reprosou- 
tatives  of  the  proposed  company,  and  were  consumed  in  the  busi- 
ness. At  a  meeting  of  the  directors  of  the  company  on  Feb.  1, 
the  arrangement  was  ratified  by  them.  There  was  also  a  subse- 
quent ratification  by  the  company  on  April  11 ;  but  this  was  after 
the  commencement  of  the  action.  The  company  obtained  a  cer- 
tificate of  incorporation  on  Feb.  20,  but  collapsed  without  paying 
for  the  goods.  An  action  having  been  brought  against  the  de- 
fendants, upon  the  agreement  of  Jan.  27,  oral  evidence  was  ten- 
dered for  the  purpose  of  showing  that  it  never  was  intended  that 
they  should  be  personally  liable  ;  but  it  was  rejected.  The  defence 
was  that,  inasmuch  as  the  agreement  was  not  entered  into  by  the 
defendants  personally,  but  only  as  agents  for  the  hotel  company, 
they  thereby  incurred  no  personal  obligation  to  the  plaintitT,  who 
was  himself  one  of  the  promoters  of  the  company.  For  the  plain- 
tiff it  was  insisted  that,  mere  being  no  company  in  existence  at 
the  time  of  the  agreement,  the  parties  thereto  had  rendered  them- 
selves personally  liable  ;  and  that  there  could  be  no  ratification  of 
the  contract  by  a  subsequently  created  company.  This  view  was 
sustained  by  the  court,  which  held  that  A.,  B.,  and  C.  were  per- 
sonally liable  on  their  agreement,  as  for  goods  sold  and  delivered ; 
that  no  subsequent  ratification  by  the  company  could  relieve  them 
from  that  liability  without  the  assent  of  the  plaintiff ;  and  that 
parol  evidence  was  not  admissible  to  show  that  personal  liability 
was  not  intended.* 


»  Kelner  v.  Baxter,  L.  B.  2  C.  P.  174. 
Erie,  C.  J.,  in  discussing  the  questions  in- 
volved, thus  states  the  general  law :  "  The 
cases  referred  to  in  the  course  of  the  argu- 
ment fully  hear  out  the  proposition  that, 
where  a  contract  is  signed  by  one  who 
professes  to  be  s  gning  'as  agent,'  but 
who  has  no  principal  existing  at  the  time, 
and  the  contract  would  be  altogether  in- 
operative unless  binding  upon  the  person 
who  signed  it,  he  is  bound  thereby;  and  a 


stranger  cannot,  by  a  subsequent  ratifica- 
tion, relieve  him  from  that  responsibility. 
When  the  conii»any  came  afterwards  into 
existence  i:  was  a  totally  new  cn-ature, 
having  rights  and  obligations  from  that 
time,  out  no  rights  or  obligations  by  rea- 
son of  anything  which  might  have  Ix-en 
done  before.  It  was  once,  indeed,  thought 
that  an  inchoate  liability  might  l)e  in- 
curred on  behalf  of  a  proposed  company 
which  would  become  binding  on  it  when 


viere,  or  bei 


PABT  VIII.] 


AQENCY. 


541 


A  similar  question  came  up  iu  Scott  v.  Lord  Ebury.*  There, 
one,  J.,  acting  as  the  solicitor  and  secretary  of  a  projected  railway 
company,  by  the  authority  of  the  promoters,  and  by  means  of  a 
cheque  signed  by  two  of  them,  obtained  from  the  plaintiff  an  ad- 
vance of  .£500,  to  be  applied  iu  payment  of  parliamentary  fees, 
upon  an  agreement  expressing  that  it  was  "  to  be  repaid  out  of 
the  calls  on  shares."  An  act  authorizing  the  construction  of  the 
railway  passed,  the  promoters  being  named  therein  as  the  first 
directors ;  and,  at  a  meeting  subsequently  held,  the  directors 
passed  a  resolution  that  the  acts  of  J.  should  bo  adopted  and  con- 
firmed. No  shares  were  allotted  or  calls  made,  and  the  undertak- 
ing was  not  proceeded  with.  It  was  held  that  the  advance  was 
made  upon  the  personal  responsibility  of  those  who  signed  the 
cheque,  and  that  the  subsequent  adoption  of  their  acts  by  the  di- 
rectors did  not  alter  their  position.  In  answer  to  the  contention 
that  the  original  liability  had  been  got  rid  of  by  the  subsequent 
ratification  of  the  contract  by  the  company,  one  of  the  judges  ^ 
said  :  "  That,  however,  could  have  no  effect ;  because,  putting  out  of 
view  the  cases  of  assignees  of  bankrupts  and  administrators,  there 
is  no  case  in  which  a  person  can,  by  a  subsequent  ratification, 
make  himself  liable  as  principal,  so  as  to  discharge  the  agent, 
where  the  principal  was  not  in  existence  at  the  time  of  the  origi- 
nal contract."  He  likened  it  to  the  case  of  a  man  who  has  at- 
tained the  age  of  twenty-one,  being  sought  to  be  charged,  by 
ratification,  with  a  contract  made  when  he  was  in  ventre  de  aa 
mere,  or  before.* 


subsequently  formed ;  but  that  notion  was 
manifcvstly  contrary  to  the  principles  ujwn 
which  the  law  of  contract  is  founded. 
There  must  be  two  parties  to  a  contract, 
anil  the  rights  and  obli^tions  which  it 
creatts  cannot  be  transferre<l  by  one  of 
them  to  a  third  person  who  was  not  in  a 
condition  to  be  bound  by  it  at  the  time  it 
was  made."  lb.  183.  See  Doubleday 
».  Muskftt,  7  Bing.  110  ;  Hutchison  v. 
Siimv,  Ac.  Assoc,  11  C.  B.  689;  Payne 
V.  New  .^.luth  Wales,  &c.  Co.,  10  Kx. 
283 ;  (5unn  v.  London  &  Lancashire  Fire 
Ins.  Co.,  12  C.  B.  N.  .s.  694;  Lewis  v. 
Nichol.son,  18  Q.  B.  503,  5\0 ;  Hall  v. 
Ashurst,  1  C.  &  M.  714;  Watson  v.  Mur- 
rell.  1  C.  &  P.  307  ;  Meriel  v.  Wymond- 
sold,  FLirdr.  205 ;  CuUcn  v.  Duke  of 
Que"nsb\iry,  1  Bro.  C.  C.  101.  The  mere 
fact  of  a  person  professing  to  sign  a  con- 
traet,  for  or  on  behalf  o"  as  agent  for 
anntlier,  will  not  per  se  prevent  responsi- 
bility as  a  contracting  party  attaching  to 
the  former.  Tanner  v.  Christian,  4  E,  & 
B.  591 ;  Leonard  v.  Robinson,  5  E.  &  B. 
12.5.  In  Ex  parte  Hartop,  12  Ves.  349, 
352,  Lord   Erskine  says :    "  No  rule  of 


law  is  better  ascertained,  or  stands  upon 
a  stronger  foundation,  than  this,  —  t  liat 
where  an  agent  names  his  principal,  the 
principal  is  responsible,  not  the  ag!ut ; 
but,  for  the  application  of  this  rule,  the 
agent  must  name  his  principal  as  the  ntr- 
son  to  be  responsible.'  See  Davis  v.  J,Ic 
Arthur,  4  Oreenl.  82,  n. ;  In  the  Case  of 
The  llebecca,  1  Ware,  205  ;  Koberta  v. 
Austin,  5  Whart.  313;  Miildlesex  Turnpike 
Corp.  V.  Tuft.s,  8  Mass.  2()6.  In  Roberts  v. 
Austin,  5  Whart.  315,  Rogers,  J.,  states 
the  rule  to  the  same  etl'cct  as  Lord  Kr- 
skine,  in  Ex  pnrte  Hartop,  12  Ves.  849, 
852,  thus  :  "  It  is  a  well-established  r.ile 
of  law  that  when  an  agent  names  his  prin- 
cipal, the  principal  is  resjwnsible,  not  the 
agent.  But  the  agent  must  name  his  prin- 
cipal as  the  wrson  to  be  responsible.' 

1  L.  11.  2  C.  P.  255. 

a  Willes,  J.,  at  p.  267. 

•  This  case  followed  the  principles  laid 
down  in  Kelner  r.  Baxter,  L.  R.  2  C.  P. 
174,  stated  supra.  See  also  Pilbrow  v. 
Pil brow's  Atmospheric  Ry.  Co.,  6  C.  B. 
440,  472. 


'      \ 


.; 


1      :•! 


;' 


^  1 1 
I  \  { I 


I  : 


542 


COMMENTARIES  ON    SALES. 


[book  II. 


By  a  contract  in  writing,  the  defendants  "  sold  to  "  the  plain- 
tiffs a  cargo  of  cotton-seed  cake  of  a  specified  quality.  The  con- 
tract contained  a  clause  that  "  should  any  of  the  above  goods  turn 
out  not  equal  to  quality  specified,  they  are  to  be  taken  at  an  allow- 
ance, which  allowance,  together  with  any  dispute  arising  on  this 
contract,  is  to  be  settled  by  arbitration."  The  defendant  signed  tlie 
contract  with  the  addition  of  the  word  "  brokers,"  and  were  acting 
as  agents.  Some  time  after  the  contract  was  signed,  the  defLMid- 
ants  named  their  principals.  The  cargo  proved  to  be  of  inl'(.'iioi" 
quality,  and  an  arbitration  (which  the  plaintiffs  did  not  attend)  to 
determine  the  liability  of  the  defendants  was  held.  The  arl)itra- 
tors  decided  by  their  award  that  the  defendants  were  not  liable, 
inasmuch  as  a  custom  existed  that  a  broker,  upon  naming  liis 
principals,  ceased  to  be  liable  on  the  contract.  On  action  by 
nlaintiffs  against  defendants  for  damages,  on  the  trial  the  jury 
found  that  the  alleged  custom  did  not  exist,  but  judgment  was  en- 
tered for  the  defendants  by  Hawkins,  J.  On  appeal,  this  decision 
was  reversed,  the  court,  Brett,  M.  R.,  and  Bowen,  L.  J.,  holding  — 
Pry,  L.  J.,  dissenting  —  that  the  defendants  were  personally  lia- 
ble on  their  contract,  notwithstanding  the  award  of  the  arbitra- 
tors, who  had  exceeded  their  jurisdiction.* 


1  Hutcheson  v.  Eaton,  13  Q.  B.  Div. 
861.  In  this  case  the  language  of  the 
contract  was  ;  "  We  have  this  day  sold  to 
you,"  etc.  Brett,  M.  K.,  said  :  "  The  first 
point  taken  on  behalf  of  the  defendants 
was  that  upon  this  contract,  the  defend- 
ants having  signed  as  brokers,  they  were 
not  personally  liable.  But  according  to 
the  authorities  as  I  understand  them, 
where  the  contract  is  drawn  up  in  this 
way,  and  the  signature  is  of  the  name  of 
the  persons  with  '  brokers '  added,  and  the 
contract  is  not  signed  as  '  brokers,'  they 
are  personally  bound  ;  for  it  is  said  to  be 
a  signature  on  their  own  behalf,  and  the 
word  'brokers'  is  only  a  description." 
The  other  question  arose  out  of  the  clause 
providing  for  an  arbitration  as  to  any  al- 
lowance to  be  made,  "which  allowance, 
together  with  any  dispute  arising  on  this 
contract,"  was  to  be  submitted  to  the  arbi- 
trators. The  majority  of  the  court  held, 
and  we  think  correctly,  that  tins  provi- 
sion did  not  empower  the  arbitrators  to 
decide  that  the  defendants  were  not  liable 
for  the  "allowance"  to  be  made  under  the 
contract ;  because  in  effect  they  were  not 
parties  to  the  contract,  nor  had  any  lia- 
bility under  it.  The  very  fact  that  under 
the  form  of  the  contract  the  defendants 
were  held  liable  as  principals,  the  agree- 
ment by  the  principals  to  submit  to  arbi- 
tration the  question  as  to  the  extent  of 
their  liability  as  principals  for  such  allow- 


ance as  might  be  decided  upon  by  arMtra- 
tors,  would  seem  clearly  to  oust' jiirisilic- 
tion  from  the  arbitrators  as  to  the  liiiliility 
of  the  defendants  as  principals  for  such 
allowance.  By  the  very  terms  of  the  con- 
tract, as  held  by  the  court,  the  priiifipals 
were  estopped  from  denying  that  tliey  were 

Erincipals,  and,  therefore,  the  iirbitratoi's 
ad  no  right  to  exenjpt  the  deffiuldiits 
from  their  liability  for  an  allowarue  on  a 
ground  which  the  defendants  themselves 
could  not  urge.  It  is  a  question  of  the 
construction  of  the  language  used  under 
the  light  of  the  surrounding  circumstan- 
ces, the  important  point  in  sueh  construc- 
tion being  the  concession  by  the  defend- 
ants (under  the  decision  as  to  their  lialiility 
as  principals)  that  they  wore  to  be  liable 
as  principals.  The  effect  of  the  decision 
of  the  arbitrators  was  virtually  that  there 
was  no  contract  with  the  defendants,  and, 
therefore,  there  could  be  no  liability  by 
the  defendants  for  the  "  allowance. "  As 
Bowen,  L.  J.,  said  :  "  It  is  a  question  of 
altering  a  contract,  and  construing  it  after 
it  has  been  violently  altered."  Hutcheson 
V.  Eaton,  13  Q.  B.  Div.  869. 

The  8  &  9  Vic.  c.  109,  §  18.  which 
makes  null  and  void  all  contracts  by  way 
of  wagering,  does  not  apply  to  the  c.ise 
where  one  makes  a  bet  through  an  a(,'ent, 
and  the  agent  receives  the  amount  of  the 
bet  from  the  other  principal.  In  such  case 
an  action  will  lie  agaiust  the  agent  by  his 


PART   VIII.] 


AOENCT. 


543 


Where  a  written  contract  was  made  by  brokers  on  behalf  of 
undisclosed  principals,  for  the  sale  of  hides,  which  provided  that 
«  if  any  difference  or  dispute  shall  arise  under  this  contract,  it  is 
hereby  mutually  agreed  between  the  sellers  and  buyers  that  the 
same  shall  be  settled  by  the  selling  brokers,  whose  decision  in 

party  for  himself  and  another  as  the 
iroight  of  a  vessel  on  an  allegtij  ilh'Knl 
voyage.  Lord  Cottouliani  says  :  "  Tht! 
plaintiir  is  not  seeking  compensation  and 
payment  for  an  illegal  voyage  ;  that  mat- 
ter was  disjwsed  of  when  the  defendant 
reeeived  the  money ;  and  the  plaintiff  is 
now  only  seeking  for  payment  of  his  share 
of  the  realized  proKt.  The  violation  of 
law  suggested  was  not  any  fraud  upon  the 
revenue  or  omission  to  pay  what  might 
be  due ;  but,  at  most,  an  invasion  of  a 
parliamentary  provision  supposed  to  be 
beneficial  to  the  ship-owners  of  this  coun- 
try, an  evil,  if  any,  which  must  remain 
the  same  whether  the  freight  be  divided 
between  tlio  plaintiff  and  defendant  ac- 
cording to  their  shares  or  remain  alto- 
gether in  the  hands  of  the  defendant.  Aa 
between  these  two,  can  this  supjiosed  eva- 
sion of  the  law  be  set  up  as  a  defence 
by  one  against  the  otherwise  clear  title  of 
the  other  ?  In  this  ]iarticular  suit,  can 
the  one  tenant  in  common  disjiute  the 
title  common  to  both  ?  Can  one  of  two 
partners  possess  himself  of  the  property 
of  the  tirni,  and  be  permitted  to  retain  it, 
if  he  can  show  that  in  realizing  it  some 
provision  in  some  act  of  parliament  has 
been  violated  or  neglected  ?  Can  one  of 
two  partners  in  any  impoii;  trade  defeat 
the  other  by  showing  that  there  was  some 
irregularity  in  passing  the  goods  through 
the  custom-house  I  The  answer  to  ihis. 
as  to  the  former  case,  will  be  that  the 
transaction  alleged  to  bo  illegal  is  com- 
pleted and  closed,  and  will  not  be  in  any 
manner  affected  by  what  the  court  is  asked 
to  do,  as  between  the  parties.  Do  the  au- 
thorities negative  this  view  of  the  case  ? 
The  difference  between  enforcing  illegal 
contracts  and  asserting  title  to  money 
which  has  arisen  from  them  is  distinctly 
taken  in  Tenant  v.  Elliott  (1  B.  &  V.  3), 
and  Farmer  v.  Russell  (1  B.  &  P.  296), 
and  recognized  and  approved  by  Sir  Wm. 
Grant  in  Thomson  v.  Thomson  (7  Ves. 
473)."  And  see  Head  v.  Anderson,  10 
Q.  B.  Div.  100;  13  Q.  B.  Div,  779;  Haw- 
son  r.  Hancock,  8  T.  R.  575  ;  Camden  i". 
Anderson,  1  B.  &  P.  272;  Farmer  v.  Rus- 
sell, 1  B.  &  P.  296  ;  Webb  v.  Brooke,  8 
Taunt.  6 ;  Davis  v.  Edgar,  4  Taunt.  63 ; 
Bensley  v.  Bignold,  5  B.  &  Aid.  333  ;  La- 
caussade  v.  White,  7  T.  R.  535  ;  Cannan 
r.  Bryce,  3  B.  &  Aid.  179;  Nockels  v. 
Crosby,  3  B.  &  C.  814,  819;  Bate  v.  Cart- 
wright,  7  Price,  540,  542. 


principal  for  the  money  reneivt^d  on  the 
bet.  Bridger  v.  Savage,  15  Q.  B.  Div.  363. 
Ill  Tenant  v.  Elliott,  1  B.  &  P.  4,  Buller, 
J.,  says  :  "  Is  the  man  who  has  paid  over 
money  to  another's  use  to  dis|)iite  the  le- 
gality of  the  original  considerution  <  Hav- 
iiif,'  once  waived  the  legality  the  money 
iihiill  never  come  back  into  his  hands 
again.  Can  the  defeiulant  then  in  con- 
science keep  the  money  so  jiaid  I  For 
what  purnose  should  he  retain  it  ?  To 
whom  is  he  to  pay  it  over !  Who  is  en- 
titled to  it  but  the  plaintiff?"  And  in 
lieeston  V,  Beeston,  1  Ex.  Div.  13,  Pol- 
lock, B.,  says:  "The  statute  is  directed 
against  suits  brought  for  recovering  on 
any  contnact  by  way  of  wagering.  That 
applies  to  actions  brought  by  one  party  to 
a  wager  against  the  other,  or  by  either 
against  the  stakeholder."  Beyer  v.  Ad- 
ams, 26  L.  J.  Ch.  841,  held  that  the  claim 
of  the  winner  of  a  bet  to  be  paid  out  of  the 
assets  of  the  deceased,  the  amount  which 
the  loser  had  placed  in  his  hands  for  the 
winner,  should  be  disallowe<l.  But  that 
case  has  been  overruled.  The  decisions 
are  very  clear  that  the  agent  cannot  set 
up  the  illegality  of  the  contract  upon 
which  money  came  to  his  hands  as  a  de- 
fence to  an  action  by  his  principal  for  the 
money.  Tenant  v.  Elliott,  1  B.  &  P.  3  ; 
Evans  v.  Pratt,  4  Scott  N.  R.  378  ;  Lyne 
I'.  Siesfield,  1  H.  &  N.  278  ;  Hastelow  v. 
Jackson,  8  B.  &  C.  221 ;  Lubbock  v.  Potts, 
7  East,  449 ;  Vandyck  v.  Hewitt,  1  East, 
96  ;  Bonsfield  v.  Wilson,  16  M.  &  W.  185. 
The  money  jiaid  into  the  hands  of  the 
winner  is  held  by  him  for  the  winner 
without  regard  to  the  circumstances  under 
which  it  was  obtained  by  or  became  pay- 
able to  him.  Thus  where  money  has  been 
paid  into  the  hands  of  a  thinl  party  by 
the  loser  of  a  wager  for  the  winner,  and 
such  third  party,  instead  of  paying  the 
money  to  the  winner,  has  given  him  a 
hill  of  exchange  or  promissory  note  for  it, 
the  amount  of  the  bill  or  note  has  been 
held  recoverable  by  the  winner  from  the 
depositee.  Johnson  v.  Lansley,  12  C.  B. 
468;  Knight  v.  Cambers,  15  C.  B.  562; 
Knight  V.  Fitch,  lb.  566  ;  Fitch  v.  Jones, 
15  El.  &  B.  238;  Quids  r.  Harrison,  10 
Ex.  572 ;  Jessop  v.  Lutwyche,  10  Ex. 
614.  In  Sharp  v.  Taylor,  2  Phil.  801, 
Lord  Cottenham  distinguishes  betw  ?en  en- 
forcing illegal  contracts  and  asserting  title 
to  money  which  has  arisen  from  them  in  a 
ciue  where  money  was  received  by  one 


iU 


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ip 


I     !J, 


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i 


■■  i.  .1 


544 


COMMENTARIES  ON  SALES. 


[book  II 


writing  shall  bo  final  and  binding  on  both  sellers  and  buyers;" 
in  an  action  against  the  brokers  in  respect  of  inferior  hides  deliv- 
ered under  the  contract,  the  buyers  mad'}  a  claim  for  the  broueh 
against  the  brokers,  as  principals,  by  custom  of  the  trade.  It 
wos  held  tha*  evidence  of  a  custom  of  the  trade,  that  a  broker  who 
docs  not  disclose  his  principal  is  personally  rcHponsible  for  the 
performance  of  the  contract  and  liable  for  the  breach,  was  rightly 
rejected,  as  such  custom  was  inconsistent  with  the  arbitration 
clause,  which  would,  if  the  custom  were  incorporated,  make  tlie 
brokers  judges  in  their  own  cause.' 

The  defendant,  a  stockholder,  who  had  undertaken  to  sell  shares 
of  a  joint  stock  bank,  for  the  plaintiff,  a  shareholder,  sold  thcin  to 
a  jobber  on  the  Stock  Exchange,  and  sent  an  advice  note  of  such 
sale  to  the  plaintiff,  but,  in  accordance  with  the  custom  of  the  Stock 
Exchange,  the  bought  and  sold  notes  between  the  defendant  and 
the  jobber  omitted  to  state  the  name  of  the  registered  proprietor 
of  the  shares,  as  required  by  30  and  31  Vic,  c.  29,  by  reason  of 
which  the  contract  for  sale  was  void  ;  and  the  bank  having  stopped, 
and  an  order  for  its  winding-up  having  been  made  before  the  day 
on  which  the  jobber  was  entitled  to  name  the  person  willing  to  be 
the  purchaser,  the  contract  for  sale  was  repudiated,  and  tlie  plain- 
tiff remained  the  holder  of  the  shares.  Held,  that  the  defendant 
had  committed  a  breach  of  duty  in  not  making  a  valid  contract  of 
sale,  notwithstanding  the  custom  of  the  Stock  Exchange  to  disre- 
gard the  said  statute,  as  such  custom  was  both  unreasonable  and 
illegal,  and  that  for  such  breach  of  duty  the  plaintiff  was  entitled 
to  recover  from  the  defendant,  by  way  of  damages,  the  price  at 
which  the  shares  had  been  sold.^ 


3.  Rights,  Powers,  and  Liabilities,  as  Between  Principals 

AND  Agents. 

These  matters  wo  consider  in  this  section  so  far  as  it  is  neces- 
sary for  our  purposes  to  do  so,  in  connection  with  questions  which 
have  arisen  relating  to  Sales,  or  are  incidental  thereto. 


>  Barrow  v.  Dyster,  13  Q.  B.  Div.  635. 
It  is  noteworthy  chat  in  this  case  the  con- 
tract was  for  foreign  principals,  bnt  this 
did  not  at  all  atfout  tiie  construction  of 
the  contract,  as  it  suiHcicntly  appeared  on 
the  face  of  the  contract  that  it  was  made 
by  brokers  tor  principals ;  and  in  such 
case  it  does  not  at  all  affect  the  construc- 
tion of  the  contract  as  regards  the  lia- 
bility or  non-liability  of  the  agent,  whether 
the  principals  are  home  or  foreign  princi- 
pals. The  arbitration  clause  in  Barrow 
V.  Dyster,  13  Q.  B.  Div.  635,  constituting 
the  brokers  arbitrators,  was  equivalent  to 


an  express  provision  in  the  contract  tlmt 
the  brokers  were  not  to  be  principals,  not- 
withstanding the  custom  ;  and  tiiiit,  there- 
fore,  the  custom  was  not  t«;  Iks  im-nrpo- 
rated  into  the  contract,  a  contract  wliich 
it  was  competent  for  the  parties  to  niuke. 
On  this  ground  the  soundness  of  the  case 
would  seem  scarcely  to  admit  of  doubt. 

*  Neilson  i;.  James,  9  Q.  B.  Div.  546. 
See  Rudge  v.  Bowman,  L.  R.  3  Q.  B.  689; 
Bowring  v.  Shepherd,  6  Q.  B.  309.  Sea 
also  cases  bearing  on  the  subject  of  this 
section  in  succeeding  sections  in  this 
Part. 


PART  VIII.] 


AGENCY. 


545 


The  pliiiiitiff,  a  merchant  in  London,  gave  orders  to  the  defend- 
ants, coiumiHHiun  agents  in  Ilong  Kong,  to  purchase  for  him  a 
quantity  of  a  certain  ivind  of  opium.  The  defenduuts,  upon  such 
orders,  purchased  and  shipped  to  the  plaintiiT,  opium  which  they 
erroneously  supposed  to  be  of  the  description  ordered,  but  which 
was  really  of  un  inferior  description.  Tlie  plaintilT  sought  to  re- 
cover as  damages  in  an  action  aguunt  the  defendants  the  difTor- 
ence  between  the  value  of  the  opium  ordered  and  that  of  the  opium 
actually  shipped  by  the  defendants,  on  the  ground  that  the  rela- 
tion between  the  defendants,  as  commission  agents,  and  himself, 
was  that  of  vendor  and  vendee  of  the  opium.  Ihld,  that  the  true 
measure  of  damages  was  not  the  diflerence  between  the  value  of 
the  goods  ordered  and  that  of  those  shipped,  but  the  loss  actually 
sustained  by  the  i)laintitr  in  consequence  of  the  opium  not  being 
of  the  description  ordered.' 

The  defendants  were  brewers,  and  employed  F.  as  their  "  malt- 
ing agent."  The  regular  course  of  business  between  the  defend- 
ants and  F.  was  as  follows  :  F.  occupied  the  malting  premises, 
and  took  out  tlio  necessary  licenses.  It  was  his  duty  to  buy  bar- 
ley in  his  own  name,  as  principal,  for  cash ;  to  send  in  to  the 
defendants  certain  periodical  accounts  of  the  barley  so  b^jught 
from  time  to  time,  and  the  prices  of  the  same ;  to  submit  samples 
U  the  defendants,  and  if  the  barley  was  approved  of  by  them,  to 


•  Ciissaboglou  V.  Oiblis,  9  Q.  B.  Pi  v. 
:}M  Tliu  court,  in  tlcliviTiiig  jiulgiiR'iit, 
s.r  :  "Tlie  pliiintiir  seeks  to  treat  tlie  do- 
iiiiiants  ns  veiidurs  of  the  opiiiin  to  liiiii, 
anil  to  hold  tliein  respon.sible  for  (hiiiiiigcs 
as  for  a  breach  of  warranty  of  the  kind 
and  ([uality  of  the  goods,  in  wliieh  case 
the  measure  of  damajjes  wouhl  he  not 
merely  the  ditVerence  between  the  cost  to 
him  (if  the  goods  and  tiieir  real  value,  but 
the  ilillVrence  between  th('  value  of  goods 
of  the  description  sold  and  of  tlic  goods 
ai'tiially  sent.  A  single  illustration  is 
surtiiient  to  show  the  fallacy  of  the  jilain- 
titrt)  contention,  Suiipose  one  instructs  a 
comiiiissidn  agent  to  purchase  for  him  a 
rcry  valuahle  original  pliturc  if  it  should 
he  olfered  for  sale,  and  the  agent  carelessly 
hills  for  a  picture  under  the  belief  that  it 
is  the  original,  and  it  is  knocke(l  down  to 
bim  lor  say  £100  ;  and  he  informs  liis  eni- 
i'loycr  that  he  has  bought  the  picture  for 
that  sum,  and  his  ('mplnyer  remits  the 
money,  and  the  picture  is  forwarded,  but 
upon  arrival  is  discovered  to  lie  merely  a 
fopy.  The  employer  rejects  the  picture  and 
it  is  sold  for  £90.  Now,  suppose  that  if 
it  hnil  been  the  original  jiicture  it  would 
have  heen  worth  £1000.  Is  the  ageiit  liable 
for  £[tlO  damages,  or  only  for  the  actual 

TOL.  I.  35 


loss  caused  to  his  emiiloycr  through  his 
want  of  care  and  skill  !  It  seems  to  ua 
that  the  latter  is  the  true  ineas\ire  of  dam- 
ages, and,  therefore,  that  our  judgment 
should  be  for  the  defendants."  Ihid. 
]>.  '2'J4.  The  case  was  taken  before  the 
Court  of  Ajijieal,  on  appeal,  when  the 
judgment  of  the  Queen's  ibnch  Hivision 
was  sustained,  s.  c,  vain.  Cassaliogloii  v. 
Gibb,  11  t,>.  15.  l»iv.  797.  This  is  nn- 
othi'r  case  where  the  relation  of  homo 
agent  and  foreign  principal  existed,  and 
it  was  strongly  urged  that  it  iK-camo, 
therefore,  in  etfcct  a  relation  between 
vendor  anil  vendee,  and  that  the  agent 
was  liable  as  a  jaincipal  as  such  ven- 
dor. I'>ut  both  courts  held  the  reverse, 
and  construed  the  contract  in  precisely 
the  same  way  as  though  it  had  no  ref- 
erence whatever  to  a  foreign  principal. 
But,  of  coin-se,  as  in  Turner  v.  Liverpool 
Dock  Trustees,  6  Kx.  iii'i,  it  is  competent 
for  one  acting  as  agent  —  for  instance,  in 
purchasing  goods  for  his  principal,  and 
paying  his  own  money  for  the  goods  —  to 
assume  the  position,  and  be  remitted  to 
the  rights,  as  to  stoppage  in  trnnsilii,  etc., 
of  a  venilor  or  qtinsi  vendor.  Feis(?  v, 
Wray,  3  Kast,  93;  .Silfken  i;.  Wray,  6  East, 
371;  Tucker  v.  Humphrey,  4  Biug.  516. 


^ 


l^r-i 


f 


.    :      ! 


II! 


S\ 


I II 


I  it; 


546 


COMHENTABIES  ON  BALES. 


[book  II. 


malt  it  and  deliver  the  malt  to  the  defendants,  receiving  a  com- 
mission upon  the  quantity  of  barley  steeped.  The  quantity  of 
malt  required  by  large  brewers  being  very  great,  the  brewers,  and 
not  the  malting  agents,  provide  the  capital  for  the  purchase  of  the 
barley.  In  the  present  case,  the  defendants  kept  accounts  at  cer- 
tain provincial  banks,  upon  which  F.  was  empowered  to  draw,  and 
from  time  to  time  the  defendants  paid  in  lump  sums  to  the  credit 
of  those  accounts,  in  accordance  with  current  requirements,  as 
sliown  by  the  accounts  sent  in  by  F.  of  barley  purchased,  but 
these  sums  were  not  intended  to,  nor  did  they  represent  any  pay- 
ment for  any  specific  bar?3y,  F.'s  business  was  to  act  as  malting 
agent  for  the  defendants  exclusively.  The  defendants  paid  the 
duty  as  the  same  became  payable  upon  the  malt  in  F.'s  premises. 
F.  had  fraudulently  departed  from  the  regular  course  of  business. 
Instead  of  buying  barley  for  cash  and  applying  the  balances  at 
the  provincial  banks  in  payment  for  the  same,  he  had  been  in  the 
habit  of  sending  into  the  defendants  fictitious  accounts  of  barley 
purchased,  misapplying  the  sums  paid  in  for  his  own  purposes,  and 
providing  the  malt  needed  for  the  defendants'  purposes  by  pur- 
chasing barley  or  ready-made  malt  upon  credit.  He  likewise  from 
time  to  time  sold  barley  which  had  been  brought  on  to  the  malt- 
ings  to  raise  money  for  his  own  purposes.  The  defendants  be- 
lieved, in  consequence  of  the  fictitious  accounts  and  other  false 
representations  of  F.,  that  barley  was  from  time  to  time  purchased 
for  cash,  in  accordance  with  the  regular  course  of  business,  and 
on  the  faith  thereof  continued  to  pay  sums  of  money  into  the 
banks  for  the  purpose  of  paying  for  such  barley,  which  they  be- 
lieved were  so  applied.  F.  subsequently  absconded,  leaving  upon 
his  premises  barley  to  the  value  of  about  £22,000,  and  malt  to  the 
vilue  of  about  £35,000,  upon  part  of  which  duty  had  been  paid 
by  the  defendants.  The  value  of  such  malt  and  barley  was  less 
than  the  amount  drawn  from  the  banks  and  misappropriated  by 
F.  He  absconded,  and  thereby  committed  an  act  of  bankruptcy. 
Between  the  time  of  F.'s  absconding  and  the  time  when  lie  was 
adjudged  a  bankrupt,  the  defendants  seized  the  barley  and  the 
malt  left  on  his  premises.  The  plaintiff,  trustee  in  F.'s  l)ank- 
ruptcy,  sued  the  defendants  for  the  value  of  the  same.  Ifold,  by 
the  Queen's  Bench  Division,  that  the  plaintiff  could  not  recover, 
on  the  ground  that  iihc  relation  between  the  defendants  and  F. 
was  that  of  principals  and  agent,  and  that  the  property  in  the  bar- 
ley and  the  malt  was  not  in  the  order  and  disposition  of  F.  as  the 
reputed  owner  thereof,  it  being  notorious  that  "  malting  ajrents " 
are  in  many  instances  not  the  owners  of  the  barley  and  malt  on 
their  malting  premises ;  and  also  on  the  further  ground  that  the 


PART  VIII.] 


AGENCY. 


547 


moneys  advanced  by  the  defendants  to  provide  for  the  purchase 
of  the  barley  were  impressed  with  a  trust ;  that  even  if  the  bar- 
Icy  and  the  malt  left  on  the  premises  of  F.  were  not  bought  in  ac- 
cordance with  the  authority  fj;iven  to  him,  and  the  legal  property 
in  the  same  was  not  vested  in  the  defendants,  but  in  F.,  neverthe- 
less F.  was  a  trustee  for  the  defendants  to  the  extent  of  the  sums 
advanced  by  them,  of  such  barley  and  malt,  the  same  being  either 
the  product  of  the  trust-moneys,  or  in  substitution  for  the  barley 
in  payment  for  which  F.  ought  to  have  applied  such  trUst-moneys ; 
and  F.  could  not  have  set  up  his  own  breach  of  trust  or  have  been 
heard  to  allege  that  the  barley  was  bought  otlierwiso  than  ac<^ord- 
ing  to  the  authority  given  to  him  by  the  defendants  ;  and  that  the 
plaintiff,  as  F.'s  trustee  in  banki  .;ptcy,  could  not  in  this  respect 
stand  in  a  better  position  than  F.  himself.^ 


1  Harris  v.  Truman,  7  Q.  B.  Div.  340. 
Ou  appeal  to  tliu  Court  of  Appeal,  9  Q.  B. 
Div.  264,  from  tlie  Queen's  Bench  Division, 
thu  jiuigment  of  tliB  court  below  was  sus- 
tained, the  twc  {.oints  involved  in  the  case 
k'iiig  thus  disiH)sed  of  by  Lord  Coleri'lfje, 
CI.,  who  says:  "The  judfjment  of  the 
court  below  is  founded  mainly  on  two 
grounds.  The  first  ground  is  of  this  na- 
ture, —  When  large  amounts  of  money  are 
intrusteii  to  a  man  to  buy  goods  and  to 
carry  ''ii  a  business,  he  becomes  a  trustee 
lor  the  person  to  whom  the  mone;.'  be- 
longs, and  the  proceeds  of  the  money  are 
affci'ted  with  a  trust.  This  is  an  old  and 
wi'll-established  doctrine  in  eijuity  :  it  ap- 
]ili('s  where  the  relation  of  principal  and 
agent,  in  the  ordinary  sens"  of  the  words 
(iocs  not  exist.  Acconling  to  this  doc- 
trine, where  a  con!idenc(!  is  created  be- 
tween two  persons,  and  wliere  the  one 
receives  the  nioney  on  the  faith  that  he 
will  do  a  certain  thing,  and  leads  the 
other  who  has  given  the  money  tn  under- 
stand that  the  thing  has  been  done,  as 
Itftwi'i'n  these  two  peisons  it  is  con.sidered 
ill  "ipiity  to  have  been  done.  Therefore 
the  person  receiving  the  money  is  bound 
to  hold  what  he  gets  for  the  benelit  of  the 
person  giving  the  money.  I  think  that 
this  ground  is  i{uito  right.  I  think  that 
the  si'iond  ground  of  tlie  jutlgment  of  the 
Queen's  llench  Division  is  right  also.  A 
person  placed  in  a  fiduciary  relati<m  witli 
a'  other  may  have  dealings  of  his  own,  and 
may  mix  up  his  own  dealings  witli  the 
Jealiiigs  on  nehalf  of  his  cestui  que  trust  ; 
hut  it  liMs  been  held  in  courts  of  emiity 
that  when  a  fiducinry  relation  has  oeen 
created  in  respect  of  a  fund  which  has 
heeii  misapplied,  and  when  it  cannot  Ix; 
*hown  what  portion  of  the  proceeds  of 
the  fund  18  really  subject  to  the  trust,  the 
trust  shall  be  eonsidercil  to  be  attached 
to  the  whole  of  the  proceeds,  and  it  shall 


not  lie  in  the  month  of  the  trustee  to  say 
tiiat  any  jiortion  of  those  proceeds  is  not 
uU'ectcd  with  the  trust.  The  same  rule 
is  applied  wiiere,  by  a  long  course  of  deal- 
ing and  by  constant  representation,  a  jht- 
8011  intrusted  with  moiioy  is  lultilling  for 
the  benetit  of  his  employer  the  duties 
which  have  been  cast  upon  him  by  his 
employment.  In  a  ca.se  of  this  desi'rip- 
ticn  the  p.'rson  employed  is  estopped  from 
setting  up  the  real  state  of  niiuters.  be- 
cause ills  employer  has  dealt  with  him  on 
the  faith  of  his  repie.sent.it ion  that  an- 
other .state  of  things  existed.  These  are 
the  grounds  ui>on  which  the  judges  of  the 
Queen's  Bench  Division  have  held  that  the 
defendants  are  entitled  to  su'ceed.  As 
the  agent  could  not  have  deni(!d  the  fidu- 
ciary obligation,  and  would  have  been 
estopjM'd  from  setting  up  the  facts  as 
they  actually  existed,  his  trustee  in 
bankruptcy  can  be  in  no  better  position 
than  himself." 

The  trustee  in  bankruptcy  or  executor, 
who  derives  the  property  by  bankruptcy 
or  througl)  death,  can  be  in  no  better  plight 
than  the  person  he  represents  would  have 
been,  and  holds  it  when  it  comes  to  his 
hands  in  trust  for  and  a|<|ilieal)lc  to  the 
same  purposes  as  the  person  he  reore.sents 
held  it  for.  Tavlor  t-.  I'lumer,  3  M.  k  S. 
.'■.(52  ;  Oodfrey  v.  Furzo,  3  P.  Wm.s.  18t» ; 
Thnmpson  v.  Giles,  2  B.  k  V.  422  i  Frith 
r.  Cartland,  2  H.  &  M.  417;  In  re  Hal- 
letfs  Kstate,  13  ("h.  Div.  6y6,  707.  If  an 
agent  or  trustee  mixes  trust  iiroiierty  with 
his  own  so  that  he  is  unable  to  distinguish 
which  is  his  own,  the  whole  will  be  treated 
as  trust  pro{)oity,  subject  to  any  eijuitable 
claim  which  the  agent  or  trustee  may  be 
able  to  establish.  See  Spcncc  i:  I'itioii 
Murine  Ins.  Co.,  L.  11.  3  C.  P.  427,  437, 
In.  re  Hallett's  Estate,  13  Ch.  Div.  719; 
Pennell  r.  Deffell,  4  De  U.  M.  &  0.  372. 


I    :  1,  . 


^')| 


!    t;  1 


(fi 


548 


COMMENTARIES  ON  SALES. 


[book  II. 


The  mere  fact  of  filing  an  affidavit  of  proof  against  the  estate 
of  an  insolvent  agent  to  an  undiscovered  principal,  after  that  un- 
discovered principal  is  known  to  the  creditor,  is  not  a  conclu- 
sive election  by  the  creditor  to  treat  the  agent  as  his  debtor.^ 

In  Curtis  v.  Williamson,^  B.  purchased  certain  goods  of  the 
plaintiffs  ;  B.  being  the  agents  of  the  defendants,  his  undisclosed 
principals,  B.  became  insolvent,  and  the  plaintiffs  then  became 
awane  that  the  defendants  were  principals.  With  this  knowlodge, 
the  plaintiffs'  clerk  sent  an  affidavit  of  proof  of  the  debt  duo  to 
them  against  the  estate  of  B.,  whose  affairs  were  being  liquidated 
by  arrangement.  The  plaintiffs  endeavored  to  prevent  tlio  affi- 
davit of  proof  from  being  filed,  but  were  unsuccessful.  The  jilain- 
tiffs  having  brought  this  action,  the  defendants  pleaded  never 
indebted.  At  the  trial  before  Quain,  J.,  a  verdict  was  entered  for 
the  plaintiffs  ;  leave  being  reserved  to  the  defendants  to  move  to 
enter  a  nonsuit.  Tlie  court  were  of  the  opinion  that  it  would  be 
going  much  too  far  to  hold  that  all  that  was  done  in  this  case  by 
the  plaintiffs  was  in  point  of  law  sufficient  to  constitute  a  binding 
election  to  deal  with  the  agent  as  alone  liable,  and  to  abandon  all 
right  to  take  proceedings  against  his  principals ;  that  what  had 
taken  place  might,  in  an  appropriate  case,  constitute  witli  other 
facts  some  evidence  of  election  to  be  submitted  to  a  jury;  but  that 
what  had  taken  place  could  not  be  regarded  in  itself  as  a  legal 
bar  to  proceedings  against  the  defendants.  The  verdict,  accord- 
ingly, was  sustained.* 


»  Curtis  V.  Williamson,  L.  B.  10  Q.  B. 
67. 

*  In  delivering  fmlgnient,  Quain,  J., 
said:  "There  can  oe  no  doubt  that,  in 
the  absence  of  any  alteration  of  the  ac- 
count to  the  prejudice  of  the  prin(-ipals, 
the  plaintitTs,  on  discovering  that  H.  was 
merely  an  agent  for  the  defendants,  had  a 
right  within  a  reasonable  time  (Sniethurst 
V.  Mitchell,  1  E.  &  K.  622)  to  elect  to 
proceed  against  the  defendants  (Thonip- 
Hon  i".  Daven|K)rt,  9  B.  &  ('.  78,  8H) ;  un- 
less in  the  mean  time,  with  full  knowledge 
as  to  who  were  the  principals,  and  with 
the  (Kiwer  of  clioosing  between  them  and 
the  agent  (Addison  v.  Gandaseiiui,  4 
Taunt.  574  ;  I'aterson  v  '"•'.ndaspqui,  15 
£ast,  62),  they  had  distil,  tly  and  un- 
questionably elected  to  treat  the  agent 
alone  as  their  debtor. "  Curtis  v.  Wil- 
liamson, L.  K.  ID  Q.  n.  59.  See  Colder 
V.  Uobcll,  I..  I{.  6  C.  P.  486  ;  Priestly  v. 
Fernie,  3  II.  &  C.  !»77.  In  Thompson  v. 
Daven|)ort,  9  B.  &  C.  78,  86,  Lord  Ten- 
terden  says:  "I  take  it  to  be  a  general 
rule  that,  if  a  person  sells  goods  suppos- 
ing at  the  time  of  the  contract  he  is  deal- 


ing with  a  principal,  b;  terwanls  dis- 
covers that  the  person  with  whom  In;  has 
been  dealing  is  not  the  principal  in  the 
transaction,  but  ajjent  for  a  third  ihtsoii, 
though  he  may  in  the  mean  tiiin'  have 
debited  the  agent  with  it,  he  may  afti-r- 
wards  recover  the  amount  from  the  real 
principal;  subject,  however,  to  tliisijiiali- 
tication,  that  the  state  of  the  ai'i'oiiiit  he- 
tween  the  principal  and  the  aiji'tit  is  not 
altereil  to  tiio  prejudice  of  tli''  iiriiiii|Kil. 
On  t\w  other  hand,  if  at  the  tim^  of  tho 
sale  the  seller  knows  not  only  that  tli<> 
person  who  is  nominally  deal  in:,'  with  him 
IS  not  principal  but  ng-nt,  and  also  knows 
who  the  principal  really  is,  and,  notwith- 
standing all  this  knowledge,  clioosis  to 
make  tiie  agent  his  debtor,  dealiii'.^  with 
him  and  him  alone,  then,  accorilinu  to  the 
cases  of  Addison  v.  Oanilnseiiui  1 1  Tiiiiiit 
674),  and  Paterson  v.  Gandaseipii  (l.'i  K;i^t. 
62),  the  stdler  cannot  afterwaiiN.  on  th- 
failure  of  the  agent,  turn  round  aii'i  rhurfi: 
the  principal,  having  once  made  liis  ilec- 
tion  at  the  time  when  he  had  tin'  powr 
of  choosing  lietwcen  the  one  ami  the 
other."     See  .Smyth  v.  Anderson,  7  C.  B 


PART  VIII.] 


AOENCT. 


549 


The  case  of  Hollins  v.  Fowler*  is  an  interesting  and  impor- 
tant one,  the  careful  study  of  which  cannot  but  be  instructive  to 
the  student  of  law.  It  is  an  appeal  to  the  House  of  Lords  from 
the  Exchequer  Chamber,  affirming  the  judgment  of  the  Queen's 
Bench.  It  is  interesting  in  more  respects  than  one.  The  report- 
er's first  head-note  to  the  case  is,  as  a  proposition  of  law,  not  a 
little  startling.  It  is  as  follows  :  "  Any  person  who,  however  mno- 
ccntly,  obtains  possession  of  the  goods  of  a  person  who  has  been 
fraudulently  deprived  of  them,  and  disposes  of  them,  whether  for 
his  own  benefit  or  that  of  any  other  person,  is  guilty  of  a  conver- 
sion." This  language  is  found  in  the  judgment  of  Lord  Chelms- 
ford alone,  and  nothing  at  all  equivalent  to  it  is  found  in  the 
judgments  of  either  of  the  other  members  of  the  House,  nor  in  the 
opinions  of  the  judges  who  were  called  in  for  consultation.  It 
contains  two  very  doubtful  propositions,  viz.:  first,  as  to  whether 
a  bond  fide  purchaser  of  goods  obtained  fraudulently  from  the 
owner  is  necessarily  guilty  of  a  conversion.  Entirely  independent 
of  the  question  of  sale  in  market  overt,  it  is  quite  clear  that  if  A. 
sell  goods  to  B.,  —  not  to  C.  pretending  that  he  is  B.,  as  in  Hard- 
man  V.  Booth,^  and  other  cases  ;  but  bond  fide  sells  to  B.,  —  but, 
through  the  fraud  of  B.  in  making  the  purchase,  the  sale  is  void- 
able at  the  election  of  A. ;  if  C,  without  knowledge  of  the  fraud, 
purchase  the  goods  from  B.  before  A.  has  avoided  the  sale,  it  is 
quite  clear  that  the  property  passes  to  C,  and  that,  though  he 
dispose  of  the  goods  "  for  his  own  benefit,"  he  is  not  "  guilty  of  a 
conversion."  *    As  far,  therefore,  as  Lord  Chelmsford's  proposi- 


21 ;  Heald  v.  Kenworthj',  10  Ex.  739 ; 
Thompson  v.  Davenport,  9  B.  &  C.  78. 
In  Priestly  v.  Fernie,  3  H.  &  C.  982,  the 
following  limitation  is  named  hy  Bram- 
well,  H. :  "  If  this  were  an  ordinary  ease 
of  principal  and  agent,  wiiere  the  agent, 
having  made  a  contract  in  his  own  name, 
has  Ix'i-n  sued  on  to  judgment,  there  can 
be  IK)  (linit)t  that  no  second  action  would 
be  maintainable  against  the  principal. 
Till'  very  expression  that  where  a  contract 
is  so  m;ido  the  contractee  has  an  rhcUon 
to  sue  agent  or  principal,  supposes  he  can 
only  sue  one  of  them  ;  that  is  to  say,  sue 
to  jiulgment.  For  it  may  be  that  au  ac- 
tion against  one  might  be  discontinued, 
and  fresh  proceedings  bo  well  taken 
against  the  other.  Further,  there  ia 
•buiulance  of  authority  to  show  that 
»liere  tiie  situation  of  the  principal  is 
altered  by  dealings  with  the  agent  as 
principal,  the  former  is  no  longer  subject 
to  an  action."  See  Morgan  ».  (.'onchn;in, 
14  C.  B.  100  ;  Bottomley  v.  Nuttall,  5 
C.  B.  X.  8.  122 ;  Stnvth  r.  Anderson,  7 
C.  B.  21;  Leggat  v.  Ueed,  1  C.  &  P.  16 ; 


Edwards  v.  Smith,  12  J.  B.  Moore,  59. 
See  ;)o,«^  note  1  to  j).  fttJl. 

»  L.  R.  7  II.  L.  757. 

«  Ih.  p.  71I.5. 

»  1  II.  &  C.  803. 

*  A  fraudulent  sale  is  voidable  only, 
and  the  projierty  vests  in  the  fraudulent 
vendee  till  the  vendor  d.jcs  some  act  to 
disattirm  the  transaetion,  and  it  is  too 
late  to  do  so  when  the  vendee  has  trans- 
ferred tiie  goods  to  an  innocent  purcha.ser. 
Load  V.  (Jreen,  \:t  M.  &  W.  216;  White 
V.  (Janlen,  10  V.  H.  919;  Stevenson  v. 
Newidiam,  13  C.  B.  303;  Parker  v.  Pat- 
rick, .5  T.  1{.  175.  It  is  essential,  how- 
ever, for  the  ojiemtion  of  tliis  doctrine, 
that  there  shjuld  have  l)een  a  contract  of 
sale  by  means  of  which  the  property  was 
obtained  from  the  owner,  for  if  the  goods 
were  (.Dtained  by  a  mere  fraud  without 
any  contract  to  supjiort  the  transfer  of 
the  iM-operty,  there  was  no  title  in  tlie 
frauauleut  transferee  which  he  could 
transfer  to  a  third  party.  Kingsford  v. 
Merry,  1  H.  &  N.  603,  overruling  8.  c. 
11   Ex.  677;   Peace  v.  Glouhec,   3  Moo. 


i'    ■    ( 


[.if 


.«!• 


m 


I 


Nf 


n 


i' 
w 


550 


COMMENTARIES  ON  SALES. 


[book  II. 


tion  ie  a  controversion  of  this,  —  and  it  requires  a  good  deal  of 
hypercriticism  not  to  make  it  so,  —  it  is  much  too  broadly  stated. 
Mr.  Justice  Blackburn's  somewhat  analogous  statement,^  "  If  there 
has  been  what  amounts  in  law  to  a  conversion  of  the  plaintiffs' 
goods  by  any  one,  however  innocent,  that  person  must  pay  the 
value  of  the  goods  to  the  real  owners,  tl'o  plaintiffs,"  is  a  much 
safer  statement. 

The  latter  part  of  the  clause  quoted  from  Lord  Chelmsford's 
judgment,  that  such  a  disposition,  "  whether  for  his  own  benefit 
^r  that  of  any  other  person,"  makes  the  party  "  guilty  of  a  con- 
version," 2  is,  also,  open  to  grave  question.     A  proposition  so 


P.  C.  N.  s.  556;  Hardinan  v.  Booth,  1 
H.  k  C.  803;  Gurney  v.  Ik-hreml,  a  El. 
&  lil.  622  ;  White  v.  G&nlm,  10  C.  B. 
919  ;  I'aikL-r  v.  Patrick,  .5  T.  H.  175; 
Stevenson  v.  Newman,  3  Cauip.  i)2;  Bar- 
row V.  Coles,  13  C.  B.  285,  302;  Patten 
V.  Thompson,  5  M.  &  S.  350;  In  re  We.st- 
zintiius,  5  B.  k  Ad.  817;  Dyer  v.  Pater- 
son,  3  B.  &  C.  38;  Load  v.  Green,  15  M. 

6  W.  219;  Wright  v.  Lawes,  4  Esp.  82; 
Sheppard  v.  Slioolbred,  Car.  &  M.  61.  lu 
this  last-named  case,  i^ord  Abiu}?er  said  ; 
•'  The  case  propfised  by  the  plaintiffs  is, 
that  where  the  g'  ods  are  fraudulently  ob- 
tained and  sold,  no  property  iiasses  to  the 
vendee,  and  such  is  undoubtedly  the  fact  ; 
but  Sir  T.  Plumer's  Case  (3  M.  &  S.  562) 
shows,  that  when  the  orij^inal  owner  con- 
sents to  the  transfer,  that  etfect  does  not 
follow.  If  ^^e  goods  in  this  case  were 
obtained  by  fraud,  yet,  if  the  defendants 
were  not  ])rivy  to  that  fraud,  I  am  of 
opinion  that  they  are  not  liable  in  this 
action."  Where  a  sale  of  goods  is  pro- 
cured by  fraud,  the  sale  is  not  void,  but 
voidable  by  the  vendor,  and  until  it  is  so 
avoided,  the  vendee  may  f.ive  a  jterfect 
title  to  a  boHil  fide  p\ir(:haser  without 
notice  of  the  fraud.  Howley  v.  Bigclow, 
13  Wend.  570;  Williams  v.  Gi'.".-n,  6 
Oratt.  268;  Thompson  v.  Lee,  3  W,  k  S. 
479.  See  Robinson  v.  Dauchy,  3  Barb. 
20;  Jackson  v.  Summerville,  13  Pa.  8t. 
359,  where,  in  the  one  case,  the  purchase, 
from  the  fraudulent  holder,  was  not  Made 
bondfidc,  and,  in  the  other  case,  -ne  pur- 
chase-money had  not  been  paid  to  the 
fraudulent  seller.  See,  further,  Ilimnna 
V.  Burton,  20  L.  J.  Zk.  342 ;  Poweil  v. 
Hoyland,  6  Ex.  67. 

»  lb.  at  p.  76  i. 

"  In  this  <Mse(Hollinso.  Fowler,  L.  R. 

7  H.  L.  766),  Blackburn,  J.,  says:  "On 
]»rinci;/le,  one  who  deals  with  goods  at 
the  rcMiuest  of  the  jwrson  who  has  the 
•"..jtual  (iustotly  of  them,  in  the  bond  fide 
belief  that  the  custodier  is  the  true  owner, 
or  has  the  authority  of  the  true  owner, 


should  be  excused  for  what  he  docs  if  tlio 
act  is  of  such  a  nature  as  would  1x3  uxcu.sej 
if  don     by  the  authority  of  the  piison 
in  jWrtftession,  if  he  was  a  finder  of  tlu> 
goods,  or  intrusted  with  their  authoiity." 
Brett,  J.,  in  the  Excheiiuer  Chamber,  thus 
states  the  law  :  "  Wliere  one,  with  intent 
to  make  them  his  own,  actually  tak'^s  us 
his  own,  or  actually  destroys  or  actually 
uses  as  a  man  uses  his  ')wn,  the  gu(»ls  of 
another,   it  is  not  ditiicult  to  dctenuii.ii 
that  he  has  done  an  act  iiiteiitiunaliy  iu. 
consistent  with  the  dominion  of  any  one 
but  himself  as  real  owner  of  the  ;;o()(k 
and  has  been  guilty  of  a  wrongful  conver- 
sion of  the  goods.     It  is  ea.sy  to  uni'..,i- 
stand  how  it  was  held  that  in  such  ca.^'s 
the   innocence  of   the  defendant,  in  the 
sense   of  liis  not  knowing  who  the  real 
owner  was,  or  that  the  person  from  whom 
he  immediately  took  the  goods  was  rot  tiie 
real  owner,  was  immaterial ;  the  di'fi'niknt 
has  taken  the  goods  with  intent  that  tiiey 
should  be  his  owh.  or  has  used  tlu'ni  u.s  if 
they  were  his  own.    Such  acts  must  neces- 
sarily be  contrary  to  the  rights  of  a  real 
owner  who  has  not  authorized  him  so  to 
take  or  so  to  use.     So  if  one  be  in  po.sses- 
sion  of  goods  undei  thf;  belief  that  he  has 
a  right  to  mair.cain  possession,  and  thi'V 
be  demanded  of  hiiu  and  he  aljsolntely 
refuse  to  deliver  them,  he  has  intention- 
ally exercised  over  them  a  dominion  in- 
tentionally inconsistent  with  the  alleged 
right  of  him  in    whose   name   tln-y  were 
demanded,  and  in  such  case  it  is  nut  ililR- 
celt  to   say   that   the  defendant,  if  the 
■iemand  was  made  on  behalf  of  the  real 
uwner,  has  been  guilty  of  a  wroni^fu!  eon- 
version.     But  it  is  where  one  has  ileait 
with  goods  as  if  they  were  his  own  with- 
out having  had   jmssession   of  tlnin,  or 
where  one  has  taken  gomlsinto  lii.s  jiossei- 
sion,  but  not  with  intent  that  they  siiouU 
bo  his  own,  or  without  reference  to  their 
being  the  property  of  one  jiorson  or  ot 
another,  or  having  goods  in  his  possession 
has  not  used  them  as  his  own,  ami  where 


PART  VIII.] 


AGENCY. 


551 


widely  stated  as  that  is  quite  wide  enough  to  cover  the  case  of  an 
agent  acting  in  such  disposition  for  his  principal ;  a  position  for 


110  demand  liaa  been  made  on  him  for  a 
tlelivery  of  the  cooils  to  or  on  behalf  of 
the  real  owner  whilst  they  were  in  his,  the 
defendant's,  possession,  that  the  real  ditti- 
cultics  ari.se.     A»  to  the  tirst,  I  think  it 
muy  be  rightly  snid  that  in  no  case  can  a 
iiiiiu  be  guilty  of  a  conversion  who  has 
uut  by  hiniseli'  or  his  ugunt  had  |H)ssi'ssiou 
of  the  goods  in  dispute.     A  man  mi^lit, 
I  apiirehend,  be  guilty  of  a  conversion, 
tiiuugh  he  had  had  possession  only  by  his 
n(!i'iit  ;  as  if  he  hud  authorized  an  agent 
to  tiike  goods  for  him,  or  to  use  or  d«-  '  ■   y 
theui,  and  the  agent  had  obeyed  his  . .  a- 
mands  ;  but  if  the  order  had  been  Liven 
and  had  not  been  obeyed,   I  appreueiid 
tlwit  the  mere  order  would  not  be  a  con- 
version.    So  if  one  enters  into  a  contract 
to  sell,  as  if  they  were  his  own,  the  goods 
of  another,  whether  the  form  of  the  con- 
tract be  such  OS  would  assume  to  pass  the 
property  at  once,  or  such  as  could  only 
pass  the  pro[)erty  on  a  subsequent  deliv- 
ery, I  apprehend  that  the  mere  fact  of 
making  such  a  contract  is  not  a  conver- 
siuii.  .  .     .On  the  whole,  I  come  to  the 
conclusion  that  a  broker  who,  acting  only 
as  such,  negotiates  a  bargain  of  jiurchase 
and  sale  and  |)asses  a  delivery  order  is  not 
tliereby  guilty  of  a  conversion,  so  as  to  be 
liable  in  an  action  of  trover;  and,  that, 
ill  this  case,  the  usjiortation,  which  we  are 
bound  to  consider,  according  to  the  leav<i 
reserved,  as  a  simple  asportation,  without 
reference  or   inte:itiou   as  to  whose  was 
the  property  in  the  goods,  is  likewise  not 
a  convei-sion."     Fowler  v.  HoUins,  L.  U. 
7  Q.  B,  62(5,  631.     And,  in  the  House  of 
Lords  :   "  1    am   still   of  opinion    that  a 
jiossession  or  detention  which  is  a  mere 
custody  or  mere  asportation  made  without 
refi-rence  to  tlie  (piestion  of  the  property 
in  chattels  is  not  a  conversion."     Hoilins 
V.  Fowler,   L.   li.  7  H.   L.  785.      Black- 
btirii,  J.,  too,  although  holding,  with  a 
good  deal  of  dilKdence,  that  the  defendant 
was  liable  for  a  conversion  ;  in  answer  to 
till'  ipiestion,  "iSupnose  that  the  defend- 
ant liiid  sent  the  delivery  order  to  M., 
who  had  hanili'd  it  to  the  railwi.y  com- 
pany, rei|ue8ting  them  by  means  of  it  to 
prrcure  the  goods  in  Liverpool,  and  carry 
tlieni  to  Stockjwrt,  and  the  railway  com- 
IKiny   had   done    so,    would  the   railway 
company  have  been  guilty  of  a  conver- 
sion?" replied;  "I  apprehend  the  com- 
ptniy  would  not,  for  merely  to  transfer 
tilt'  custody  of  goods  from  a  warehouse  at 
I.ivpr|H)ol  to  one  at  Stock  |K)rt,  is  primd 
ftiic  an  act  justifiable  in  any  one  who  has 
tlie  lawful  custody  of  the  goods  as  a  finder, 
or  bailee,  and  the  railway  company,  in 


the  case  supposed,  would  be  in  complete 
ignorance  that  more  was  done."  Ibid. 
L.  K.  7  H.  L.  767.  It  is  thus  obvious 
that  Blackburn,  J.,  no  more  than  Brett, 
J.,  and  the  other  judges  who  concurred 
with  him,  agreed  with  Lord  Chelmsford, 
or  with  the  head-note  of  the  case,  that 
"any  jierson,  who,  however  innocently, 
obtains  [H>ssession  of  the  goods  of  a  ])erson 
who  has  Ix'en  frauduh'Utly  deprived  of 
them,  and  disposes  of  them,  whether  for 
his  own  benelit  or  that  of  any  other  per- 
son, is  guilty  of  a  conversion."  This 
would  not  only  cover  the  case  of  the  rail- 
way company  put  by  Blackburn,  J.,  but 
also  the  case  of  the  miller  who  had  honestly 
ground  oats  and  delivered  the  meal  to  the 
iierson  who  brought  the  oats  to  him,  before 
lie  had  even  heard  of  the  true  owner ;  and 
the  other  cases  of  a  i)acker,  a  warehouse- 
keeper,  and  an  innkieper,  also  referred  to 
by  Blackburn,  J.  in  fact,  on  the  strict 
holding  of  the  case,  on  the  liiuling  of  the 
jury,  it  would  be  difficult  to  see  if  the 
defendant  were  correctly  held  liable  for  a 
conversion,  why  his  clerk  who  obtained 
the  cotton  on  the  delivery  order,  or  the 
carter  who  carted  it  to  the  railway,  or  the 
cotton  manufacturer's  men  "  who  assisted 
in  turning  the  cotton  into  twist,"  would 
not  all  *>•!  e(|ually  as  liable.  Against  this 
holding  is,  obviously,  another  of  the 
judges,  who,  distorting  the  finding  of  the 
jury,  held  that  the  defendant  was  liable  ; 
Mr.  Justice  Mellor,  who  says:  "If,  by 
reason  of  the  finding  of  the  jury,  I  must 
eliniinate  from  the  facts  that  the  plaintiff 
in  error  bought  the  cotton  having  at  the 
time  no  principal,  and  substituti-  for  it  a 
statement  that  he  bought  the  cotton  aa 
agent  for  M.  &  Co.,  and  merely  j'assed  the 
delivery  order  and  tiaiisiiortetl  the  cotton 
as  their  agent,  in  the  usual  C(uirse  of  his 
business  as  broker,  then,  1  think,  that  the 
defendant  would  not  Im>  liable  in  this 
action,  and  the  remedy  of  the  plaintitfa 
would  be  against  M.  &  Co.,  who  actually 
converted  the  cotton  by  .spinning  it  into 
yarn  and  selling  it."  11'.,  p.  77.'>.  And 
yet  the  leave  reserved,  pursuant  to  the 
finding  of  the  jury,  assumed  that  the  •' 
fendant  had  "acted  throughout  honestly, 
in  the  oiiliiiary  course  of  business,  having 
bought  and  paiil  for  the  cotton  oiilj/  aa 
agent  fir  M.  A  Co."  and  hud  "dm  II  iitth 
thfi  goods  onhi  as  agfnl  to  furvaid  than." 
Fowler  V.  Hoilins,  L.  K.  7  Q.  B.  620, 
note(l). 

The  cases  in  refutation  of  the  second 
portion  of  Lonl  Chelmsford's  projiosition 
are  quite  numerous.  In  Mires  v.  Solebay, 
2  Mod.  242,  it  was  held  that  trover  will 


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,  ■  ■ 

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■  ■• 

552 


COMMENIABIES  ON  SALES. 


[book  II. 


which  Hollins  v.  Fowler*  is  very  far  from  being  an  authority. 
True,  among  the  opinions  of  the  large  number  of  members  of  the 
House,  and  judges  assisting,  there  were  some  opinions  that  would 


not  lie  a^ainat  a  servant  for  an  unlawful 
intermeddling  with  the  goods  of  any  jierson 
by  the  command  of  his  master  unless  suuh 
intermeddling  amounts  to  a  trespass ;  and 
then  an  action  of  tresiwiss  will  lie  against 
the  servant,  though  done  by  the  com- 
mand of  the  master.  Following  this  ease, 
in  Alexander  v.  Southey,  5  B.  &  Aid.  247, 
where  goods,  the  proi)erty  of  the  iilaiiititf, 
had  been,  by  the  servants  of  an  iusuraneo 
company,  carried  to  a  warehouse,  of  which 
the  defendant,  a  servant  of  the  company, 
kept  the  key,  and  tlie  defendant  on  l>eing 
applied  to  by  the  plaintilf  to  deliver  them 
up  refused  to  do  so  without  an  order  from 
the  company,  it  was  held  tliat  this  was 
not  such  a  refusal  as  amounted  to  a  eon- 
vereion  of  the  goods  by  the  defendant. 
So,  by  Coles  v.  Wright,  4  Taunt.  108,  a 
servant  delivering  goods  by  his  master's 
order  could  not  bo  said  to  have  converted 
those  goods  ivs  against  the  assignee  in 
bankruptcy  of  his  master.  In  (ireenway 
i;.  Fisher,  1  C.  &  P.  190,  it  was  held  that 
a  packer  having  in  the  exercise  of  hi^ 
business  shipped  g)ods  under  the  orders 
of  a  pereon  who  employed  him  for  that 
purpose,  was  not  guiltv  of  a  conversion. 
In  Lee  V.  Bayes,  18  C.  B.  609,  Willes, 
J.,  refers  to  tiie  railway  case  named  by 
Blackburn,  J.,  where  trover  was  brought 
against  the  Southeastern  Railway  Com- 
pany for  certain  timber,  by  the  assignees 
of  a  bankrupt,  and  the  Court  of  Flx- 
chequer  expressed  a  strong  opinion  that 
the  action  wonld  not  lie,  the  timber  hav- 
ing been  handed  over  by  the  company, 
pursuant  to  the  directions  of  the  bank- 


rupt, before  they  had  any  notice  of  the 
title  of  the  assignees.  In  lloss  v.  John- 
son, 5  Burr.  *8'25,  it  was  held  that  though 
there  might  Ite  an  action  on  the  case 
against  a  wharfinger  for  goods  which  had 
been  stolen  from  him,  yet  trover  would 
not  lie  against  him.  Lord  Mansfield  said: 
"  In  order  to  maintain  trover  there  nuist 
be  an  injiirioua  conversion.  This  is  not  to 
bo  esteemed  a  refusal  to  deliver  the  goods. " 
The  principle  laid  down  in  Fouldes  v. 
Willoughby,  8  M.  &  W.  540,  is  that  a 
mer?  wrongful  asportation  does  not  amount 
to  a  co.iversion  unless  the  taking  or  leten- 
tion  of  the  chattel  is  with  intent  to  con- 
vert it  to  the  taker's  own  use  or  that  of 
some  third  person,  or  unless  the  act  done 
has  the  effect  of  destroying  or  changing 
the  quality  of  the  chattel.  In  this  case 
the  master  of  a  ferry-boat  was  held  not 
liable  in  trover  for  unlawfully  setting  a 
passenger's  horses  ashore,  although  the 
owner  never  recovered  them.    In  Drake 


0.  Shorter,  4  Esp.  165,  where  the  defend- 
ant took  a  boat  belonging  to  the  plaintilf 
for  the  purpose  of  extinguishing  a  tire, 
and  the  boat  was  sunk  and   lost,   Liird 
EUenborough  said :   "  Th.it  what  might 
be  a  tort  under  one  circumstance  might  if 
done  under  others  assume  a  different  ap- 
pearance.   As,  for  example,  if  the  thinj;  for 
which  the  action  was  brought,  and  which 
had  been  lost,  was  taken  to  do  a  work  of 
charity,  or  to  do  a  kindness  to  the  party 
who  owned  it,  and  without  any  intention 
of  injuring  it  or  of  converting  it  to  his 
own  use,  if  under  any  of  these  circum- 
stances any  misfortune   hajipened  to  the 
thing  it  could  not  be  deemed  au  iIU'),'al 
conversion ;  but  as  it  would  be  a  ju:«tiK- 
cation  in  an  action  of  trcs])as8  it  would  be 
a  good  answer  to  an  action  of  trover." 
It  is  not  every  wrongful  act  depriving  a 
party  of  the  possession  of  his  goods  that 
amounts  to  a  conversion.    Hence,  in  Tlioro- 
good  V.  liobinson,  6  Q.  B.  769,  where  plain- 
titt's  goods  and   servants  were  on   land 
which  defendant  recovered  in  ejectment, 
and  defendant  on  entering  under  the  writ 
of  possession   turned   plaiutitf's  servants 
otr  the  land,  and  would  not  let  them  re- 
main  for  the   purpose   of   removing  the 
goo<l8,  it  was  helil  that  the  jury  nii<;ht 
hud  that  there  was  no  conversion.    Of 
the  conversion  evidence  may  arise  from  a 
tortious  taking,  from  a  refusal  to  (kiiver 
upon  demand,  or  from  use  negativinj;  the 
plaintiifs  right.     Any  act  in  exclusion  or 
defiance  of  the  plaintiff's  right,  any  as- 
sumption of  property  and  of  the  right  of 
disposition,  any  intermeddling  indicating 
a  claim  of  ownership,  any  assertion  of  the 
control  which  belongs  to  the  owner,  may 
furnish  evidence  of  the  conversion.    But 
an  interference  with  a  chattel  under  cir- 
cum8tanc>>s  whi^ '.  show  the  owner's  right 
to  he  undisputed,  even  with  injurious  con- 
sequences to  the  owner,  does  not  amount 
to  a  conversion  ;  as  where  goods  an?  thrown 
overboard  to  save  a  ship,  or  where  a  work 
of  charity  or  kindness  to  the  owner  is 
intended.     Nelson  v.  Whetmore,  1  Kich. 
(S.  C.)  318,  322;    Hoover  v.  Ale:;nmler, 
1  Bail.  510;  Quay  ».  McNinch,  2  Mill,  (l-a.) 
78  ;  Bell  v.  Lakin,  1  McMul,  364.    See, 
further,  Needham   v.  Bawbone,  6  Q.  B. 
771,  note  b  ;  Simmons  v.  Lillystone,  8  Ex. 
431;  Heald  v.  Carey,  11  C.   B.  977;  Lan- 
cashire Wagon  Co.  v.  Fitzhugh,  6  H.  &  N. 
602 ;  Vaughan  v.  Watt,  6  M.  &  W.  492; 
Isaac  r.  Clark,   2  Bulst,  312;  (!rein  t>. 
Dunn,  3  Camp.  215,  n. ;  Bushncll  i'.  Mil- 
ler, 1  Str.  128. 

1  L.  R.  7  11.  L.  767. 


PABT  VIII.] 


AGENCY. 


553 


go  that  far,  yet  the  general  consensus  of  opinion  wds  the  other  way, 
and  the  conclusion  as  to  the  defendant's  liability  in  the  case  was 
only  reached  on  the  assumption  that,  in  the  transaction,  he  bought 
the  goods  and  disposed  of  them,  not  in  his  capacity  of  agent  for 
another,  but  as  a  principal.  We  think,  therefore,  that  as  au  ana- 
lytical note  of  what  the  case  really  holds,  it  is,  on  both  points,  too 
broadly  stated,  even  though  it  is  a  literal  quotation  of  language  used 
by  out  of  the  members  of  the  House  who  took  part  in  the  case. 

The  c  ise  otherwise,  though  decided  by  England's  ultimate  court 
of  appeal,  the  House  of  Lords,  is  fairly  open  to  criticism,  and  the 
correctness  of  the  decision  is  extremely  doubtful.  The  respond- 
ents (plaintiffs  below)  *  Fowler  &  Co.,  of  Liverpool,  were  owners 
of  cotton.  B.,  pretending  to  be  the  agent  of  S.,  got  possession  of 
the  cotton  under  a  fraudulent  purchase,  as  a  saie  to  S.,  and  offered 
it  for  sale  to  the  appellants,  brokers,  on  Dec.  23,  at  Liverpool ; 
who  purchased  it.  The  appellants  had  on  that  morning  received 
a  message  from  M.  &  Co.,  cotton  8{)inners  (for  whom  they 
were  in  the  habit  of  purchasing  cotton),  stating  that  M.  would  bo 
in  Liverpool  to  purchase  coiton  through  the  appellants,  who  had 
bought  the  cotton  from  B.,  believing  it  to  be  of  the  sort  which 
M.  «fe  Co.  would  require.  On  examining  the  cotton,  M.  agreed  to 
take  it.  The  appellants  were  in  the  habit  of  thus  buying  cotton 
in  the  belief  that  their  customers  would  take  it.  If  any  particu- 
lar customer  did  not  take  to  the  cotton  thus  speculatively  pur- 
chased for  him,  the  appellants  disposed  of  it  to  some  other  cis- 
tonier.  On  the  latter  part  of  Dec.  23,  B.  received  a  delivery  order 
from  the  appellants,  as  follows :  "  Please  deliver  the  bearer  .  ,  . 
cotton,  etc.,  bought  this  day  for  M.  <fc  Co."  The  cotton  was  deliv- 
ered on  the  following  morning  to  the  appellants,  by  whom  it  was 
at  once  forwarded  to  M,  &  Co.  B.  received  the  price  of  the  cot- 
ton from  the  appellants,  which  was  repaid  by  M.  &  Co.,  together 
with  a  sum  for  commission  and  porterage,  the  ajipellants  not  ob- 
taining a  profit  on  the  cotton,  but  merely  receiving  a  brokcr'.n  com- 
mission on  its  purchase.  Fowler  &  Co.,  not  having  received  pay- 
ment for  the  cotton  at  the  stipulated  time  for  payment,  ap])lied  to 
S.,  and  then  learnt  that  he  had  never  employed  B.  to  purchase  the 
cotton  for  him.  Application  was  then  made  to  the  appellants  for 
the  cotton,  who  replied  :  "  The  cotton  was  bought  by  M.  &  Co.  for 
cash,  and  has  been  made  into  yarn  long  ago,  and  as  everything  is 
settled  up,  wc  regret  we  cannot  render  you  any  assistance."  The 
respondents.  Fowler  &  Co.,  then  bronght  an  action  of  trover  against 
the  defendants.  So  far,  the  case  is  one  of  extreme  simplicity,  and 
its  very  simplicity  is  what  led,  we  think,  to  an  incorrect  decision 

»  L.  R.  7  Q.  B.  616. 


^ 


ti  lit 


11'    ' 


i       1 


i     I 


i 


i  ■  n 


m 


r  ■ ! 


}] 


554 


COMHENTABIES  ON  SALES. 


[book  II. 


PART  VII] 


by  the  Queen's  Bench,  the  Exchequer  Chamber,  and  the  IIouss 
of  Lords,  under  the  changed  aspect  of  the  case. 

The  cause  went  to  trial  before  Justice  Willcs,  and,  under  the 
facts  as  stated,  the  verdict  and  judgment,  as  all  the  judges  in 
effect  admit,  should  have  been  for  the  plaintiffs.  As  under  the 
fraudulent  pretence  by  13.,  that  it  was  S.  who  was  buying  the  cot- 
ton, as  the  plaintiffs  had  not  sold  the  property  to  13.,  the  right  to 
the  possession  remained  in  the  plaintiffs.  As  the  cotton  had  boon 
purchased  by  the  defendants,  who  had  taken  to  the  possession  of 
it  as  owners,  and  had  re-sold  it  to  M.  &  Co.,  who  might  or  might 
not  have  bought  it,  there  was  a  clear  conversion  by  the  defend- 
ants ;  and  it  was  an  altogether  immaterial  factor  in  the  case  that 
they  usually  did  business  as  agents  and  brokers  ;  and  that,  on 
their  selling  the  cotton,  they  re-sold  it  to  parties  for  whom  they 
were  accustomed  to  purchase  cotton,  and  sold  it  to  tho.a^  simply 
at  the  price  they  had  themselves  paid  for  it,  with  an  additional 
sum  which  they  called  "  commission."  The  law  in  such  a  case  is 
entirely  too  clear  for  doubt.  But  the  difficulty  in  the  case  which 
led  to  what  seems  to  us  a  series  of  incorrect  judgments,  which  we 
do  not  think  the  ablest  conducted  courts  of  this  country  would 
follow,  thus  occurred.  When  the  facts  which  wo  have  pretty  fully 
summarized  were  proved  on  the  trial,  the  judge  left  two  questions 
to  the  jury,  namely  :  first,  whether  the  cotton  in  question  liad  l)cen 
bought  by  the  defendants  as  agents  in  the  course  of  their  business 
as  brokers  ;  and  secondly,  whetlier  they  dealt  with  the  goods  as 
agents  for  their  principals.  The  jury  answered  both  of  those 
in  the  affirmative  ;  and,  according  to  the  whole  consemus  of  opin- 
ion of  the  judges,  so  far  as  those  answers  mean  (as  we  think  it  is 
too  clear  for  question  that  they  do  moan)  that  the  defendants 
purchased  the  cotton  only  as  agents,  and  not  as  principals ;  and 
that  they  dealt  with  the  cotton  as  agents  only  for  their  principals; 
and  that,  therefore,  by  their  purchase  of  the  cotton  no  property 
vested  in  themselves,  the  jury  answered  the  quentions  ivroni/ly.  In 
accordance  with  the  answers  of  the  jury,  obviously  understood, 
as,  without  scholastic  refinement  and  judicial  perversion,  any  one 
would  understand  them,  Willes,  J.,  "  directed  the  verdict  to  be 
entered  for  the  defendants,  reserving  leave  to  the  plaintiffs  to 
move  to  enter  the  verdict  for  them."  A  rule  was  afterwards  ob- 
tained for  that  purpose  in  the  Queen's  Bench,  which  was  made 
absolute.  On  appeal  to  the  Exchequer  Chamber,  the  judges  were 
equally  divided  in  opinion.  The  case'  was  then  appealed  to  the 
House  of  Lords,  and  the  judges  were  called  in  for  consultation. 
As  we  have  shown,  and  as  was  all  around  with  scarcely  an  excep- 
tion conceded,  independent  of  the  questions  submitted  to  the  jury 


PART  VIII.] 


AGENCT. 


555 


iind  their  answers,  on  the  facts  of  the  case,  the  verdict  and 
judgment  should  have  been  for  the  plaintiffs.  An  application  was 
made  to  the  Court  of  Queen's  Bench  for  a  rule  as  for  misdirec- 
tion, or  as  for  a  verdict  against  evidence.  Had  thii>  ii  granted, 
as  it  clearly  should  have  been,  the  whole  difficulty  in  the  case  would 
have  been  avoided,  and  we  would  not  have  had  the  bad  law  which, 
as  applied  to  the  actual,  express  finding  of  the  jury  in  the  case, 
we  cannot  but  think  the  case  contains.  But  the  Court  of  Queen's 
Bench,  improperly,  we  think,  instead  of  granting  the  plaintiffs' 
application  for  a  new  trial,  disregarding,  or  rather,  distorting  the 
finding  of  the  jury,  by  which,  adopting  and  aflirming  their  an- 
swers, they  were  bound  ;  entered  the  verdict  for  the  plaintiffs. 
By  this  course  the  courts  of  appeal  were  concluded  by  the  find- 
ings of  the  jury  in  their  answers  to  the  questions  proposed  to  them ; 
und  while  even  the  House  of  Lords  were  excluded  from  disregard- 
ing the  findings  of  the  jury,  but  were  bound  by  them,  we  think 
that  their  decision  rests  on  a  complete  distortion  of  the  findings 
of  the  jury  ;  and  that,  while  independent  of  those  findings,  the 
defendants  clearly  were  liable  for  conversion,  we  do  not,  notwith- 
standing the  ultimate  holding  in  the  case  in  the  House  of  Lords, 
think  it  good  law,  that  where  parties  buy  goods  only  "  as  uf/ents 
in  the  course  of  their  business  as  brokers,'^  and  "  deal  with  the  i/oods 
only  *  as  agents  for  their  principals,^'  that  they  are  liable  in  trover 
for  conversion ;  and,  notwithstanding  the  erpress  holding  of  the 
House  of  Lords  in  the  case  that  thei/  are,  we  quite  confidently 
submit,  that  the  whole  ratio  decidendi  of  the  case  itself  is,  that 
they  are  not.  And  we  submit  further  that  their  so  expressly  hold- 
ing was  the  result  only  of  a  comjdete  and  utterly  unjustifiable 
|)erversion  of  the  distinct,  express  finding  of  the  jury  in  the  ease. 
We  think  the  differing  opinion  of  the  judges  who  advised  against 
such  holding,  the  better  one ;  and  that  the  holding  of  the  House  of 
Lords, aftirming  the  judgment  of  the  Queen's  Bench  "that  the  de- 
fendants in  effect  bouyht  as  principals,  and  would  have  been  liable 
to  B.  as  vendees,  and  having  dealt  with  the  cotton  as  if  the  prop- 
erty was  in  th  m,  by  assigning  it  to  M.  &  Co.,  thoy  were  liable  to 
the  plaintiffs  for  a  conversion  on  its  turning  out  that  no  property 
liad  passed  from  the  plaintiffs  to  B,"  while  perfectly  good  law  on 
the  facts  of  the  case,  independent  of  the  finding  of  the  jury,  is  ut- 
terly inconsistent  with  the  exi)ress  finding  of  the  jury,  that  the 
defendants  did  not  buy  the  cotton  "  as  principals,"  but  bought  it 
"  as  agents,"  and  "  dealt  with  the  goods  only  as  agents  for  their 
principals,"  But  for  the  deliberate  holding  of  the  House  of  Lords 
(to  question  which  is  often,  with  sycophants,  no  matter  how  trans- 

'  Sec  the  questions,  as  stated  by  Lord     pears  as  wo  have  here  quoted  it.    L.  R.  7 
Chehnsford,  wiiere  the  word  "only"  ap-     11.  L.  793. 


:  i  1 

.. "  ,  i 

!       t? 


i    i 


■■    I' 


'    .. .   '11! 


650 


COMMENTARIES  ON  BALES. 


[book  II. 


PABT  VIH 


parently  bad  the  holding  may  bo,  deemed  presumption  *)>  it  would 
seem  almost  a  waste  of  labor  and  space  to  insist  upon  anytliini,' 
so  palpable.  And  although  Lord  O'llagan  assented  to  the  hold- 
ing  of  his  colleagues  in  the  House,  he  did  so  (while  adniittiii'! 
that  they  were  bound  by  the  findings  of  the  jury)  on  the  jrrouiul 
that  the  jury  did  not  mean  that  the  defendants  in  their  ui;eucy 
were  not  acting  "  only  as  such,"  against  the  express  langua;,'e  as 
we  have  quoted  it  from  Lord  Chelmsford.  And  we  think  that 
the  better  opinion  of  Lord  O'Hagan  was  represented  by  bis  hesi- 
tancy in  agreeing  with  his  colleagues,  rather  than  in  his  uirreeinir 
with  them.  On  that  point  he  says  :  "  Tiie  real  dilhculty  wliicli 
embarrasses  decision  has  arisen  on  the  findings  of  the  jury,  and 
the  form  of  the  reservation  by  which,  properly  understood,  we 
are  bound  to  abide.  And  uncpiestionably,  although  that  view  d(X'8 
not  appear  to  have  been  pressed  in  the  Court  of  Queen's  Ijciich,  1 
have  felt  the  force  of  the  objection  founded  on  the  (indings  ;  and 
I  have  doubted  whether  some  of  the  Judges  in  the  Exchequer  Cham- 
ber were  not  right  in  holding  themselves  coerced  by  the  verdict  to 
differ  from  the  learned  judges  of  the  Queen's  Bench,  with  whose 
coneluaion  they  would  otherivise  have  concurred."  ^ 

And  it  must  be  borne  in  mind  that  the  House  of  Lords,  in 
holding  that  the  defendants,  who,  according  to  the  finding  of 
the  jury,  "  bought  the  cotton  in  question  as  agents  in  the  course 
of  their  business  as  brokers,"  and  "  dealt  with  the  goods  only 
AS  AGENTS  to  their  principal)*^'  *»  held  tb^t,  this  language  did  not 
mean  "  only  as  such  "  *  agents,  but  was  open  to  liiu  construc- 
tion that  they  did  not  buy  as  agents,  but  bought  as  principals; 
and  it  is  only  on  the  absurdity  that  parties  who  "  bought  only 
as  agents,"  did  not  buy  "  only  as  such  "  agents,  that  the  case  can 
be  sustained.  Notwithstanding  such  holding,  we  state  the  law 
advisedly,  from  the  case  itself,  that,  as  in  the  facts  of  the  case  it- 
self, the  defendants  bought  and  dealt  with  the  goods  as  principals, 
and  were  thus  liable  for  a  conversion  on  those  facts  ;  but,  with 
reference  only  to  the  finding  of  the  jury,  notwithstandiiiLr  the 
manner  in  which  that  was  distorted,  one  who  buys  the  goods  and 
deals  with  them  only  as  an  agent,  as  the  jury  found  the  defendants 
did,  is  not  a  principal  and  is  not  guilty  of  a  conversion,  nor  liable 
in  trover,  and  the  case  so  far  as  it  holds  contrary  to  this  is,  un- 
questionably, wrongly  decided,  according  to  the  decision  uf  the 
House  of  Lords  in  the  case  itself.** 


*  A  very  emphatic  intimation  was  made 
in  tlie  I'livy  Council  the  other  day,  in  the 
Bishop  of  Lincoln's  Case,  as  to  the  right 
of  reversing  wrong  decisions,  whether  of 
the  Privy  Councu  or  of  the  House  of 
Lords. 


»  Hollinsr.  Fowler,  L.  R.  7  H.  L.  p.  800. 

'  Ibid.,  at  p.  793. 

*  At  p.  800. 

»  Scf  Fowler  V.  Hollins,  L.  R.  7  O- 
B.  616,  at  p.  620,  where  the  terms  ol  the 
leave  reserved  assumed,  in  acconlauce  with 


PART  VIIT.] 


AOENCT. 


667 


Robinson  v.  MoUoU  *  is  another  interesting  case,  in  which  a 
similar  conflict  took  place  in  the  opinions  of  the  judges  as  churac- 
terizetl  Ilollins  v.  Fowler."  While,  however,  we  are  very  stronfjly 
uf  the  opinion,  as  we  have  shown,  that  the  latter  cumv  was  nnally 
decided  by  a  complete  perversion  of  plain  English,  and  is,  as  it 
was  decided,  of  extremely  doubtful  authority,  Robinson  v.  Mollett, 
we  think,  was  decided  with  uncjuestionable  correctness.  The  case 
was  tried  before  Bovill,  C.  J.,  when  a  verdict  was  taken  for  tlie 
plaint i IT,  subject  to  leave  leserved  to  enter  a  nonsuit.  In  the  Com- 
mon I'leas,**  the  judges  li.ninjr  equally  divided,  the  verdict  was 
sustained.  On  .appeal,  the  judges  in  the  Exchequer  Chamber* 
being  also  e(iually  divided,  the  judgment  of  the  Ccmimon  Pleas 
was  aflirmed.    On  api>eal  to  the  House  of  Lords,  the  judges  were 


till-  fiiidiiif^  of  the  jury,  that  the  defeiul- 
iiiits  bud  "acted  thruiigliout  honestly,  in 
tliL-  ordiniiry  course  of  business,  having 
bourjht  and  puid  for  the  cotton  om,y  as 
AtiKNTs  fur  Si,,  and  having  dealt  with  the 
goods  ONLY  AS  ACIENI'S  to  forward  thrni  ;  " 
and  tlie  (|uestion  wiis,  under  such  an  iis- 
Niiiued  state  of  facts,  whether  the  dflcnd- 
iints  were  nnswcrahlc  for  the  vahic  of  the 
cotton  as  having;  converted  it  to  tlieir 
own  use  ;  "  the  delciidanls  to  Ite  at  lib- 
erty to  argues  if  necessary,  that  the  sale 
by  IJayley,  under  the  circumstances,  pave 
u  good  title  to  a  bimd  fide  iiurchTscr  for 
value  without  notice."  The  rule  wiis 
moved  in  tlie  t^necn's  Bench  on  three 
grounils  :  1.  That  the  verdict  was  against 
tlie  evidence;  2.  Misdirection;  3.  On 
the  point  reserved.  The  court  refusal  tlie 
rule  on  the  Jirnl  and  secoiul  grounds.  As, 
on  principle  anil  authority,  the  case  is  not 
ar<;uable  on  the  ground  tiiat  H.,  to  wlioni 
110  projH'rty  iiad  passed,  could,  under  the 
circumstances,  give  a  good  title  to  ani>ther, 
the  ease  went  to  the  Kxchef|uer  t'hamber, 
and  to  the  House  of  Lords,  iiatnpcred  with 
the  assumption  —  the  very  basis  of  the 
leave  reserved  —  that  the  defendants  had 
"  bougiit  and  paid  for  the  cotton  onhf  as 
fiijcnts,"  and  had  "dciilt  with  the  goods 
iiiiljl  as  agents  to  fortrmd  tlirm."  And  in- 
asmuch as  the  case,  therefore,  does  on  the 
lUcts,  as  governed  by  the  terms  of  the 
leave  reserved,  decide,  that  one  who  has 
bought  and  paid  for  goods  only  as  an 
agent  for  anotlier,  and  wlio  has  dealt  with 
tlie  goocls  only  as  agent  to  forward  them, 
is  liable  in  trover  for  conversion  ;  accept- 
ing the  clear  and  express  reasoning  in  the 
case  itself  on  the  |K)int,  in  the  House  of 
I^nls,  we  think  it  is  |>alpable  that  it  is 
not,  as  an  abstract  principle,  law,  notwith- 
^itanding  tlio  holding  to  the  contrary  in 
both  the  Kxchequer  Chamber  and  in  the 
House  of  Lords,  —  that  one  who  buys  and 
pays  for  goods  only  as  an  agent  for  another, 


and  who  has  dealt  with  theii  ,„(/,/  as  an 
agrnt  to  forward  th<m,'\»  Hal  •  in  trover  ; 
and  we  submit  that,  while  the  House  of 
Lords  nominally  decide  that  he  is  so  lia- 
ble, they  iiave  only  reached  siuh  a  conclu- 
sion by  such  a  complete  perversion  of 
languiige  as  tonu';e  the  case  itself  in  ef- 
fect del  ide,  that  a  person  who  has  dealt 
with  goods  as  named  in  the  leave  reserved, 
is  not  liable  in  trover  for  conversion.  We 
make  these  additional  remarks  becau.se  the 
volume  of  the  Liw  Hejwrts  containing  the 
report  of  the  ca.se  in  the  Kxche(|iier  Cliam- 
iK'rwas  not  at  hand  when  we  examined  the 
ri'port  of  the  case  as  decided  by  the  House 
of  Lords.  And  we  are  in  the  tiillest  ac- 
cord with  the  jiuigments  of  Kelly,  C.  H., 
and  IJiett,  J.  (with  whom  agreed  IMes,,I.), 
and  we  think  their  reasoning  in  ilie  case 
is  unanswerable.  We  think,  on  tlie  epics- 
tion  which  they  had  to  decide,  their  con- 
clusions, that  the  defendants  were  not 
guilty  of  a  conversion,  inasmuch  as  they 
acted  only  as  brokers,  and  exercised  no 
dominion  over  the  (cotton  in  their  own 
right  and  for  their '".m,  b^netit  ;  and  that  a 
jHissession  or  (b'tention,  which  is  a  mere 
custody  or  mere  asportation  made  with- 
out reference  to  the  (|uestioii  of  the  jiroj)- 
erty  in  chiittcls,  is  not  a  conversion  ;  and 
that  the  defendants,  acting  only  as  brokers 
by  negotiating  a  biirgain  of  ]Mirchasc  and 
sale,  and  liy  |iassing  a  di'liveiy  order,  were 
not  guilty  of  a  conversion,  —  is  not  only 
law,  but  that  it  is  sustained  as  law  by  the 
whole  rea.soiiiiig  in  the  House  of  I^ords, 
which  nominally  decided  the  reverse.  .See 
lloss  V.  .lohnson,  5  Burr.  2S'2r>  ;  (!reen- 
wav  r.  Fisher,  1  C.  k  \\  1!mi  ;  Foiildes 
V.  Willonghby,  8  M.  k  W.  .'>4(l  ;  Laiica- 
shire  Waggon  t'o.  v.  Fitzhugh,  G  H.  &  N. 
602. 

I  L.  R.  7  H.  L.  802. 

»  Ibid.  757. 

•  L.  K.  5  C.  P.  646. 

«  L.  K.  7  C.  P.  84. 


1     'r*  ij'' 

'  f:  li 

1    ^     ..I 

•■\f 


i 


ni  ! 


t 

ii 

I 

•1 

;i 

if 
ii- 

jilu 

668 


COMMENTARIES  ON   SALES. 


[book  II. 


culled  in,  who  were  divided  in  opinion,  four  ngainst  three.  Tlic 
House  of  Ijorda  unanimously  reversed  the  decision  of  (he  courts 
below.  Notwilhstandinj;  this  wonderful  conflict  of  o|)ini(jn  iiiuonif 
the  very  aide  judges  acting  in  the  case,  the  correctness  of  the  tlo- 
cision  of  the  House  of  Lords  is,  wo  think,  entirely  heyoml  duultt. 
The  facts  were  that  the  defendant  and  appellant,  Robinson,  a  mer- 
chant at  Liverpool,  gave  an  order  to  the  plaintiffs,  tallo\v-bii»i<(Ms 
in  lioudon,  on  April  2,  for  the  purchase  of  lifty  tons  of  tallow  at 
4i)s.  07.  On  April  29,  the  defendant  gave  the  plaintiffs  another 
order  to  purchase  200  tons  of  tallow,  100  for  luni,  and  100  for  a 
friend  ;  the  whole  to  be  booked  to  him,  and  the  purchase  to  be 
made,  not  at  a  spccilicd  price,  but  on  *'  the  best  terms ; "  tlio 
orders  being  for  the  Juno  delivery.  The  plaintilTs  had  btforo 
bought,  and  afterwards  also  bought  from  various  perhous,  consiii- 
crable  (juantities  of  tallow,  none  specifically  for  defendant ;  hut 
proposed  to  supply  the  wliole  250  tons  at  the  June  delivery,  out  of 
their  various  jjurehases.  In  their  notes,  sent  immediately  after 
each  of  the  orders  had  been  received,  the  plaintifVs  said  :  "  We 
liave  this  day  bought  for  your  account,"  and  sig»:ed  them,  with  tiie 
addition  of  the  words,  "  sworn  brokers."  The  price  of  tallow  fell 
in  the  market  between  the  date  of  the  orders  and  the  time  for 
June  delivery.  When  that  time  arrived,  the  plaintifYs  teiulored 
250  tons  of  tallow,  but  the  defendant  refused  to  accept  the  tallow 
80  tendered.  The  plaintiffs  sold  the  tallow,  and  then  (suing  in 
their  own  names,  in  effect,  as  though  they  were  principals)  brought 
assumpsit  to  recover  the  difference  ;  insisting  that  they  were  en- 
titled to  do  so  in  virtue  of  the  established  usage  of  the  London 
tallow  market.  The  usage  relied  on  did  not  exist  in  liiverpool, 
and  was  unknown  to  the  defendant.  The  question  in  the  case 
was,  whether  the  a])pellant  was  bound  by  the  custom  merely  by 
the  employment  of  the  respondents  as  his  brokers  to  buy  for  hini. 
and  from  their  having  [nirchased  in  the  London  market  the  (juan- 
tity  of  tallow  ordered.  The  House  of  Lords  held  that  he  was  not. 
Lord  Chelmsford,  in  his  judgment  in  ^h""  House  of  Lords,  whieh 
was  concurred  in  by  his  able  colleagues,  deals  conclusively  with 
the  case.  The  following  brief  passages  in  his  judgment  go  to  the 
very  gist  of  the  matter :  "  The  effect  of  this  custom  is  to  change  tiie 
character  of  a  broker  who  is  an  agent  to  buy  for  his  employer, 
into  that  of  a  principal  to  sell  for  him.  No  doubt  a  person  cm- 
jdoying  a  broker  may  engage  his  services  upon  any  terms  he 
pleases ;  and  if  a  person  employs  a  broker  to  transact  for  hiia 
upon  a  market  with  the  usages  of  which  the  principal  is  unac- 
quainted, he  gives  authority  to  the  broker  to  make  contracts  upon 
the  footing  of  such  usages,  provided  they  are  such  as  regulate  the 


til 


PART  VIII.] 


AGENCY. 


659 


mode  of  performing  the  contracts,  and  do  not  chmije  their  in- 
trinsic character.  ...  I  have  already  intimated  the  doiibt  wliicli 
1  entertain  whether  the  UHuge  of  the  London  talK)\v  trade  applioH 
at  all  to  the  case  of  an  ordinary  transaction  between  broker  and 
principal.  Assuminj;,  however,  that  it  does,  1  hesitate  to  say  that 
it  would  not  apply  in  the  case  of  persons  knowinjjof  its  existence, 
and  employing  a  broker  to  act  for  them  in  the  market  where  it 
prevails.  Hut  the  usiij^e  is  of  such  a  peculiar  character,  and  i»  no 
comph'tcli)  at  variance  between  the  jtartiea,  converting  a  broker  em- 
ployed to  bill/,  into  a  principal  seUinif  for  him»clt\  and  thereby 
giving  him  an  interest  wholly  opposed  to  his  duty,  that  I  think  no 
person  who  is  ignorant  of  such  an  nsagc  can  be  held  to  have 
agreed  to  siibmit  to  its  conditions,  nierely  by  employing  the  ser- 
vices of  a  broker,  to  whom  the  usage  is  unknown,  to  perform  the 
ordinary  and  accustomed  duties  belonging  to  such  employment." ' 
The  principle  on  which  the  case  was  decided  by  the  House  of 
Lords  was  virtually  conceded  by  all  the  judges,  so  many  of  whom, 
in  this  most  extreme  case,  failed  to  make  a  proper  application  to  it. 
Thus :  "  It  is  an  elementary  proposition  tliat  a  custom  of  trade 
may  control  the  mode  of  performance  of  a  contract,  but  cannot 
ehanife  ita  intrinsic  character."^  And,  per  IJlackburn,  J. :  "if  the 
terms  are  such  an  to  be  inconsistent  with  the  nature  of  the  emploi/. 
inent,  so  that  if  the//  prevailed  they  would  chan<fe  its  nature  alto- 
ijether,  I  think  they  should  bo  rejected."  ^  It  was  on  the  clearest 
application  of  these  principles  that  the  House  of  Lords  reversed 
the  decision  of  the  courts  below.* 


»  L.  U.  7  H.  L.  at  p.  83C  et  srq. 

2  Per  Willi's,  J.,  Ihiil.,  ttt  p.  818. 

»  Ifiid.,  nt  1".  81  It. 

*  Till-  iiriiuipli'  fjovoriiiiij;  this  case  is 
well  kill  tliiwii  Itv  Ccilt'iitljji',  J.,  in  Hrown 
V.  Byrni',  3  Kl".  &  H.  703,  71.'i,  thus: 
"  Mcivniitilc  contnicts  me  vory  coin- 
iiioiily  friiini'tl  in  a  liiiij^iiiif^c  jn'culiar  to 
iiii'i-chants  ;  tlu^  iiitciition  (if  tin-  piiitics, 
tliipiijjh  p<'rftvtly  wrll  kiiipwii  tn  tlii'iii- 
sclvfs,  woulii  ot'ti'll  lie  cit'fi'MtiMl  if  this  laii- 
KUii;,'c  were  stiirtly  i-onstnicd  lu'cordiiif;  to 
its  onlinary  import  in  the  worlil  :it  l;uj,'o  ; 
evidence,  tliricrnrc,  ol'  nimMntilo  ciistoni 
and  usajjo  is  udniittiMl  in  oidiT  to  expound 
it  nil  I  arrive  at  it''  true  nicaiiin;,'.  .-Vifain, 
in  all  eontraets,  is  to  the  siihjeet-inatter 
of  whieh  kno'.ii  usages  pnvail,  parties 
are  found  to  proeecd  with  the  tiicit  as- 
sumption of  these  (isacfes  ;  they  eoninionly 
reiluce  into  writing  the  speeial  partieulars 
of  their  a^jreenieut,  hut  omit  to  specify 
these  known  usajjes,  which  are  included 
however,  as  of  course,  by  mutual  under- 
standing ;  evidence  therefore  of  such  in- 
cidents is  receivable.    The  contract,   in 


tnith,  is  partly  exjiress  and  in  writing  ; 
partly  ini]ilietl  or  understood,  and  unwrit- 
ten. Hut,  in  those  cases,  a  restriction  is 
established  on  the  soundest  priiKiipIe,  that 
the  evidence  received  must  nut  be  of  a 
parfiruldf  vhich  is  n/nnjiKinf  to,  or  incon- 
si."'  t  with,  till'  ivrilleu  cnntriict.  Merely 
that  it  varies  the  apparent  contract  is  not 
enoujjh  to  exchule  the  evidence  ;  for  it  is 
itnpossible  to  add  any  material  incident  to 
the  written  terms  of  a  contract  without 
altiriiifj  its  ed'ect.  more  or  less.  Neither, 
in  the  construction  of  a  <'0!itract  among 
merchants,  trailesmen,  or  others,  will  the 
evidence  be  excluded  iH'cause  the  words 
arc  in  their  ordinary  meaning  unambigu- 
ous ;  for  the  iiriiici|ile  of  admission  is, 
that  words  perfectly  unambiguous  in  their 
ordinary  meaning  are  used  by  tiic  con- 
tractors in  a  ililferent  sense  from  tiiat. 
What  words  more  jilaiii  than  'a  thou- 
sand,' '  a  week,'  '  a  day '  ?  Yet  tlic  cases  are 
familiar  in  which  'a  thotisnnd '  lias  been 
held  to  mean  twelve  linndred  ;  'a  week,' 
a  week  only  during  the  theatrical  season  ; 
*  a  day,'  a  working  day.     In  such  cases  the 


I 


!   F  .1  A 


i.    ! 


i\i 


« 


560 


COMMENTABIES  ON  SALES. 


[book  II. 


PART  V 


Armst.'ong  v.  Siokes,*  in  the  Queen's  Bencli,  decides  that  a 
venuor,  who  has  given  credit  to  an  agent,  believing  him  to  bo  tljc 
principal,  cannot  recover  against  the  undisclosed  principal,  if  the 
principal  lias  bond  fide  paid  the  agent  at  a  time  when  the  vendor 
still  gave  credit  to  the  agent,  and  knew  of  no  one  else  as  principal. 

In  this  case,  R.  &  Co.  were  commission  merchants,  acting  some- 
times for  themselves  and  sometimes  as  agentn.  The  plaintiil,  a 
merchant,  had  had  dealings  with  them,  and  had  never  in(iuired 


evitlence  neither  ntUls  to,  nor  qualifies  nor 
contmdicts  the  written  contract  ;  "t  only 
ascertiiins  it,  by  ey;,juniling  the  liinguage." 
See  Wvbh  v.  Iluniiner,  2  H.  k  AM.  746  ; 
Hutton  V.  Wiirmi,  t  M.  &  W.  466  ;  Smitli 
V.  Wilson,  3  B.  &  A.l.  7J8  ;  CJrant  i;.  Mail- 
dox,  15  M.  &  W.  737 ;  Coclinm  v.  Uetberg, 
5  Esp.  121  ;  Truenian  v.  Loder,  11  A.  & 
F.  598  J  Anderson  v.  Pitclier,  2  IJ.  &  F. 
164,  163  ;  Spartati  v.  B.-m-cku,  10  C.  B. 
212;  Syers  p.  Jonas,  2  \',x.  116  ;  Wiggles- 
worth  V.  Dallison,  1  Dong.  2«1  ;  Ford  v. 
Yrttcs,  2  M.  &  G.  54'.> ;  Blaik.-tt  v.  Koyal 
Kx.  Ass.  Co.,  '.:  C.  &  J.  244,  249.  In 
Trueinaii  v.  Loder,  11  A.  &  K  589,  Lord 
J'lMinian  says:  "  Kvidi'nce  of  the  prevail- 
ing  custom  is  sti!!pi>s(!d  to  show  that  Ixith 
parties  had  in  ilieir  contemplation  more 
tliun  appears  m  ^hc  writing  ;  imt  suppos- 
ing them  both  to  have  not  only  contem- 
plated, but  distinctly  expreissed,  in  the 
plainest  words,  that  tlit  y  considered  their 
contract  to  ini'ludi'  a  piovision  not  to  be 
found  in  the  paper,  still  the  evidence  can- 
"ot  be  introiluced  into  the  cause.  Custom 
of  tniile  lias  been  supposcil  to  form  a  vir- 
tual exception  to  this  will-k.Miwn  rule  ; 
but  the  cases  go  no  fartlicr  than  to  p(  rmit 
the  explanation  of  words  u.sed  in  a  sense 
dilferent  from  tlieir  ordinary  meaning,  or 
the  a<Milioii  of  known  terms  7iot  incon- 
sistent Willi  the  wriltcii  cnvtrwl."  The  law 
is  laid  down  to  the  same  elfeet  bv  Parke, 
B.,  in  Hutton  v.  Warren,  1  M.  &W.  466, 
475  :  "  It  has  long  lieen  settled  that, 
in  commercial  transa(;tions,  extrinsic  evi- 
dence of  'iistom  and  usage  is  admissible 
to  iiiinr/.  spcidcnts  to  written  contracts, 
in  malt;  rs  with  respect  to  which  they  are 
silent.  Th('  same  rule  has  dso  l)een  ap- 
tilled  to  coit'racts  in  other  transactions  of 
life,  ii;  wli  'h  known  usages  have  Im-cu 
establis'ieil  and  jirevailed  ;  and  this  has 
Iven  dune  ipon  tlie  principle  of  jiresump- 
tion  tliat,  .11  such  transactions,  tlie  parties 
did  not  n  I'an  to  express  the  whole  of  the 
tontract  by  wliich  they  intended  to  Ito 
bound,  Imi  a  contract  witli  reference  to 
those  known  usages.  .  .  .  Accordingly,  in 
Wigi;lesworth  v.  Dallison,  1  Doug.  201, 
afterwards  adirineil  in  a  writ  of  error,  the 
tenant  was  allowed  an  away-going  crop, 
though  there  was  a  formal   lease  under 


seal.     There  the  lease  was  entirely  silmt 
on  the  sutiject  of  such  a  right,  and  Lord 
Mansfield  said,  that  the  custom  did  not 
alter  or   contradict   the    lease,    but   only 
suiHU'added  something  to  it.     This  (pu's- 
tion  subseijuently  came  under  i]w.  t'oiiiiil. 
oration  of  the  Court  of  King's  BimkIi,  in 
the  case  of  Senior  v.  Armitage,  llult,  lli7. 
In  that  case,  wliich  was  an  action  liv  i 
tenant  against  his  landlord  for  a  c<ini]i'i'n- 
sation  for  seed  and  labor  under  tlie  ile- 
nomination  of   tenant-right,    Mr.   .Iiisticc 
Baylej,  on  its  appearing  that  ilier.'  wm 
a  written  ngivemi'iit   between  the  partii\s, 
no.i.suited  the  ]ilaiiitilf.     The  courl  iiftci- 
v.'p.rds  .set  aside  the  nonsuit,  and  luld,  as 
npi>cars    by  a    manuscript    note  of  that 
learned  judge,  tliat,  though   tlicic  w.is  :i 
written    contract    bctwiMU    landlord   and 
tenant,  the  custom  of  tlie  country  would 
ho  still   binding,  if  not  inco.isisli-nt  vith. 
the  terms  of  such  wvittii)  cotitract  :  amitliut 
no*-  only  all  common-law  obligations,  Imt 
those  imposed  by  custom,  were  in  full  forci- 
where  the  cimtracl  ilid   not  vary  tlii'in." 
See  further,  Swectingy.  I'ciirce,  ~  t.  It.  \.  s. 
44*1  ;  Lamplcigli  v.  Braithwait,  Hob.  In,"); 
Sutton  V.  Tatliain,  10  A.  &  K.  27  ;  Tuvlur 
V.  Stiiiy,  2  ('.   B.  N.  .s.   175,  l!i7  ;    l.'ose- 
warne  v.  Billing,  15  C  B.  \.  .s.  ',\\i\  ;  H.iy- 
lilfe  V.  Biitterwortli,  1   \'.\.  4'.'5  ;  (iitiivcs 
V.    Legg,   11   Kx.   •!42;    2   II.  &  X.  210; 
Humphrev  v.  Dale,  7  K.  k  li.  'IM  :   K.  Ii. 
&  K.  loot";  Wall  c.C.Mk.'ivll,  10  II.  I,.C. 
229  ;  Fawkes  v.  Lamb,  ai  L.  ,1.  (,».  li.  !'S  ; 
Hall   V.  .lanson,   4   K.    &  B.   500  ;  ShId- 
nions   t;.    IVnder,   3   II.    &  ('.   (WO;   l!i* 
tock    V.    .lardine,    lli.    700  ;    Slianiinii  r. 
Brandt,   I,.  K.  6  (,).  I!.  720  ;  .Stuli.y   c. 
Dickey,  5  Binn.  287  ;   Barber  c.  linio',  3 
Tonn.  9;  Bank  of  Columliia  i-.  Kii/lmuli, 

1  Harr.  k  (J.  2:!1)  ;    Haven  v.  Weiitaniili. 

2  N.  H.  93;  I'liited  States  r.  Arrcilondn, 
6   I'ct.  715  ;    Simpson  v.  (.ia/zani,  li  I'mt. 

123;  The  licesidi-,  2  Sumn.  5t)ii  ;   Co r 

V.  Kane,  5't  Wend.  3.S(;  ,  Sh.iw  r.  Mi'ilMll, 
2  Mete.  65;  Katon  r.  Smith,  20  I'i.  k.  -J."": 
Wayne  i>.  Steamlioat  <!ener.il  I'ike,  I'J 
Ohio,  421  ;  liighdiriglit  v.  Hammond,  1'.' 
Ohio,  337 ;  Foye  v.  Leighton,  'J  l""'t. 
71.  See  furthi-r,  in  a  later  volume  of  tliii 
work,  on  Custom  ami  L'.sage. 

»  L.  R.  7  Q.  B.  598. 


whetlie 
them 
pieces  ( 
thirty  d 
tiff  deli, 
'■"ffs),  a 
Aug.  25. 
day,  Sep 
<fe  Co.,  0 
Co,  had  1 
cumstant 
giving  or 
white  wci 
shirting, 
price  of  t 
their  conn 
transactio; 
cash,  i.  e., 
into  comm 
the  goods, 
for  200  pie 
the  mode  o 
i'lgs  from  r 
ants,  charg 
t'le  cost  of 
two  sums,  V 
perfect  goo( 
received  th( 
having  pow( 
"1  taking  no 
Hot  lachen  si 
'roni  recover 
that  there  Wi 
ants  and  li.  * 
""tH  and  tho 
^^^(^  f'ond  fide 
l'''<'ii'itiflF  still 
^'«e  as  prin 
(Jefcndants.' 

'  TJiis  case  mi 
r'Haid  down  in 
""•&('.  36.  by 
P'T'liiise  is  made 
>l*^  not  of  nece 
"i«l<''  himself  per 
"'ay'ioso.     Ifie 

''"'-  I. 


PART  VIII.] 


AGENCY. 


561 


■   *8 


whethei  they  had  principals  or  not,  and  had  always  settled  with 
them     On  June  15,  plaintiff  contracted  to  sell  to  R.  &  Co.,  200 
pieces  of  shirtings  at  a  certain  price,  payment  to  be  made  in 
thirty  days  after  delivery,  with  a  discount  of  1.}  per  cent.     Plain- 
tiff delivered  the  shirtings  (which  were  gray  or  unbleached  shirt- 
ings), and  the  payment  ought  to  have  I  een  made  on  Friday, 
Aug.  25.    On  the  24th,  R.  &  Co.  asked  for  delay  till  the  next  pay- 
day, Sept.  1 ;  and  whilst  plaintiff  was  considering  what  to  do,  K. 
&  Co.,  on  AUj^.  30,  stopped  payment.     It  turned  out  that  K.  <fe 
Co,  had  bough'  the  goods  for  defendants,  under  the  following  cir- 
cumstances :    Defendants,  merchants,  had  been  in  the   hubit  of 
giving  orders  to  R.  &  Co.,  for  white  and  gray  shirtings.     When 
white  were  ordered,  R.  &  Co.  went  into  the  miv.ket,  bought  gray 
sliirting,  had  them   bleached,  and  charged  dcitudauts  with   the 
price  of  the  gray  shirtings  and  one  per  cent,  on  the  aggregate  as 
their  commission,  with  the  charges  of  packing,  etc.     In  previous 
transactions,  defendants  had  always  paid  R.  <fc  Co.,  generally  in 
cash,  i.  €.,on  the  next  weekly  pay-day,  and  bad  never  been  brought 
into  communication  with  those  who  supplied  or  those  wliu  bleached 
the  goods.     In  the  present  case,  defendants  gave  a  verbal  f)rder 
for  200  pieces  of  white  shirtings,  the  price  not  being  named  nor 
the  mode  of  payment.     R.  &  Co.  having  received  tlie  gray  shirt- 
ings from  plaintiff,  got  them  bleached  and  sent  them  to  defend- 
ants, charging  the  price  at  which  thoy  had  bought  of  plaintiiT,  — 
the  cost  of  bleaching  and  one  per  cent,  on  the  aggregate  of  tliosc 
two  sums,  with  t)io  charges  of  packing,  etc.,  and  detVudar.ts,  with 
perfect  good  faith,  paid  R.  <fe  Co.  on  the  next  pay-day  after  they 
received  them,  viz.,  on  Aug.  il.    On  the  above  facts,  fie  court, 
having  power  to  draw  inferences,  held  that  the  delay  of  plaintiff 
in  taking  no  steps  between  the  2r)th  and  the  HOth  of  August  was 
not  laches  such  ;>      culd  havo  ;< -ccluded  him,  if  otherwise  entitled, 
from  recovering  payment  from  acfendants  ;  but  that,  —  n.ssuming 
that  there  was  authoritv  from  the  cour.so  of  dealing  between  defend- 
ants and  R.  &  Co.,  to  establish  privity  of  contract  between  defend- 
ants and  those  from  whom  R.  A-  Co.  obtained  the  goods, — after 
the  hond  fide  payment  by  defendants  to  R.  k  Co.,  at  a  time  when 
plaintiff  still  gave  sole  credit  to  R.  <fe  Co.,  and  knew  of  no  one 
else  as   principal,   plaintiff'   could   not   recover   the   price   from 
defendants.' 


'  This  case  wns  deriilfid  on  the  prinri- 
plc  laid  ilown  in  Tiioinpson  v.  Dnvenp^irt, 
9  W.  &  ('.  30,  l)y  B'tyhy,  J.  :  '*  W'hiTo  i 
piiri'liiise  is  miuli!  by  nn  ngent,  the  ngent 
liof's  not  of  necessity  so  ciontract  as  to 
niaki'  himself  nersoniiUy  liable  ;  but  he 
may  Ju  so.     If  lie  does  make  himself  per- 

VOL.  I.  96 


sonnlly  liablo,  it  does  not  follow  that  tho 
priiii'ipal  may  not  Iw  liabli'  also,  subjeo* 
to  this  (|unliru'ation,  that  tho  pi'iiicii)al 
shall  not  l)c  iir.jiidi(;c(l  by  bciiit;  niado 
iM-isonally  liable  if  the  justice  of  tlio  case 
IS  that  hu  should  not  be  inrsonally  liable. 
If  tho  principal  has  paid  the  agent,  or  if 


I 


r  !; 


'      Li 


662 


COMMENTARIES  ON  SALES. 


[book  II. 


In  a  very  recent  case  (a.  d.  1887)  the  effect  of  usage  in  mak- 
ing brokers  personally  liable,  where  they  confracted  as  brokcis, 


the  state  of  the  accounts  between  the 
agent  here  anil  the  principiil  would  make 
it  iinjuMt  that  the  seller  should  cull  on  the 
principal,  the  fact  of  payment  or  such  a, 
state  of  accounts  would  be  an  answer  to 
the  action  brought  by  the  seller  where  he 
had  looked  to  the  responsibility  of  the 
agent."  See  Sniethurst  v.  Mitchell,  1  K. 
&  E.  622  ;  Ex  inrte  White,  L.  R.  «  Cli. 
App.  3!>7;  Bostock  v.  Jardiue,  3  II.  k  C. 
700 ;  Horsfall  w.  Fauntleroy,  lo  B.  &  C. 
755  ;  Mollett  V.  Robinson,  L.  K.  7  C  P. 
119;  iuilton  V.  HodgKon,  and  Po-lc  v. 
Hodgson,  4  Tiiunt.  fj.'i,  iul,  n.  ;  Waring 
V.  Favenck,  1  Camp.  85;  Kymer  c.  Snwcr- 
eronp,  1  Camp.  109  ;  Keinble  v.  Atkins, 
}lolt,  427;  Hi<,'f,'ins  v.  Senior,  3  M.  &  W. 
844;  Smyth  v.  Amiersou,  7  C.  B.  39.  See 
Curtis  V.  Williamson,  L.  K.  10  Q.  B.  57, 
stated  ante,  p.  548,  and  lb.  note  2.  In 
Sinytii  V.  Anderson,  7  »'.  B.  39,  Wilde, 
(.'.  .1.,  told  the  jury  "  that  if  a  merchant 
sells  goods  to  another  in  ignoramo  that 
he  buys  as  an  agent,  or  knowing  that  he 
is  an  agent,  Wing  iiiiiiiformed  as  to  the 
name  of  his  principal,  although  the  seller 
may  in  the  (irst  instance  have  adopted  the 
actual  huyer,  yet  when  ho  iliscovers  for 
whom  the  goods  were  bought  he  is  at  lib- 
erty to  adopt  the  principal  as  his  debtor, 
and  charge  him,  —  that  is,  j)rovidfd  the 
principal  has  not  in  the  interim  iiaid  his 
agent.  The  seller  cannot  u|K)n  discover- 
ing the  true  characiter  of  the  transaction 
charge  the  principal,  to  whom  hi!  diil  not 
give  cnidit  in  the  first  instance,  to  the 
prejudice  of  the  principal,  with  reference 
to  the  state  of  a(!coiints  between  him  n;id 
his  agent."  This  charge  was  sustained  by 
the  court.  But  in  Heald  o.  Kenworthy, 
10  Ex.  739,  it  was  held  that  where  a  prin- 
cipal autiiori/es  his  agent  to  pledge  his 
credit,  and  the  latter  makes  a  purchase 
on  his  behalf,  and  thereby  creates  a  dcl)t, 
the  principal  is  not  discharged  by  pay- 
ment to  the  agent,  if  the  money  is  not 
paid  over  to  the  seller,  unless  the  lalf<r  by 
his  conduct  makes  it  unjust  that  th'  piln- 
filial  should  \wi  sued;  as,  for  exaiii|>li 
wneie  the  seller  by  his  word'-  or  conduct 
induces  the  principal  to  believe  that  a 
settlement  has  been  come  to  In^twcon  the 
seller  and  the  agent,  in  consenuence  of 
which  t!iu  principal  |iays  the  amount  of 
the  debt  to  the  agent.  In  Armstrong  v. 
Stokert,  I,.  K.  7  C>.  B.  603,  Blackburn,  J., 
says:  "Tlie  first  point  ilejicnds  on  a  ques- 
tion of  fact,  viz.,  what  was  the  authority 
really  given  to  .1.  and  O.  Ilyder  [the  al- 
XvigtA  agents]  by  the  defendants  ?  It  is, 
we  think,  too  hrmlv  established  to  bo  now 
questioned  that  wliere  a  [wrson  employs 


another  to  make  a  contract  of  purchase 
for  him  he,  as  princiiml,  is  liable  tn  tlic 
seller,  though  the  seller  never  heard  of  his 
existence,  and  entered  into  the  coiitrait 
solely  on  the  credit  of  the  jiersun  whuin 
he  lielieved  to  be  the  piincipal,  tluiu),'li 
in  fact  he  was   not.      Il  luis  iifkn  limi 
Uonblid  whether  it  was  uriijimilhj  riijht  so 
to  hold  [see  our  remarks  on  this  in  din. 
cussing  the  non-liability  of  a  foreign  prin- 
cipal.  Ante,  p.  615,  II.];  but  doiilitsnl' this 
kind  come  now  too  late;  for  we  think  that 
it  is  established  law  that  if  on  t!ic  failure 
of  the  fierson  with  whom  alone  the  vendor 
lielieved    himself   to    be    coiitractin<;,   <.m 
vendor  discovers  that  in   reality  tlicre  is 
an  undisclosed  principal  behind,  he  is  en- 
titled   to   take   advantage    of    this   unex- 
pected godsend,  and  is  not  put  to  tike  a 
dividend  from  tlie  estate  of  him  with  ttlmin 
alone  he  bi'lieved  himself  to  \v.\  contiait- 
iiig,  and  to  whom  alone  he  gave  civdit, 
and  to  leave  the  trustees  of  that  estate  tn 
settle  with  the  undisclosed  principal,  sub- 
ject to  all  mutual  credits  ami  ecpiiiics  lie- 
tween   them.     He  may  re(  over  tiie  price 
himself  direct  from  the  principal,  suhiict 
to  an  exception,  which  is  not  so  well  cs- 
tablisheil  as  the  rule,  and  is  not  very  ac- 
curately delined,  viz.,   that   n<itiiiiig   liiif 
occurred  to  make  it  unjust  that  the  un- 
disclosed ]irincipal  should  be  callid  n|Kin 
to   make    the    payment    to   the    vimlnr.' 
This  is  very  unsatisfactory,  and  shows  tlif 
absence  of  any  sound  and  intelligilili'  miii- 
ciple  governing  the  cases  which  cstaMisli 
either  the  mi.   or  the  exception.     Bliick- 
burn,  .1.,  then  discusses  the  ()iicstiiin  :is  tn 
whether  there  was  any  privity  of  cniitrail 
between  the  plaintilf  and  defendant,  iiiid 
incidentally  inentinns  the  case  of  a  f(iri'i;,'ii 
principal  and  a  home  ngent,  in  i'mIit  to 
show  that  there  may  be  a  ca.<;e  wluii!  an 
•.indisidosed  princitial  is  not  liable,  mi  dis- 
covery, to  the  vendor  for  the  purcliiiscs  by 
the  agent.   The  illustration,  bowev.'r.  from 
that  point  of  view  we  do  not  ciinsidcr  ii 
good  one.      We    have   alrea<ly  considrrt'd 
that  question  [see  anle.,  607  fl  w/. ),  ;iiid 
think  that  the  distinction  taken,  as  a  mat- 
ter of  law,  is  not  well  founiled.     In  this 
country  the  dilferent  States  in  all  analo- 
gous cases  are  treated  us  foreign  to  n\A\ 
other,  anil  yet,  we  apprehend,  the  exist- 
ence of  such  a  rule,  a.:  appliialde  to  tin' 
dilferent  States,  has  never  been  sd  iniii'li 
as  mooted.     And  in  England,  too,  in  tli'' 
important   cast*   of    Smyth   i*.    Aiidirsoii, 
7  C.   B.   21,  the  purchaser  of  the  ^■w\'< 
was  a  tneridiant  residing  abrcml,  and  iif 
wns  only  held  not  liable  for  the  gnods  be- 
cause, having  bought  the  goods  through 


PART   VIII.] 


AGENCY. 


663 


t-;     ;    ■ 


was  considered  and  decided.     An  action  was  brought  against  the 
defendants,  who  were  hop-brolccrs,  to  recover   damages  for  the 


I  ,- 


i 


an  ngcnt,  be  iii  good  fuith  had  \>nn\  his 

agi'iit  throu^'h  wlioin  the  tmiisiK'tidii  was 

carried  out,  without  any  tli-niand  having 

been  in  the  mean  time  made  u|iun  hint  tor 

payment   by  tlie   vendors,    or   notice    by 

tluin  thnt  they  looked  to  liim  fur  jiay- 

Hunt.     We  think  the  rationale  ol  Smyth 

I'.  Anderson  justilies  tliat  whicli   l5i},'eiow, 

('.  J.,  implied  when   he  saiil    in   Bray  v. 

Ketteil,  1  Alien,  80,  8a,  and  with  whieh 

ue  i'ully  t.'oncur,   that   no  e.ise  had   held 

tliat  the  foreif,'n  prini'ipai  was  not  as  lia- 

l)le  as  the  home  principal  on  the  contract 

made  by  '.is  agent.     We  think   the  true 

principle  Roverninj<  tli"  cases,  as  Smyth 

r.  .Anderson  and  Armstionj;  r.  Stokes  in 

cll'i'ct  show,  is  quite  lus  appli(;ablc  in  tlie 

one  case  as  in  the  other.     And  we  tliink, 

ti)(i,  'hat  the    principle  decided   in    lioth 

of  tliesc  cases  u  cort  'ct,  ami  is  applicable 

to  such  ipu'st'ons  between  princi|Kils,  and 

Ix'tween    jirinciiui    and    ugcnt    {generally, 

witli  no  Tuore  limitation  in   principle  to 

a  tiireiy;n  j>urcha.scr  thati  to  a  home  p\ir- 

ihaser.      We  think  that  principle  is  well 

ai,  I  acciiratelv  stated    by   Itaviev,  ,!.,   in 

Tr       ;    ■'»  V.  'Davenport,"  9  H." /t  ('.  8(;,  as 

nil    .  •'   I  !  this  note,  an(|  by  Lord  'IVntcr- 

ucn    ..  ;  ;e  same  case,  as  t'dllows  :  "  I  take 

it  to  be  a  genend   rule  that  if  a  jierson 

sflls  goods,  HU]iposin^'  that  at  the  time  of 

tln^  contract  he  is  dealing  with  a  princi- 

I«l,  but  afterwards  discovers  that  the  jier- 

«o:i  with  whom  he  has  Iwcn  dealing  is  not 

the  principal  in  the  transaction,  but  agent 

for  ii  third  jiersn?!,  though  lu'  ma\  in  the 

mi;in  time  have  debited  the  agent  with  it, 

lie  iiiMV  afterwards  recover  the  amount  from 

t'le  leal  principal,  subject,  however,  to  this 

i|iiiililieation,  that  the  state  of  the  account 

iietwei-n  the  ]irincipal  and  the  agent  is  not 

nltered  to  the  prejudice  of  the  prini  ipal." 

Or,  as  is  even  more  clearly  stated  by  M.iy- 

ley,  .1.,  as  we  have  (pioted,  "  /I'tfn'  /irlit- 

diml  liiu  /iii'il  ilif  (iii)'iit,  or  if  the  state  of 

tlie  a )unfs  iK'tween  the  agent   here  and 

till'  principal  would  make  it  unjust  that 
the  seller  should  <'all  on  the  piiueipal,  llir 
fori  III'  /Miimti'iit  UK  .inch  (I  sfii/r  nf  nrrninih 
woiilij  lie  an  answer  to  the  action  brought 
by  tlie  seller  wheri'  he  had  looked  to  the 
n'mmnsibility  of  the  agent."  This,  wo 
think,  is  law  ;  but  there  have  been  dicln 
wliii  li,  if  applied  to  such  cases  as  those  we 
hsve  been  e<msideriiig,  are  very  fa.'  other- 
wise. Thus  in  Kynier  i>.  Suwercropji, 
1  Camp.  109,  112,  Lonl  Kllenl)orougli 
MVH'  "  A  person  selling  goods  is  not  I'on- 
•iiitil  to  the  ore«lit  of  a  broker  wl  o  buys 
'lii'tn,  hut  may  n'sort  to  the  \  'm"-  .pal  on 
slioMe  <ieootint  they  are  bcmght ;  and  he  is 
no  more  aifcctpd  tiy  tlic  state  of  accounts 


Ix'tween  the  two  than  I  .should  be  were  1 
to  deliver  goods  to  a  man's  servant  jiiirmi- 
ant  to  his  order,  by  the  consideration  of 
whether  the  servant  waa  indebted  to  the 
master  or  the  master  to  the  .servant.  If 
he  lets  the  day  of  payment  go  by  he  may 
lead  the  luiiieipal  into  a  supposition  that 
he  relics  .souly  on  the  broker  ;  and  if  in 
that  case  the  jii-'ee  of  the  goods  has  been 
paid  to  the  broker,  on  account  of  this  de- 
ception the  princi])al  shall  be  discharged." 
In  this  case  the  brokers  bought  the  goods 
in  their  own  name,  to  whom  also  the  war- 
rniits  for  the  delivery  of  the  goods  were 
given,  on  which  the  goods  were  olitained 
Irom  the  wari'house,  the  defendant  not  !«• 
ing  known  in  the  matter  by  the  vendors, 
and  lu'  having  accepteil  the  brokers'  bill 
for  the  goods  iiii  receiving  them.  Obvi- 
ously this  is  a  very  dillerenlcase  from  that 
assumed  by  Lord  Klleiiborough  of  deliver- 
ing "gooils  to  a  man's  servant  pursuant 
III  his  tmlir."  Then  the  agent  in  this  case 
was  not  a  factor  or  commission  tnerchant, 
but  a  broker,  with  reference  to  whom  a 
distinction  is  made  in  .some  of  the  eases. 
See  Keinble  v.  Atkins,  llrdt  N.  1".  427; 
lliggins  V.  Senior,  8  M.  &  W.  at  p.  844. 
'i'hcre  is  also  the  case  of  Heald  v.  Ken- 
worthy,  111  Kx.  789,  containing  expres- 
sions by  I'aike,  H.,  which  are  concurred 
in  by  I'oiioek,  ('.  H.,  ami  Alderson,  11., 
which,  disconnected  from  their  context,  are 
liable  to  be  nnsunderstood.  See  Arm- 
•strong  r.  Stokes,  L.  K.  7  Q.  B.  at  p.  «09, 
stated  iii/ni.  The  case  of  lleald  v.  Ken- 
worthy  came  upon  a  demurrer  to  a  very 
badlv  framed  plea,  whii'li.  while  adndtting 


« 


the  •,"irelii'se  of  the  gooiji-  hii  the  aijnit  fnilii 
the  plaintiff!'  en  hehulf  nf  the  (li'fnnlinit ,  al- 
leged that  the  sale  was  made  to  the  agent 
on  the  agent's  own  credit,  and  that  the 
defeiiclant  had  ]iaid  the  agent.  There  was 
piolialily  sulliejeiit  ill  the  iilea  to  justify 
the  court  holding  as  they  did.  that  where 
a  ftriiieijxil  <ililhiiri;i  s  his  nijenl  In  pledge 
his  .Tedil,  ami  I  lie  latter  makes  a  purchiute 
nil  hin  liehalf,  and  theieby  creates  a  debt 
(that  is,  by  the  principal  to  the  seller), 
the  principal  is  not  discharged  by  jiay- 
incnt  to  the  aLfciit  if  tie-  money  is  not  paid 
over  to  the  seller,  unless  the  latter  by  his 
conduct  makes  it  unjust  that  the  ]irin- 
ciiial  should  Im'  sued  ;  as,  for  examide, 
where  the  stdler  by  his  words  or  comiuet 
induces  the  principal  to  U'lieve  that  a 
settlement  has  l>een  come  to  l)etween  the 
seller  and.  the  agent,  in  eonseipienee  of 
•.vhich  the  principal  pays  the  amount  of 
the  debt  to  the  agent.  The  whole  ease 
proceeds  on  the  groiimi  that  the  plea  ad- 
mits  that  the  goods  were   purchased  on 


564 


COMMENTARIES  ON  SALES. 


[book  II. 


non-delivery  of  hops  equal  to  sample,  sold  under  a  written  con- 
tract in  the  following  terms :  "  Sold  by  O.  &  T.  [the  defendants] 


thfl  credit  of  the  principal.  Thus  Margin, 
B. :  "  Here  the  dc/eiidunl  authorized  his 
agent  to  pledge  his  credit.  The  case  Uitrera 
from  that  where  a  servant  is  sent  with  the 
muney  in  his  hiiiul  to  make  a  purcliase, 
for  there  the  imtslcr  given  no  nulhority  to 
his  servant  to  i>!riiijc  his  credit."  So,  I'ol- 
lock,  C.  15. :  "A  perstni  employs  his  agent 
to  purchase  goods  for  him,  with  authoritij 
to  pledge  his  credit.  The  n<ient  docs  so, 
and  thus  creates  a  debt ;  and  1  agree  with 
the  remark  made  by  my  brother  I'arke  titat 
all  the  casi!s  in  which  the  principal  has 
been  held  to  ho  disi;har;?ed  are  cases  in 
which  the  seller  has  enuliled  the  aj^cnt  to 
misrepresent,  or  where  the  asfoiit  by  some 
conduct  adoiitcd  by  the  seller  has  placed 
his  principal  in  a  worse  .situation  than 
that  he  ouglit  to  bo  in."  I'arke  and  .\1- 
ders<)n,  15 15.,  arj  to  ll)e  ;san)i!  ciri'ct.  This 
is  very  far  from  sustainiii;;  the  s-cry  j^i'U- 
eral  hui^^uu'^e  of  Lor<|  Ellen borouj,'h  in 
Kymor  v.  Suwereropp,  1  (.V.inp.  109;  treat- 
inj?  the  word  "broker"  as  syncMiymous 
with  aqi'ut  or  factor.  In  a  n^te  (.Vddeud.i, 
p.  180,  (?.,  pi.  8)  to  1  Cuiip.  we  lind  tiie 
}'ollowin){ :  "  In  Kynicr  r.  .Suwercropp  a 
rule  for  a  new  tna!  was  diseharpft'd  on  the 
ground  that  the  defendant  had  not  prop- 
erly subMliUitiated  the  fii.!t  that  he  hud 
paid  thi'  broker  for  the  cofee  deliirr-il  to 
htm."  Tliis,  of  course,  of  itself  ;;reiitly 
weakens  the  force  of  I,ord  Kllenliorou|,'ii's 
mure  nisi  prins  rulinc. 

What  was  said  in  llould  i'.  Keiiworthy, 
10  Ex.  739,  was  based  on  tliu  fact  tiiat 
the  principal  had  authorixi-d  the  pledj;''  of 
his  (the  principal's)  cnidit,  by  the  a^eiit. 
This  is  evident,  not  only  by  what  we  have 
quoted,  but  by  the  case  of  tliu  foreij;n 
principal,  [)Ut  by  I'.irke,  I). :  "  Where  tlie 
seller  deals  witii  an  ai>i>i'.t  resident  in  tlijs 
couiitiy,  ami  actinj?  for  a  foreii^ii  principal, 
the  piesumptiou  is,  that  the  seller  does 
not  contract  with  the  forei;^iier  ami  trust 
him,  but  with  the  party  with  •■vhoin  he 
makes  the  barj;ain.  That  is  a  question  of 
fact  and  not  nf  law."  We  think  that 
here  we  find  k  bans  on  whi.-h  tie  M'itolo 
doctrine  can  rest ;  thu-i,  wlierc  the  prin- 
cipal has  authorized  tin-  ii^ent  to  pledf{e 
'lie  pri^  ipal's  ereilit  in  the  purcliase  of 
good.s,  "  il'  the  is)uduct  of  the  seller  w«dd 
make  it  unjust  for  him  to  call  ujmn  the 
buyer  for  the  money  ;  as,  for  example, 
whnro  the  nrinciiin,!  is  inducoil  by  the 
conduct  of  lUe  si-lter  to  pay  his  ag  'tit  the 
money  on  the  f»  Oi  that  the  agent  an>l 
Boiler  have  corn-  ti>  a  acttlement  oti  the 
matter;  or  if  nuv  repn-senteiion  to  that 
etfeet  is  made  In  he  seller  cither  by  words 
or  conduct,  the  seller  cannot  afterwards 


throw  off  the  mask  and  sue  the  principal. 
It  would  be  unjust  for  him  to  do  mj.  " 
Per  I'arke,  K.,  in  Heald  v.  Kenwortliy,  lo 
Kx.  at  p.  740.     "But  1  think,"  cjiitimu:* 
Parke,   B.,  "that  there  is  no  cat-e  of  Ui,.i 
kind  where  the   plaiutilf  has   Inmju   jire- 
eluded  from  recoveriu),',  uidess  he  liiw  in 
some  w.ay   contributed  either  to  den  ivc 
the  defendant  or  to  induce  him  to  ,i!hi 
his  position."     I$ut,  on  the  other  \uw\, 
whether  the  [irincipat  is  a  foreij;ii  re.-;iii.iii, 
a.s  in  Smyth  v.  Anderson,  7  <  •  B.  -!  ,  oi 
a  ho(ne  resident,  as  in  Armstron;^  v.  .Stokes, 
h.  U.  7  Q.  B.  y.m,  and  the  prineipd  in,., 
not    authorized  the  aj?ent  to   pled;;.'  th' 
principal's  credit,  and  the  credit  li.is  Ixen 
ijiven  by  the  seller  to  the  a^ent  (the  jiriri- 
cipal   not   Iteitif^   disclosed),    and   liy  ilic 
ajjeiit   to   his   principal  :    there,  it  it   !«■ 
sought  to  bind  the  principal,  on  his  tlis- 
covery,   we  think   the  Iani;uaj;e  of  burl 
Tenterden  and   ll.iyley,  .1  ,  in  'i'liomsoii  v. 
I)avt!iinort,  9   \\.  &  V.  8>i,  is  a[)p!ii'al)le. 
Thus,  l)y  the  former:  "I  take  it  to  ln'  \ 
general  rule,  that  if  a  person  sells  ),mo.U 
supposinj?  that  at  the  time  of  the  eontiaet 
he  IS  dealing  with  a  prineipvl,  hut  ut'tiT- 
wards  discovers  that  the  person  with  whom 
he  has  lieen  dealing  is  not  the  prih(  ipal  Im 
the  transaction,  but  a^ent  for  a  tliinl  |"'i- 
son,  thouf^h  he  may  in  the  mean  tiiiielniv.^ 
debiti'd  the  agent  with  it,  he  m  iv  iil'ler- 
wanls    recover  the  amount  from  t'le  real 
|>rincipal  ;  subject,  however,  to  tiusi|!iali- 
licatio!!,  that  the  statt;  of  the  ai-coiint  Ije- 
tween   the  primnpal  and  the  a^reut  is  not 
altered  to  the  prej'tdiee  of  ilu"  priiieijwl." 
And  l)y  Baviey,  .!.  :  "Where  a  |)urilias<' 
is  made  by  :in  agent,  the  agent  il "  <  net 
of  necessity  so  contract  as  to  m.iki'  liitii- 
self  ]»crsonally  liable  ;  but  he  m  iv  d)  sii. 
If  he  does  make  himself  per'-i^iially  liililo, 
it  does  not  follotv  that  the  principal  may 
noi  lie  liable  also,  sul)ject  to  this  ipialiiii'a- 
lion,  that  the  priiieip.il  shall  not  I.e  pre- 
judiced by  being  made  personally  lii''!'. 
if  the  jusii  ■!•  of  the  ca.so  is  that  le'  >leinM 
not  !>•■  pers(mally  liable.     If  the  priie'i|iiil 
hai  fuiid  the  ngnif,  or  it'  the  state  of  the 
accounts  between  the  ..,eut  here  aii'l  the 
prinitipal  wouM  make  it  unjust  that  the 
seller  'dionld  call  on  the  priui.'ipd,  I'n'  f*'' 
of  payment,  or  such  a  state  ol  ai'i'iiiiits, 
wo\i!d  Ih"  an  answer  to  the  action  I'MajjIit 
by  the  .seller  whore  he  had  looked  to  the 
responsibility  of  the  a'.;ent." 

Wc  think  this  fully  su.stains  the  div 
tiielion  wo  have  taken,  and  iImi  it  i^ 
sustained,  in  principle,  not  only  1'^'  ^^* 
vi'M-decided  cases  of  Smyth  i-  )ii'l'-^«*i 
r  '  .  B.  21,  and  Armstrong  v  *'<M^  '« 
li.  7  <^.  B.  598  ;  but,  keeping  »ii  vii'w  th? 


PART   VIII. 

to  P.  S.  & 
bales  hops 

flistinction  wi 
decided  cases 
or  in  this  coi 
very  able  K\t< 
scarcely  doc.s  j 
I'arke  and  A! 
which  they  »• 
rtocliiy,  lO  J,; 
shown  by  tin 
ihiv,  in  decidi 
case,  tieateil  ii 
cipal  had  auti 
'■:'dil;.  Thus, 
!'■,  dealing  wit 
is  clear  that  il 
t'lial  in  the  t 
iij'/((  t«  coiUrac 
t'le  dcfi^ndant  i 
iiioDey,  which, 
"v-r  to  the  plaii 
Is  not  excu.scd  f 
'ill's  are  jiani,  i 
"ct.s  induced  th 
liayrjteiit  to  tlieii 
tiMsts  file  agent 

will    COUsi,!,;,.   Iljll 

tlic  agent  alone 
•'"'!)'-r  cannot  [iro^ 
R'it  there  must  I 
'lie  iredjt,,!-   („   V, 

ihf  iiiifmnU  by  th 
ix-  treated  ns  a 
Wlierp  ;,  ereilitoi 
til"  d.htor  to  pay 
''V  alters  Ills  del,; 
""i'lsr  to  call  Up 
."i-Mint  of  the  de 
This  is  a  very 
"here  the  creoit 
seller  fotheageii! 
i'lg  alone  with  tie 
1"»"   princifial. 
?'"'V(  Jirincipal   ii 

tile   seller   seek    t( 

Would  clearly  U'  v 
''if  the  iirincipal 
"  flie  state  of  f!i 
»niild  ofherwis 
''i"i  to  do  so.      ... 
ist-'ii  ill  Stnyth  , 
«"'!  in  Armstrong  - 
■Wf*.  wlicre  thj-v  wi 
"•"  K  most  wis^i 


have   \m 


»VrfN  HP  Iifive   hei 
the  I  \(  epti,,,,  „f  ^ 

l»iis;,[,,,|vhenMor.  h\ 
''•''isi,,,,  in  H.ald 
ra'  (and  which 
Ifniik,  ;,y  thfj  alw 
•f'ls.  «c  make  e'e, 
«:<U'V  to  Mich  misin 
'"'-^PIToves,  we  ei.i 


PART  VIII.] 


AGENCY. 


665 


to  p.  S.  &  Co.  [the  plaintiffs],  for  and  on  account  of  owner,  100 
balea  hops,"  etc.,  signed  by  the  deft  luianta,  '^  U.  &  T."     At  the 


(li.stinctioD  we  havpinade,  by  al!  Use  well- 
lii'ciilecl  casf.<  on  tln!  qufHtioii  in  Kiij^'IiiikI 
or  ill  this  country.  >Vc  think  tiiut  that 
very  able  Ktij^li.sh  judw!,  Hliuklmni,  J,, 
si'iiiUL'ly  (ioi's.  ju.stiti;  td  rolluuk,  I'-  U.,  aiui 
I'arke  uiul  Akltisdii,  IMi.,  in  tht  \ii'ws 
wiiii'h  tln\v  t'\.i>ir.s.si'd  in  Hciilti  y.  Ken- 
wuctliy,  111  Kx.  739,  7i5.  .\s  we  have 
sliowii  hy  till'  I'Xtrurts  we  hnvv  niuiii', 
iin  y,  III  dcoiiii!!^;  on  llie  dftnurn'r  in  the 
!.:isi',  ticuti'd  it  lis  a  case  wlii'ii^  the  juiii- 
.■i|iid  liail  authijiizwii  the  j.icd^'e  i  i'  liim 
itrilit,  Tims,  in  a  few  vmids,  AlU'iTs'jn, 
15.,  iloalinj^  wiili  that  fjucslion,  sjiys  ^  "  It 
is  i.'lcar  that  ihe  delL'iul.int,  who  is  priii- 
(•i|iii!  in  tht!  transaction,  (itith'miuf  'iic 
wj'/if  li'  contraci  t/w  dd>l  on  his  ncoi\int ; 
t'lc  (Ufi-ndant  afterwards  paiii  his  agent 
iiioiii'V,  whicli,  lioivevur,  lu'  liid  not  ji'iy 
i.vi-r  to  the  jilaiiitiirs.  Now  itii'iiefi,'iidant 
ir,  not  t'xciisetl  from  scfiiig^hat  tin-  [ihiin 
tilfs  are  pani,  unless  the  latter  hy  llieit 
act.-:  iudueed  the  deft'ndant  to  niai<(  the 
^liiyineiit  to  their  aj^eiit.  Where  tin'  m'Uit 
tiii'-tH  tiie  a>;ent  only,  and  says  that  he 
will  I'onsider  him  as  the  only  narty  lial)le, 
till'  iVfifnt.  alone  is  rcs|)oiisilile,  and  the 
M'llfr  eannot  iiroi'cid  npainsttlie  ['rineipa!. 
But  there  must  he  .smno  act  on  the  [laii  .>f 
till-  I  reiiitor  to  warrant  ns  in  sayin„'  llud 
'he  imifment  by  ttn:  ilrdtor  In  liix  injoil  is  to 
/'.'  Inalfd  as  a  piymtnt  lo  the  cmiitor. 
Where  a  creditor  hy  his  coiidiict  induces 
till'  ilehtor  to  pay  a  third  party,  and  there- 
liy  alters  his  delitor's  iiosition,  it  Hould  he 
lu.iii.-r  to  call  upon  tlie  dehtor  to  pay  the 
.iiiii.iint  of  the  deht  to  his  cieditor." 

'I'his  is  a  very  dill'erent  ca.ie  {rons  that 
wlnre  the  ci'i'oit  h.is  heen  j'iveii  hy  ttie 
wlier  to  the  a;{ent,  and  the  jirii.eipid,  deai- 
iM<r  alone  with  tlie  a;,'ent,  as  a  jiriiicipal  or 
7i( ',v,  principal,  makes  [layneuts  to  t'.ie 
nuisi  prim^ipal  \»  ^oml  fait'i.  There,  li 
till'  seller  seek  to  hind  the  prihcipiil,  il 
Wiiiild  clearly  In-  most  "  unjust  "  t<.  do  so, 
'il  till!  principal  hius  pai''  the  agejit,"  or 
if  th.'  state  of  the  ini  »ts  m-tveeii  th.ein 
wnn'd  otherwiMP  r»u<ti  I*  ih(-<|liitahle  for 
him  to  do  so.  iSu«-U  a  state  of  la- 1'-;  "x- 
isted  ill  Smyth  ; .  Anderson,  7  C  H  21, 
ami  in  AnnstronR  v.  .Stokes,  I,.  R.  7  t^  B. 
,WS,  wl'icre  they  were  dealt  with,  and,  we 
flii'A  most,  wiafly,  in  accordancr  with  the 
tWws  we  have  herein  expressed.  With 
the  iveption  of  what  we  think  tc  tx?  a 
r/ii'.i[i;iieheiisiot.  hy  Hla<'khurn,  .1.,  of  the 
'lt'ii>iiiii  in  Ileahl  V.  Kt-nwortliv.  10  K«. 
7.t:'  (and  which  misiipprehe?»»i/>n  we 
ibiiik,  'i,y  tho  aliove  stateir.-n?  uu-i  ex- 
*.i'i  's,  we  make  ctear),  and  of  whi'  h  'n««, 
owiii/  to  onch  inisini|f«~«ion,  he  evidently 
*li'.:ipproTtw,  we  ei.iir«ij  ct.ucur  with  tbe 


followiiij:;,  whicli,  like  the  case  of  Smyth 
t.'.  Anderson,  7  V.  H  '21,  sustJiii.s  the  din- 
tiiii-iiuii  wu  hav.  taken.  Blackburn,  .1  , 
says:  "i'arke,  B.,  lays  down  jjeiieraily 
lliat  'if  u  person  order,  an  a^enl  to  make 
tt  purcliase  for  iiiin,  he  is  lioi-nil  tu  see  that 
the  ij/,'iit  pays  the  lieht  ;  and  th"  ^■'•'■■■K 
the  a^jiMit  money  (or  that  iu>rpo.-.e  does  not 
'iniuunt  to  [laynient  unless  the  agt  in  piiys 
it  acc.jrdiiigiy.'  After  coinnientiiij.;  on  sev- 
eral of  the  cases  already  referred  to,  )■« 
concludes  :  '  I  tliiiik  that  there  is  no  au- 
thority for  Hiiyiiifj;  that  n  payment  made 
to  the  a(,'cnt  ]>recliidi's  the  seller  from  iv- 
(overiiiji  li-oiii  the  principal,  unless  it  ap- 
jwars  that  he  has  irdnced  'Am  iirincijial 
to  lielieve  that  a  settlcMieilt  hflfl  been  made 
witii  tiie  af/eiil.'  //<•  shtlis  t/tis  us  c/nier- 
a!hj  Inn-  whi-<rvir  a  priurijml  has  iil/oireil 
h hi; Si  If  til  tic  7.'iii(li-  Il  fiiilij  to  a  Contract, 
and  iiuihis  no  cxi.c;il'.i>n  us  to  the  cnsi-  irktre 
the  iilii,-r  ,v.'//»^  miulc  the  C'litruct  with  the 
fiiicii'  lili.riiia  h'lii  il'  if  Ilif  prijicijiiil,  and 
C'liili'iiud  ill  siirli  lifl.if  till  affir  the  }Hiih 
viciit  ir-'s  imiilc.  [Ilete  is  an  intimation 
of  tin'  exact  distiiii  tion  which,  as  we  have 
jioint'd  out,  should  be  made.  |  He  cer- 
tainlj  docs  not  in  terms  say  that  there  is 
Jiu  (iiiiiiificaiio:i  o!'  the  principle  he  layB 
down  when  appli  alile  to  sucli  a  c  se  ;  but 
—  rc'collect  Ihiw  curel'ul  I'arke,  B.,  always 
was  ',0  !ay  dfiwn  wliat  he  thoii/.;lit  to  i>e 
the  lav,  fully  p-iid  with  accuracy  —  we 
think  ',!ie  coun.se!  for  the  plaintid'  were 
jiislitii'd  in  ainiiiiij;  that  Parke,  B., 
llioii^ht  the  exription  did  not  exist. 
And  this  ir,,  i!i  our  opinion,  a  wiij^hty 
autii<irity  in  f..vor  of  the  plaintil!  -.  con- 
teiiti'ili,  more  e',|i<'ciiilly  a;i  roUoik,  (.'.  B., 
as.scnls  iii  his  judgment  to  the  remark 
td'Mwn  out  by  I'a'ke,  B.,  dliiiiij.'  the  ar- 
j('iiiien'.,  and  ■ilt>i\Minis  more  el;ilK)rately 
st.ited  liy  him  in  hi'.  jiid>;iiii  iit.  And 
Aldcison,  11.,  Ill  his  judi^iiMiit,  a|ipears 
eniireh  to  assent  to  the  jad^iiieiit  iif 
I'r-ike,  B.  We  tllit.li  th'it  We  cold  I  not, 
witli<vut  strnininjj  the  evidenci ,  I'.old  in 
(his  case  thut  the  plaiiiitti  \i.  c,  the 
M'llerl  liait  induced  tlo'  detuidants  jlt'e 
|^iiici|>aiNj  to  btdieve  that  he  [the  p'ain- 
l«tf]  had  settled  witli  .'.  A  <'  liyder  [the 
■i^eiitsj  at  the  time  when  the  defendanti 
paid  them.  This  7iiakes  il  iifcfssury  to 
ilitermiiie  vficfhrr  w  ai/rft  in  what  ine 
rhiii/.  waji  I  III  opinion  of  Pnrke,  h.,  uc 
.liiirmtd  in  hy  PilUA\  (.',  li.,  nvd  At'lrr- 
.'■((.  li  We  thi  ik  that,  if  tlie  ri»;id  rule 
thus  l.il'l  down  <»tie  to  b«'  Itppiiri  tu  those 
wb''  w»T«*  only  discovrre»t  to  lie  |.iin('i|iuU 
aftr-r  they  iind  fairlv  {Mid  the  prii'e  to 
those  whom  tiie  scudoi  U'li' ved  to  \n-  th* 
priucipalt.,  and  lu  whuiu  aluue  the  votidor 


566 


COMMENTAUIfiS  ON   SALES. 


[book  II. 


trial,  the  plaintiffs  contended  that  the  defendants  were  personally 
liable  on  the  contract,  and  evidence  was  admitted  to  show  that, 


avo  credit,  it  would  picxJace  intolerable 
ardsliip.  It  may  be  suici,  pihaps  truly, 
this  is  the  coiisuquence  ol  that  which 
might  ori^iiiully  have  been  a  mistake  in 
allowiii<(  the  vendor  to  have  recourse  at 
iill  against  one  to  whom  ho  never  gave 
credit  [See  our  agreement  with  this  in 
our  comments  as  to  the  mistaken  Iwsis  on 
which  the  non-liability  of  a  foreign  princi- 
pal hits  been  put.  Ante,  pp.  515,  51t),  n.J, 
and  thiit  we  ought  not  to  establish  an 
illogical  exception  in  order  to  cure  a  fault 
in  a  rule.  Hut  we  Knd  an  <-xce|)tion  (more 
or  less  extensively  expressed)  always  men- 
tioned in  the  very  cases  that  lay  down  the 
rule ;  and  without  deciding  anything  as 
to  the  case  of  a  broker  who  avowedly  acts 
fur  a  principal  (though  not  necessarily 
named),  and  contining  ourselves  to  the 
present  case,  which  is  one  in  whitdi,  to 
borrow  Ijonl  Teiiterden's  phrase  in  Thom- 
son V.  Davenport,  'J  li.  &  C,  at  p.  8t>,  the 
plaintitf  sold  the  goods  to  Kyder  &  Co., 
'  supposing  at  the  time  of  the  contract  ho 
was  dealing  with  a  principal,'  wo  think 
that  such  an  exception  is  established.  We 
wish  to  be  unilerstood  as  expressing  no 
opinion  as  to  what  would  have  been  the 
ell'oct  of  the  state  ol  the  accounts  between 
the  parties  if  .1.  &  O.  Ryder  had  been  in- 
dul)ted  to  the  defendants  on  a  separate 
account,  so  as  to  give  rise  to  a  set-olf  or 
mutual  credit  In'tween  them.  Wo  con- 
Hne  niir  decision  to  the  case  where  the 
defendants,  after  tlio  contrcict  was  made, 
and  in  conseiiuenco  of  it,  hi)ii(t  fide,  and 
without  moral  blame,  jjaid  .1.  &  (>.  Kyder 
at  a  time  wlnii  the  plaintitf  still  gave 
credit  to  J.  &  tJ.  Ryder,  and  knew  of  no 
one  else.  We  tliink  that  utter  that  it  was 
too  late  for  the  plaintiff  to  come  upon  the 
defendants.' 

Willie  tnlly  con.Mirring  with  the  gen- 
eral reasoniny  of  Bluikburn,  •!.  (une,  we 
think,  of  \.\\f  very  -tiilost  judges  which 
England  has  pcuduceit I,  ■•u\\  with  tlic  de- 
cisions in  Smyth  v.  Anderson  and  Arm- 
strong V.  Sloken.  which,  we  think,  estalt- 
lish  tile  law  as  wh  have  herein  stated  it, 
and  wliii  li,  we  tliink,  is  not  affected,  as 
we  have  siiown,  by  the  ianguagi',  properly 
understood  and  applied,  used  iiy  Pollock, 
C.  B.,  and  Parke  ami  Alderson,  HI).,  in 
lleald  K.  Kenworthy,  yet  we  think  the 
prlncip^»•,  .IS  we  iiave  stated  it,  and  as  it 
aci;ord.s  with  the  actual  rniui  ilicitlniih  of 
Smyth  v.  Anderubs  and  Armstrong  v. 
Stokes,  ri-ndevi'd  menn'cessary  the  iifsita- 
tion  l)V  Blii<'ki>nrn,  ,).,  as  to  tin-  etiect  of 
the  rule  laiil  iecisinn  in  Arnwtrong  o. 
Stokes,  wlicr*-  tlie  i|U<'stion  anws  in  con- 
nection with  "a  set-otf  or'  mutual  credit' 


between  tlie  principal  and  the  agent ;  or, 
OS  we  think  we  have  more  properly  desig- 
nated him,  the  intermediate  or  qu<m  priu- 
ci|)al.      Where   the  credit   has   not  Ijeen 
given  to  the  party  for  whom  the  gooiN 
are   intended    (generally,    but    not    with 
strict  accuracy,  called  "the  principal"), 
but   has   been   given   to  the  actual  ]iiii'- 
chaser   (who,   in   a  sense,    is   callud   tlie 
"agent  "),  and  the  "agent"  has  iioi,  paid 
for  the  goods,  the  liability  of  the  "iirin- 
cipal  "  to  pay  for  the  goods  (althoiigti  in 
principle   unsound,    where,    for   instaine, 
the  credit  has  been  given  by  the  seller 
to  the  agent,   and   bv  the  agent  to  the 
ultimate  purchaser,  the   "  princiiial  "),  is 
put  upon  the  ground  that  it  woulil  b<!  au 
injustice  for  the  seller  not  to  get  his  pay- 
ment, if   by  doing  so  from  the  ultiiimte 
purchaser  or  "iirincipal"  the  latter  would 
thereby  be  put  to  no  loss,  or  suffer  \w  in- 
justice.     Thus,    in   Thomson    v.    I'lvcn. 
port,   9   B.   &  C,   at  p.  81),   Ray  lev,  .1., 
says .    "  It  is  said  that  the  seller  oii;{lit  to 
have  asked  the  name  of  the  principal,  and 
charged  him  with  the  price  of  the  goixls. 
By  omitting  to  do  so,  he  might  have  lost 
his  right  to  claim  payment  from  the  |iiiii- 
cipal,  liad  the  liittct  paid  the  ngriit,  m;  IukI 
the  slate  of  tlu:  ao'nnnls  betwren  Ih'  /inn- 
ciptil  and  the  iigiat  been  such  as  Id  mnh. 
it  unjust  that  the  former  should  he  rullnl 
upon  to  make  the  imymenl.     But  in  a  ciuse 
circumstanced  ns  this  case  is,  where  it  does 
not  appear  Init  that  the  man  who  has  had 
the  {»oods  has  not  paid  for  them,  wliat  is 
*he  justice  of  the  case?     That  he  siiniilil 
pay  for  them  to  the  seller  or  to  the  solvent 
agent,  or  to  the  estate  of  the  iiisnlvi'iil 
agent,  who  has  made  no  payment  in  re- 
8])ect  of  the  goods  ?    The  _;«.</(«  of  the  <-ii<f 
is,   as  it  seems  to  me,   all   on  one  siile, 
namely,  that  the  seller  shall  be  paiil,  ;in'l 
that   the   buyer  [the   principal]  shall  i* 
the  person  to  pay  him,  provided  lie  has 
not  paid  anybody  else.      Now,   npen  tlif 
evidence   it   appears   that  the   dclcn.laiit 
had  the  good's,  and  has  not  paid  lor  tlierit, 
either  to  McKune  [the  agent]  or  to  the 
iilaintilfs,  or  to  anybody  else.      H'-  will  l* 
liable  to  pa\  for  them  either  to  the  plain- 
tiffs or  to  McKiine's  estate.     The  instii'i' 
of  the  case,  as  it  seems  to  mo,  is,  tliiit  he 
should   pay  the  plaintiffs,  who  were  lln' 
sellers,  and  not  any  other  |>erson."     ih'''*' 
the  liability  of  the  ultimate  |nirclias.  i  iihc 
"principal  ")  is  put  U)>on  the  gmuM'!  that, 
as  It  would  be  inmiaterial  to  bin;  i' li.mi 
he  paid,  the  "justice  of  the  case     ("In'  '"• 
the  way  the  law  was  made)  wonlii  ivi|Uire 
that  he  should   fwv  the  seller,  if  I'v  duni),' 
so  he  would  hii'iwelf  suffer  no  iiijustice  iru- 


PART   VIII.] 


AGENCY. 


667 


by  the  custom  of  the  hop  trade  in  such  a  contract,  if  the  principal 
bo  not  disclosed  at  the  time  ol  making  the  contract,  tlic  broker  is 


ing  either  out  of  hU  having  [mA  th<!  agent, 
or  t'ruin  the  stute  of  tlte  accounts  betwcun 
titcin.  This  rule,  fountled  simply  oi\  thu 
view  of  abstract  Justice,  wuuiit  Hpply,  as 
it  is  in  etfect  put,  to  "u  set-oil  ur  niutiml 
credit"  between  the  principal  and  agent, 
ua  it  would  to  a  payment  by  tlie  princifial 
to  his  agent.  We  think  the  mutter  might 
be  well  illustrated  thus  :  A  mercliunt  in 
lloston  writes  to  a  dealer  in  New  York  to 
ship  him  1000  nieces  of  gray  cot  •.■)ns.  The 
New  York  dealer  had  previously  iHiught 
on  credit  10,000  nieces  of  a  ni;inuf>ii.'turer, 
and  out  of  these  he  ships  the  ISoNton  mer- 
chant the  1000  pieces  ordered,  at  a  price 
Siktisfactory  to  the  Boston  merchant.  The 
New  York  dealer  fails,  leaving  the  manu- 
facturer unpaid.  Obviously  there  would 
be  no  liability  of  the  Boston  nit-rchaiit  tir 
the  manufacturer,  (or  there  would  be  no 
ground  whatever  for  claiming  that  there 
was  any  privity  between  them  ;  the  two 
transactions  being  entirely  dill'erent  and 
nideiiendent  of  each  other.  But,  next: 
the  Boston  merchant  writes  the  New  York 
dealer,  or  commission  merchant,  or  (actor, 
to  ship  him  1000  pieces  ol  gray  cotton, 
and  the  New  York  dealer  goes  ti)  a  manu- 
facturer and  buys  the  sjK'cilic  lOOO  pieces, 
on  his  own  credit,  and  ships  them  to  the 
Boston  ni'M chant.  The  cases  such  as 
Thomson  v.  Davenport,  9  B.  At  C.  78; 
Moore  V.  (iemeiitson,  2  Camp.  '2'2  ,  Pitt- 
erson  V.  (ianda.sei|ui,  1.0  Kast,  t)'2;  Kailton 
I'.  Hodgson,  cited  in  Paterson  i>.  (iaiulas- 
equi,  1,5  Kast,  07,  —  hold,  that  here  the 
Boston  merchant  is  liable,  as  an  undis- 
closed principal,  to  the  maniilacturer,  for 
llie  purchase  by  "the  .igent." 

\Ve  think  the  principle  of  these  eases 
(more  than  doubted  by  Blacklmrn,  .1.  in 
Armstrong  r.  Stokes),  is  unsound  ;  and 
tliat  wlievu  A.  gives  no  autiiority  to  I!,  to 
|>liiige  his  credit  to  C,  'inil  <".  i;ives  credit 
to  B.,  and  15.  to  A.,  there  is  no  privity  of 
contract  iK'tween  A.  and  C.  ;  and,  theri'- 
fore,  on  the  failure  of  B.  to  |>ay  (  .,  there 
is  no  inilebtedni'ss  by  A.  to  C  ;  and  the 
cases  which  hold  otherwise  are  no  siuandi-r 
law  than  were  the  cases  whndi  hold  ror  a 
Imndred  years,  that  ]ni  -ies  who  [mrtici- 
|Mtc  in  the  piolits  are  iiecessarilv  iNirtiiers, 
Ulilil  the  lullacy  of  the  position  wa>  -^howii, 
and  the  law  n-veraed,  in  Cox  v.  llii.kmau, 
8  II.  L  C.  208. 

But,  as.summg  that  the  law  is,  as  so 
many  ciu»es  state  it  to  Ik',  then,  we  tiunk, 
It  is  still  clear,  that  where  tIic  ultimate 
jiiirchaser  or  principal  is  heid  liable  to 
the  original  seller,  "justice"  reipures  that 
lie  shall  lie  only  so  liable  by  not  Unng 
"piejudiced  by  being  maile  iwrsouully  lia- 


ble,' where  cither  **  the  principal  hoa 
|)aid  the  agent,"  or,  where,  as  in  the  caan 
of  a  "setolf  li»r  mutual  credit  between 
them  [using  the  language  of  Blackburn, 
J.,  in  Atnistiong  *-.  Stokes],  (ho  state  of 
the  accounts  between  tlie  agent  here  ami 
the  principal  would  make  it  unjust  that 
the  .seller  shoultl  call  on  t!ie  principal  ;  ' 
and  Ihal,  in  either  ol  such  cases,  "the 
(act  of  |iayment,  or  such  u  state  of  oc- 
counls,  would  be  an  answer  to  the  action 
brought  by  the  .seller  where  he  has  looked 
to  the  |•espon^ibility  ot  the  agent.''  Per 
Bayley,  J.,  in  Thomson  i'.  liaveiiport,  0 
B.  i  I'o.,  at  p.  88.  This,  in  elh'ct,  was  ad- 
milted  in  Moore  e.  Cleinentson,  'i  Camp. 
'2'J,  liy  the  plainiilf's  counsel,  Park,  who 
"allowed,  that  i(  the  deleiidants  were 
neither  expressly  told,  nor  had  reason  to 
believe,  that  in  this  action  tireen  acted 
only  as  an  agent,  thei/  ivnr.  cutilled  to 
II  !■  sri-oll'  irhii/i  (hn/  flnniifd."  But  ho 
claimed  that,  an  express  noticeof  the  plaiii- 
tilf  l>eing  the  owner  of  tin'  goods  having 
been  i^ivcn  to  the  defendant,  the  right  of 
set -oil  betwteii  the  plinci|>al  and  agent 
did  nut  att  ich.  Lord  Klieiiliorrmgh,  iu 
that  case,  t'.M),  had  a  i|Ualili('ation  of  the 
right  of  set'ulf  with  a  too-couliiied  limita- 
tion, which  may  have  helped  to  establish 

II  wjiiiig  rule.  See  als(>,  Coat«:s  v.  Lewes, 
1  tRinp.  414. 

On   further  resennh  we  '  id  that  the 
very  piiin-iple  foi  \»hirli  we  have  contendixl 

III  tlii.s  note,  but  which  later  ca.ses,  front 
the  msi  /iriHH  case  ol  Kynier  c.  .Siiwer- 
ciopp,  1  Camp.  110  (III  wliii'li  Lord  Kilen- 
biMoiigli  used  the  language  we  haM-i(Uoted 
(loni  him)  down,  have  tended  to  contuac, 
was,  in  elicit,  well-estal  llslied,  as  regards 
the  light  ol  set-ol!,  over  a  huiidr<'d  years 
ago.  Thus,  in  liaboite  ,liin.  I'.  Willi, iins, 
ut  the  sutings  alter  Micliaelnias,  1785, 
citeil  ill  a  note  to  (leoige  r.  Cliigett,  7  T. 
I{.  Ittio,  which  was  an  a>'tioii  hn  the  value 
of  goods  sold  to  the  dejiiidaiit  by  means 
of  till-  house  ol  U.iliilie  .Sen.  &  Co.,  luclors 
to  the  plaititlll  ;  the  deleiijalit,  the  V);n- 
dee  ol  the  ;{oods.  Set  oil  a  debt  due  to  hilll 
jroiii  iialH>ne  k  Co.,  the  l.u  tors,  upon  un- 
ntiier  aecoiiiit,  alleging  thai  the  plaiiitiir 
had  not  apjieared  ai  all  in  the  tiaii.saclion, 
and  that  credit  had  been  given  by  HalM)ne 
&  !'■■.,  the  (actors,  ami  not  by  the  plain- 
till'.  Lord  Mttunfield,  C.  J.  :  "Where* 
laetor  dealing  h>r  a  principal,  but  conceal- 
ing tltjit  pninipai.delivei  -.Hoods  in  his  own 
nanii-,  ihe  |H-rsoii  contracting;  witli  him  lia.<t 
a  ii;sd>t  to  consider  liini  to  all  iiiti  nt-  and 
pur|H>ses  as  the  princi|(iil  ;  and  though  the 
real  principal  niuv  apfM*ar  and  bniii;  an  ac- 
tion  upon   tlutt  ccAtracl  against  ihe  pur- 


■    .    I.   :'■ 

;      ■       It 
'              '   \ 

!'  1 

568 


COMMENTARIES  ON  SALES. 


[book  II. 


in  fact  regarded  as  the  principal,  and  is  held  liable.    It  was  ad- 
mitted tliat  the  plaintiffs  had  not  asked  the  dul'endants  fur  the 


chaser  of  the  kocmIh,  yet  that  purchHHer  niny 
set  oir  any  cluirii  t<u  iiiuy  have  u^ikiiist  the 
factor  ill  iinHwt-r  tu  lie  (leiiiitiid  i>(  tlio  [)i'iii- 
cipal.  Till!*  huH  l(.ii){  been  scttiutl."  In 
Bityley,  v.  Murluy,  LmikIou  Sittings,  nfter 
Midi.  i788,  liUi'd  Kuiiyoa  recognized  the 
law  of  this  case. 

The  Hiitiie  point  wim  also  ruled  l>y  Lord 
Kenyon  in  Stiu'cy,  Ko.ss,  and  otliers  i;. 
Deey,  London  Sittiiif^s  after  Mich.  178U, 
in  oiisuinpsit  for  goods  sold,  where  a  set- 
off was  pleatit'd.  The  plaintilfs  jointly 
carried  on  trade  as  gioceis,  hut  lioss  was 
the  only  ostensible  person  engaged  in  the 
business,  and  appeared  to  the  world  as 
solely  interested  therein.  By  the  terms  of 
the  |)artneiNhip,  Koss  was  to  be  the  appar- 
ent trader,  and  the  others  were  to  remain 
mere  sleeping  |Nirtners.  The  defendant 
was  a  iKjticy  broker,  and  being  iiidetited 
for  groceries  to  iioss,  as  he  conceivi  J,  he 
elfecled  insurances  and  paid  preiniiiins  on 
account  of  Uoss  solely,  to  the  amount  of 
his  debt,  under  the  idea  that  one  demand 
might  Ih;  set  olf  against  the  otiier.  lioss's 
alfuirs  being  much  deranged,  |)aynioiit  of 
the  ninney  due  Ironi  the  defendant  was 
demanded  by  the  linn,  ami  was  refused  ljy 
him,  upon  the  ground  of  his  having  l)een 
deceived  by  the  other  partners  keeping 
back  and  holding  out  Hoss  as  the  only 
person  concerned  III  the  trade.  Lord  Ken- 
yon, C  J.,  Wius  of  opinion  that,  as  the 
uefcnilant  had  a  goml  defence  by  way  of 
set-olf  as  against  Koss,  and  had  l>ccn  by 
the  conduct  of  the  plaintilfs  led  to  be- 
lieve that  Koss  was  the  only  person  he 
contracted  with,  they  could  not  now  pull 
otf  the  mask  and  claim  payment  of  debts 
supposed  to  be  due  to  Iioss  alone,  without 
allowing  the  parties  the  same  advantages 
and  eipiities  in  their  defence  that  they 
would  have  had  in  an  action  brought  by 
Koss.  The  same  principle  is  sustained 
(A.  I).  171(7),  in  (ieorgo  v,  Clagett,  7 
T.  H.  3r)'.t,  where,  on  principle,  as  well 
as  on  the  authority  ol  lialH)ne  v.  Wil- 
liams {sit/ird),  it  was  lu-ld  by  Lord  Ken- 
yon, allirmed  by  the  lull  court,  that  where 
goods  had  Ix-en  bought  from  a  factor,  the 
"principal,"  or  purchaser,  had  the  right 
of  setting  otf  any  claim  tor  set-olf,  as  lie- 
tween  him  and  the  factor,  in  an  action 
by  the  seller  against  the  purchaser  for 
the  price  of  the  gixnls.  These  coses, 
coupled  with  the  prin  iples  estalilished  by 
Smvth  V.  Anderson,  7  C.  B.  21,  and  Arni- 
st.oiig  V.  Stokes,  L.  H.  7  i).  H.  5i>8, 
thoroughly  sustain  the  rule  ami  its  r]uali- 
ficati(m  as  stated  by  us  in  this  note.  In 
Serimshire  v.  Alderton  (a.  n.  174.1),  the 
purchaser  from  a  factor  was  notihed  by 


the  seller  not  to  pay  for  the  goods  ;  but 
he  did  so,    iiDtwillisianding      The  chid 
justice  (Sir   VVni.    Lee)    was   of   opiniou 
that   there   was  a   leiiiLMly   of    the  seller 
against  the  buyer,  provided  there  was  no 
payment  to  the  factor.    But  the  jury  tiMind 
otherwise,  and  persisted  in  tlicir  verdict. 
On  a  second  trial,   lid'oic  a  special  jury, 
the  chief  justice  declared  that  a   lactoi's 
sale  dues  by  the  general  rule  ot  law  civalu 
a  contract    between    the   owner   and    the 
buyer.     But  the  jury  again  found  lor  the 
deleiidunt,  and  on  bi'iiig  asked  their  rea- 
son, put  it  on  precisely  the  .same  ground 
that  we  have  done,  namely,  that  wluru 
the  seller  gives   the  credit  to  the  factm, 
and  the  factor  gives  the  credit  to  tie;  ulti- 
mate purcha.ser,  there  is  no  contract  lie- 
tween  the  original  .selh^r  and  the  ultimate 
|iurchaser,  or,  as  they  thought,  "no  credit 
was  given  as  lietween  the  owner  and  buyer, 
and  that  the  latter  was  answerable  to  the 
factor  only,  and  he  only  to  the  owner. " 
In  such  a  ca.se  as  we  have  put,  we  .shall 
l>e  surprised  if  such    a  doctrine  docs  not 
become  well  established.      The  nim  iirius 
case  of    Moore   v.  t'lenient.Hon,  2  Caiiip. 
22,   iicr  Lord    Kllenborough,    we   do   not 
consider  well  decided,  aiul  we  tloubt  very 
much  if   the   decision    would    have   been 
allirmed  by  the  full  court,  any  nmre  than 
that  other  doiibttul  decision  of  the  sanio 
learned   juilge  (Kynier  v.   Suwercropp,  1 
Camp.   109  ;    180  c. ),  .seems  to  have  hvw.. 
In   Moore  v.  Cleinentson,   where   the  de- 
fendants claimed  a  set-olf  as  between  them 
and   the  factor.  Lord  Kllenborough  held, 
correctly  wo  think,  in  accordance  witii  the 
view  expressed  in  this  note,  that  if  the  ile- 
fendants  had  only  knowleilge  ot  tln'  seUer 
to  them  being  a  fai'tor,  that  would  not, 
as  between  them  and  the  original  sellers, 
deprive  them    ol    their  right  of   set -otf; 
but    the  fact   that,   the    purchase    having 
lieen  duly  made  and  the  set-oil  having;  ex- 
isted, the  defendants  having  casually  a.4- 
certained  from  the  factor's  clerk,  "iilier  a 
considerable  portion  4d  the  goods  had  In'cn 
jireviously  delivered  '  by  the  laitor  to  the 
purchaser,  this  deprived  the  purcliaseis  of 
their  right  to  the  set-olf     We  think  that 
their  right  to  a  set-olf  by  a  kiiovvleilu'e  so 
gained  at  smdi  a  stage  of  the  proi'eeilin;,'s, 
WHS  not  alfi'cteil  at  all,  or,  at  the  very 
utmost,  on  Lord  KlIcMlMMoiigh's  own  ImM- 
ing,  it  could  only  be  all'ected,  it  at  all.  ;"■» 
tanto.     But  we  as  much  doulit  tlii<  part 
of  the  holding  in   Moore  v.  CleuientMin, 
2  Camp.  22,  as  we  do  that  ot  Kynur  v. 
Suwercropp,   1  Camp.  lO'J,  180  c",  as  up- 
plicable,  at  least,  to  the  case  of  a  factor  or 
commission  merchant. 


PART  VIII.] 


AOENQT. 


569 


name  of  their  principal,  but  there  was  evidence  to  show  that  the 
plaintitTs  knew  he  was  a  foreigner.  The  verdict  and  judgment 
were  for  the  phiintiiTs.  The  Queen's  lionch  Division  held  that 
tiie  contract  being  "  for  and  on  account  of  owner,"  the  brok- 
ers on  the  face  of  the  contract  were  not  liable  ;  and  that  the  cus- 
tutn  was  so  inconsistent  with  the  contract,  that  evidence  of  the 
custom  was  inadmissible.  Otherwise,  the  contract,  as  affected  by 
tiie  custom,  would  bo :  *'  We  have  sold  for  our  principals,"  but 
"  we  have  not  sold  for  our  principals,  but  for  ourselves,"  which 
would  be  a  direct  contradiction.  They  therefore  reversed  the 
judgment.  This  transparently  bad  reasoning  did  not  prevail. 
The  real  contract  as  explained  by  the  custom  was:  "We  have 
sold  for  our  principal,  but  in  the  absence  of  a  disclosure  of  our 
principal  at  the  time  of  making  the  contract,  then  we  make  our- 
selves personally  liable."  There  is  nothing  contradictory  or  in- 
consistent in  this.  And  so,  on  appeal,  the  Court  of  Appeal  held. 
Fry,  L.  J.,  puts  the  matters  very  clearly  and  briefly,  thus :  "  If 
the  objection  were  now  being  taken  for  the  first  time  to  the  admis- 
sibility of  evidence  of  a  custom  to  charge  the  brokers  as  princi- 
pals in  the  event  of  non-disclosure  by  them  of  their  principals  at 
the  time  of  the  contract,  1  should  have  paused  before  deciding  in 
favor  of  its  admissibility.  Ihit  that  proposition  is  now  clearly  es- 
tablished ;  and  we  have  only  to  consider  whether,  by  the  custom 
of  the  triide,  the  defendants  were  liable  from  the  beginning  as 
principals,  and  whether  such  a  custom  contradicts  the  written 
contract.  1  can  entertain  no  doubt  on  either  |)oint.  IJy  the  terms 
of  the  document  itself,  the  owner  is  liable.  The  custom  says  the 
broker  shall  be  liable  also.  There  is  nothing  in  that  which  is 
inconsistent  with  the  contract;  though  it  would  be  inconsistent 
if  the  custom  were  to  exclude  the  liability  of  the  owner."  ^ 


1  I'ike  V.  OiiRk'y,  18  Q.  \\.  Div.  708, 
713.  Sff.  Ilutcliiiusoii  r.  Tutliiirn,  I..  H.  8 
V.  v.  482  ;  Fleet  c.  Murl-.n,  L.  \l.  7  t.».  K. 
l'2t) ;  Hiiiiii.hivy  v.  Dale,  7  K.  &  B.  at 
p.  '27(1.  A  fair  coiielii.-tion  as  to  the  re.sult 
ol  till'  autliDI'ities  is  tiiat  a  cnlitrart  made 
by  a  liroker,  "  tor,  or  on  acrouiit  of,"  or  "  as 
»K''iits  for"  a  prin(i|Hil,  wlutlier  this  ap- 
I'fars  ill  the  boily  of  the  contract  or  liy 
tile  sij^natiire,  does  not  remler  the  broker 
lialile  as  a  j>rinci|>«l,  wheie  he  was,  in  fact, 
actually  contracting;  for  a  |irinci|ial  ;  but 
fvidcncn  of  usage  niny  lie  jjiven  to  show 
that  the  broker  is  nl.so  lialilc,  il,  for  in- 
Btitioe,  he  i'nil  to  disclose  his  principal  ; 
tliis  not  takinf^  awny  the  liability  of  the 
prim  ipal,  but  nddinj?  another  jiarty  to  tho 
cnntract,  as  liable  ;  jnst  as,  in  contracts 
miicjc  with  an  aj^ent  in  his  own  name,  the 
liability  of    the   principal    is  also  iiddcd 


when  it  is  discovered  there  is  a  ])rineipal. 
Hot  the  coMViTs..'  of  the  rule  does  not  hold 
^Dod.  (Mie  will)  contracts  as  a  principal, 
tlioii^;!)  he  lie,  in  fact,  contracting  fiii'  an- 
other, cannot  ^ive  evidence  of  a  custom 
that  he  has  not  the  liability  which,  on  the 
face  ot  the  contract,  he  admits  he  ha.s. 
This  seems  a  little  inconsistent,  but  it  is 
not  really  so.  The  well-known  iirinciple 
of  estop|H'l  applies.  One  who  holds  him- 
self out  as  principal,  and  expressly  con- 
tracts as  such,  is  estopiK'd  from  denying 
that  he  is  a  princi|ial,  and  equally  so, 
from  showing  that  there  is  a  custom 
which,  repugnant  to  the  contract,  shows 
him  other  than  he  has  declared  him.scif 
to  be.  But  one  who  contracts  with  an- 
other who  declares  himDcIf  Ut  1h'  an  agent 
is  no  more  esfopjied  lnj  the  declnrcUum  of 
that  other  from  showing,  by  custom,  or  by 


1: 


.    ,1 


■    M 


670 


CUMMENTABIBS  UN   8ALES. 


[BUUK  II. 


A  broker  cannot  sue  in  liia  own  name  upon  contracts  mudu  by 
h.iu  a»  broker.  Thus,  where  the  pluintill,  u  broker,  HJ^qiud  uiiti 
delivered  to  the  defenduntH  u  bought  note  lor  eottou,  in  the  iul- 
lowing  form.  *^1  have  this  day  Hold  you  on  account  uf  U,  iVo. 
M  F.,  broker,**  it  wati  held  that  he  wa^  not  a  (;oiitructing  party, 
and  could  not  Miie  the  defoudaiitH  for  breach  of  the  contract  in  ro 
fusing  to  accept  the  cotton.'  Some  of  the  text-ljookH  have  Btatod 
the  principle  otherwiMc,''  but  they  are  disapproved.  Kelly,  C.  |]., 
points  out  the  proper  disitinction ;   thus  :  **  The  numerous  caMCH 

thu  liict  tliiit  th(^  alli'Kcil  iigi-iit  M'lilly  liml 
no  juiiit'iiml,  tlial  tin*  iniiiiiiiiil  ii;;fiit  lit 
ri'iilly  lialili^  us  ii  |iiiiici|ial,  than  lii>  i.i 
0Mt(i|>|M'il  from  Hlii>win;{  timt  mu*  wlio 
iioniiiiiilly  r(tnti'UL't.s  iim  ii  |)i'ini'i|Hil  i* 
roiilly  I'lit  tliu  a^i'ut,  and  tliut  anotlitT  in 
liiiblo  as  till*  real  |ii'iii('i|i.il.  ilu  han  tliu 
iiftUl  uf  liol(liii);  tlii^  |i.irly  to  the  coiiiract 
who  lias  luiiilf  liiiiisull  .1  party  to  it,  liiit 
thi>i°(>  is  no  (>sto|i|icl  airi'i'tiii^  liiiii  fi'diii 
sliowiiiK  tliut  aiiotlicr  is  li;ilili>  .is  priii- 
ci|>al  or  as  ii  iloriiiaiit  |iarliit'r,  to  tlit*  con- 
tract,  tiiailo  liy  tliu  a'^ciil  or  partiiur  of 
till!  iiiidiittilosiMl  {iriiii'i|i.il,  or  the  tlortiiaiit 

Jiartncr.  Tins,  wc  lliiiik,  irconi'ili's  tlio 
locisions  in  the  iii.iltcr,  wliii'li,  at  a  lirst 
glaum*,  suvni  iin'onsistctit  ami  irr<'i'uiii'j|- 
aljli!.  Iliitcliinsiin  c  Tatliaiii,  L.  1{.  8 
('.  1*.  48'J,  is  a  I'asu  vrry  similar  to  that 
of  rik»<  V.  «)ii«k'y,  \S  i).  II.  Div.  708. 
Wliih*  ill  iifitlii-r  of  tliiMii  is  tlu^  tourt  at 
all  cliiar  as  to  the  Kidtiiul  upon  wliii'h  the 
duuisions  anil  others  analogous  to  tlifiii 
(■:iii  rest,  wo  think  thai  tin-  {{roiiinl  stated 
by  IIS  aUivt'  is  the  teii.ihle  one.  See  also, 
t'airliu  v.  Funtoii,  L.  1!.  5  Kx.  lii'J;  Nulila 
V.  Kennowav,  2  l>oll<;.  .'ill)  ;  llli;<{ilis  r. 
Senior,  8  .Vl.  &.  W.  S;il  ;  Tnieman  «. 
Loilur,  11  A.  A;  K.  5Sl) ;  .M  ij{ee  r.  Atkin- 
son, 2  .M.  &  W.  no  ;  t'.irr  e.  .laekson.  7 
Ex.  38-J;  lliinilile  c.  Hunter,  \>  q.  1). 
310.  In  lliek.'it..n  V.  Ilurreii,  :,  M.  k  S. 
38;<,  a  plaintilf  who  luade  a  lontriii'l  an 
agent,  and  sued  as  principal,  was  non- 
suited. It  was  elainied  that  he  was  not 
ustoppeil  from  sliowiiii;  tli.it  he  was  a^ent. 
Lord  Klli'iilHiroiigli,  dealing  with  this  cpies- 
tion,  says  :  "  In  thu  ordinary  tran.s:it'tions 
of  eoniiiieive,  a  man  niav  sell  or  pureiia.se 
ill  his  own  name,  and  yet  it  does  nut 
follow  that  the  tontraet  is  lii.s,  luit  tho 
ti-iinsaetioii  is  o)H-n  to  explanation,  and 
others  who  do  not  ap|N>ar  as  parties  to 
the  oontraet  are  fre(|ueiitiy  disclosed,  and 
Htep  III  to  demand  tiiu  lienelit  of  it.  Hut 
wliere  a  man  assigns  to  him^^elf  the  char- 
acter of  agent  to  another  whom  he  names, 
I  am  nut  aware  that  the  law  will  iierniit 
him  to  shift  his  situation,  and  to  declare 
himself  the  princi|ial,  and  the  other  to  bo 
a  more  creatun;  of  straw.  That,  I  lielieve, 
has  utiver  yet  beeu  attempted.     Now,  on 


the  lace  of  this  agieeliieiit,  it  is  stated  lli;it 
the  plaintiir  made  tiie  piiirlia.se,  paid  tlir 
deposit,  and  agreed  tn  comply  with  tlicdJii. 
ditions  ol  sale  tor  Kicli.iiilson,  and  in  ihu 
mere  character  of  iigcnt.  Is  not  this  ac- 
count of  liiinself  to  Ik"  lilkell  /•f/7i.v\/mi' 
ciiiitni  /init'iriiilim  ;  that  i.s,  that  he  was 
really  tivatiug  in  the  character  which  lir 
a.sNiijiied  to  liiinselr  at  the  time  id'  the  |iui- 
cha.>.e  I  And  has  not  the  delendant,  with 
wlioiii  the  plaintilf  dealt  us  ageiil,  a  n;;lit 
si  ill  to  coiisiiler  liini  as  such,  iidtwiili- 
standing  hi!  woiiM  now  .sue  in  the  charac- 
ter of  principal'"  See  further,  lli^';,'iiis 
c.  .Senior.  ,H  M.  &.  \V.  8:11,  8f»  ;  .I.ni,,  v. 
hittlcdale,  «)  A.  &  K.  48ii  ;  .Magee  e.  .\t. 
kiii.Min,  2  .M.  &  \V.  Ho  ;  .Sowerl.y  v 
IJillclier,  'JC  &  ,M.  aZl  ;  I'eiit/.  r.  Staiildii, 
10  Wind.  277  ;  Stackpole  v.  Arn..ld,  tl 
Ma.ss.  "27  ,  (iruves  i'.  Ho.ston  .Marine  In.'*. 
Co..  2  Cniiich,  41!»  ;  l.u<'as  v.  |)e  l,i  ('mir, 
I  .M.  .V  S.  'JtU;  UoIlsoii  v.  Druninioirl,  :i 
It.  &  Ad.  303.  The  same  position  is  taken 
in  Kayner  v.  (irot.-,  l.'i  M.  &  \V.  ;:.'.!». 
3(!.'>,  coiieiirring  with  the  doclnne  as  tn 
estoppel,  /»■/■  l.,ord  Klleiilioroii^h,  in  Itiik- 
ertoii  1'.  Biiriell,  r>  M.  &  S.  HS.t,  as  to 
"all  exeentory  eontraets,  if  wholly  iiii|ii'r- 
formed,  or  il*  partly  |ieri'oriiied  without  tin- 
kiiowledg(>  of  who  IS  the  leal  priiici|ial," 
being  within  the  rule  that  one  wlm  tie* 
seniles  himself  ,is  agent  is  estop|ii'.|  rrniii 
claiming  tli.il  he  is  a  principal.  In  Hick- 
ertoii  V.  Hiirrell  another  gnnind  tli.iii 
estoppel  was  also  relied  on,  but  >ii  ll.iyni'r 
tl.  (irote,  it  Wiis  intimated  th.il  the  cas.- 
was  not  tenable  on  that  groiiml.  Imt  »ii 
that  of  estoppel.  .See,  however,  .Srliiiialt/ 
V.  Avery,  10  (.).  B.  ♦iti,'.,  (id'i,  when'  tlii« 
case  is  put  upon  the  not  very  satisl'ai  inry 
ground,  that  as  tin'  i-hartcr-p.iity  was 
entered  into  by  the  plaintilf  as  "aijcnt  of 
the  freighter,"  any  one  could  be  naim  d  a.i 
the  principal  as  "  Ireighter,"  and,  linn'- 
fore,  that  the  agent  coiihl  do  so,  alilion^'li 
it  involved  the  peculiar  feature  of  being 
the  agent  of  himself. 

>  K.iirlio  V.  Feiiton,  L.  U.  5  Kx.  li!!>. 

^  Ciiittyon  Plead.  7th  eil.,  V(d.  i.  p.  S  ; 
Ilammoml  on  Parties  (8vo.  1817),  adopliil 
ill  Lush  on  Practice,  3rd  cd.,  p.  11. 


PART    VIII.] 


AGENCT. 


671 


cited  to  UH  hIiow  that  in  certain  contracts  tho  agen  may  himself 
8UU  as  principal ;  but  in  nunc  does  it  appear  that  a  broker  has 
Hucct'ssfully  niuintained  an  action  on  a  contract  made  by  him  as 
brolvor.  llt>  may,  no  doubt,  frame  a  contract  in  such  a  way  as  to 
niaiie  binist^lf  u  party  to  it,  and  entitled  to  sue,  but  when  lie  con< 
tracts  in  tlic  ordinary  form,  deseribin}^  and  nignin)^  hiniHclf  as  a 
liroker,  and  naming  his  principal,  no  action  is  maintainable  by 
him.  Though  innumerable  contracts  of  this  nature  daily  take 
place,  yet  no  iuHlance  lias  occurred  within  my  own  recollection, 
nor  has  any  instance  bticn  cited  to  us,  where  an  action  has  been 
l)n)ught  by  a  broker  describing  himself  as  such  in  the  contract, 
and  not  using  words  which  ex|>ressly  or  by  necessary  implication 
make  him  the  contracting  party.  Without  further  arguing  tho 
point,  it  is  enough  tt)  refer  to  this  unbroken  rule  as  the  settled 
law  upon  the  sultject."  ' 

in  Irvine  r.  Watson,'*  the  cases  were  acted  on,  in  which  it  has 
been  decided  that  there  is  a  distinction  between  ca.ses  where  an 
agent  in  eilVcting  a  contract  for  the  purchase  of  goods  does  not 
disclose  the  txistence  of  a  principal  at  all,  and  those  where  ho 
discloses  that  he  has  a  principal  but  does  not  give  his' name.  In 
the  former  class  of  eases,  it  was  held  that  it  is  settled  law  that 
the  seller,  upon  discovery  of  tho  principal, cannot  have  recourse  to 
him,  if  in  the  mean  while  the  principal  has,  bond  fide,  paid  the 
agent.  Hut  it  was  further  held  that,  in  the  latter  class  of  cases, 
the  seller  may  have  recourse  to  the  principal,  though  he  has,/>oM<i 
/('/(■,  paid  the  agent  for  the  goods,  unless  there  has  been  such  con- 
duct on  the  seller's  part,  e.  //.,  delay  in  applying  to  the  principal, 
us  might  justify  the  principal  in  concluding  that  the  seller  was 
not  looking  to  his  credit,  but  to  that  of  the  agent. 

Thus,  in  this  case,^  the  defendants  employed  (\,  a  broker,  to 
buy  oil  for  (hem.  C,  accordingly,  bought  of  the  )ilaintiiTs,  inform- 
ing them  at  the  time  of  the  sale  that  he  was  buying  for  principals, 
though  he  did  not  tell  them  who  those  principals  were.  The  terms 
of  tjie  sale  were  "  cash  on  or  before  delivery  ;"  but,  though  it  is 
not  infrequent  in  the  oil  trade  in  such  a  case  to  recpiire  payment 
before  delivery,  there  is  no  invariable  custom  to  that  effect.     The 


'  Fiiirlie  v.  Fonton,  I,.  H.  .'•  Fx.  n\  p. 
171.  Sc.  Fish«'ri'.  Miir.sli,«n.  &S.nt  ii.4lfi  ; 
Braiiiwoll  V.  Spillcr,  'Jl  L.  T.  N.  s.  ti7'2  ; 
K.iwkes  V.  Uiiili,  31  I,.  .1  y.  B.  1»8.  St-e 
Huiiiii?  V.  Corric,  2  H.  &  Al«l.  137,  ns  to 
till'  ilistinctioii  bt'twiTii  ik  broker  nnd  fac- 
tor,  as  to  ti»c  right  of  st't-olF.  Ami  see 
('.force  V.  ClaRett,  7  T.  R.  S.IO ;  Kscott  v. 
Milwiiril,  Co.  Bniik.  Lnws,  236  ;  U;»l)ono 
r.  Williiims,  7  T.  K  3fiO  ».  ;  S.-rimsliin^ p. 
Al.Kiioii,  2  Sir.  118J  ,  Morris  v.  Cleasby, 


4  M.  &  S.  560  ;  Moore  v.  Cleiiii'iitson.  i 
Ciitiip.  22  ;  lliTii  V.  Nii'holx,  .Sulk,  28U. 
An  atictiont'er,  hiiviiif;  n  lim  oit  tUv  (^^^o^\» 
iiiul  |irii;c,  is  niuo  distiiigui.shcd  from  a 
broker  a.^  to  tiic  riglit  to  Hiit-  in  hiN  own 
nnnip.  Williiuns  i>.  Millington,  1  II.  Bl. 
81  ;  Rohinsoii  v.  Kutt<r,  4  K.  k  U.  &&4 ; 
Fislicrv.  Mnnttt,  6  R.  &  S.  411. 

•  .5Q.  B.Div.  102. 

•  Irvine  V.  Watson.  5  Q.  B.  Div.  102  ; 
and,  on  npiwul,  Ibid.  414. 


'    I 


•«! 


I  i' 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


fli — 


ll|M 

12.2 


t»  IIIIIM     _ 
1^   ^= 

m  liiio 


18 


',' 

1-25      1.4      1.6 

« 6"     

► 

Photographic 

Sciences 
Corporation 


23  WEST  MAIN  itVJUJ 

WEBSTER,  N.Y.  14:^80 

(716)  872-4503 


i. 


1^  '># 


<k> 


672 


COMMENTARIES  ON   SALES. 


[book  II. 


plainti£Fs  delivered  the  oil  to  C.  without  insisting  on  prepay- 
ment, and  the  defendants,  not  knowing  that  the  plaintiffs  had  not 
been  paid,  paid  C.  shortly  afterwards.  C.  stopped  payment,  and 
the  plaintiffs  thereupon  sued  the  defendants  for  the  price.  The 
Court  of  Appeal  held,  affirming  the  judgment  of  Bowen,  J.,  that, 
as  the  plaintiffs,  at  the  time  of  the  sale,  knew  the  broker  was  buy- 
ing for  principals,  and  not  on  his  own  account,  the  fact  of  the  de- 
fendants having  paid  the  broker  did  not  preclude  the  plaintiffs 
from  suing  them  for  the  price,  unless,  before  such  payment,  they 
had  by  their  conduct  induced  the  defendants  to  believe  that  they 
had  already  been  paid  by  the  broker ;  and  that  the  mere  omission 
on  the  part  of  the  plaintiff's  to  insist  on  prepayment,  was  not,  in 
the  absence  of  an  invariable  custom  to  that  effect,  such  conduct  as 
would  reasonably  induce  such  belief.  The  defendants  were,  ac- 
cordingly, held  liable  to  the  plaintiffs  for  the  price  of  the  oil,  not- 
withstanding their  payments  therefor  to  the  agents.^ 

An  agent  of  the  Cherokee  nation  is  not  liable  personally  on 
contracts  made  with  the  nation  in  connection  with  their  removal 
beyond  the  Mississippi  River.  He  acts  as  a  public  officer  for  his 
government,  and  the  rule  as  regards  him  is,  that  he  is  not  per- 
sonally responsible  on  any  contract  he  may  make  in  his  official 
capacity  ;  and  wherever  his  contract  or  engagement  is  connected 
with  a  subject  fairly  within  the  scope  of  his  authority,  it  shall  be 
intended  to  have  been  made  officially,  and  in  his  public  character, 
unless  the  contrary  appears  by  satisfactory  evidence  of  an  abso- 
lute and  unquaiitied  engagement  to  be  personally  liable.^ 

If  powers  given  to  an  agent  to  sell  are  ambiguous,  and  are  rea- 
sonably construed  by  the  agent  and  a  third  person  dealing  with 
him,  the  principal  is  bound,  though  it  should  prove  not  to  have 
been  the  construction  intended  by  the  principal.^  In  this  case  the 
United  States  Supreme  Court  acted  on  this  principle  in  holding 
that  a  power  to  an  agent  to  sell  lands  on  such  terms  in  all  respects 
as  he  might  deem  most  advantageous,  and  to  execute  deeds  Oi 
conveyance  necessary  for  the  full  and  perfect  transfer  of  the  title, 
authorizes  the  agent  to  insert  in  the  deed  the  usual  covenants  of 
warranty.* 


1  See  ante,  note  1,  to  p.  561,  where 
we  have  fully  considered  the  question. 
It  is  fancied  in  this  case  that  the  dpciRions 
in  Smyth  v.  Anderson,  7  0.  B.  21  ;  Heald 
V.  Kenworthy,  10  Ex.  739,  and  Arm- 
strong V.  Stokes,  L.  R.  7  Q.  B.  598,  are 
irreconcilable.  Hut  we  think  we  have 
shown  in  our  note,  ante,  to  Armstrong  v, 
Stokes,  that  such  is  not  the  case,  and  that 
we  have  there  clearly  shown,  on  a  full 
examination  of  the  authorities,  what  the 
law  on  the  qaestion  really  is. 


2  Parks  V.  Ross,  11  How.  362.  This 
was  put  on  the  ground  that  it  is  nii 
established  rule  of  law,  that  an  agent  vho 
contracts  in  the  name  of  his  principal 
is  not  liable  to  a  suit  on  such  contract; 
much  less  a  public  officer,  acting  for  his 
government. 

«  Le  Roy  t>.  Beard,  8  How.  451. 

♦  See  Baring  v.  Corrie,  2  B.  &  Aid. 
143 ;  Courcier  v.  Ritter,  4  Wash.  C.  C.  551. 


PART  VIII.] 


AGENCT. 


673 


If  the  owner  of  a  bill  send  it  to  an  agent,  not  residing  at  the 
place  where  it  is  payable,  for  collection,  the  agent  has  an  implied 
authority  to  employ  a  sub-agent  at  the  place  where  it  is  payable  ; 
and  if  the  sub-agent  receive  the  contents,  the  owner  can  sue  him 
for  money  had  and  received,  though  the  sub-agent  had  no  notice 
when  he  collected  the  money  that  the  agent  was  not  the  owner. 
And,  in  such  a  case,  the  sub-agent  cannot  retain  part  of  the  pro- 
ceeds, on  account  of  a  debt  of  the  agent,  unless  he  has  given 
credit  on  the  faith  that  the  agent  owned  the  bill.* 

Merchants  in  London,  upon  the  instruction  of  shipping  agents 
at  Havannah  with  respect  to  a  cargo  of  tobacco  to  be  consigned 
to  the  London  merchants,  and  after  receiving  the  shipping  docu- 
ments, effected  policies  of  marine  insurance  in  the  ordinary  form 
on  behalf  and  for  the  benefit  of  all  parties  whom  it  might  concern. 
The  Havannah  agents  shipped  and  consigned  the  tobacco  in  their 
own  names,  but  were  in  fact  acting  as  commission  merchants  for 
Havannah  merchants  to  whom  the  tobacco  belonged ;  and  the 
London  merchants  before  effecting  the  policies  had  notice  that 
the  Havannah  agents  had  an  unnamed  principal.  A  total  loss 
having  occurred,  the  London  merchants  received  the  policy  mon- 
eys, but,  before  receipt,  had  notice  that  the  moneys  were  claimed 
by  the  Havannah  principals.  On  appeal  from  an  order  of  the 
Court  of  Appeal,^  reversing  a  judgment  of  Manisty,  J.,  in  favor  of 
the  defendants,  the  House  of  Lords  held,  affirming  the  decision  of 
the  Court  of  Appeal,  that  an  action  lay  by  the  Havannah  princi- 
pals against  the  London  merchants  for  the  policy  mone\'*8 ;  that 
the  London  merchants  were  not  entitled  to  a  lien  upon  the  moneys 
for  the  balance  of  their  general  account  with  the  Havannah  agents, 
and  could  not  in  that  action  set  off  their  claim  to  that  balance, 
or  set  off  anything  except  the  premiums,  stamps,  and  commission 
in  respect  of  the  insurance.^  The  fact  of  the  principals  being 
foreign  principals  did  not  affect  the  case.  They  having  been  the 
owners  of  the  tobacco,  and  the  money  recovered  under  t'  e  policy 
having  been  received  by  the  defendants  after  they  had  knowledge 
that  the  plaintiffs  were  the  previously  undisclosed  principals  re- 
ferred to  by  their  agents,  the  House  of  Lords  held,  that,  under  the 
old  form  of  pleading,  monoy  had  and  received  for  the  use  of  the 

«  Wilson  V.  Smith,  3  How.  763.  Tliis 
^ase  followed  Rank  of  the  Metropolis  v. 
The  New  England  Bank,  1  How.  234. 

No  action  against  any  other  person  will 
lie  on  negotiable  promissory  notes  bearing 
no  name  but  that  of  the  maker.  Cragin 
V.  Lovell,  109  U.  S.  194  ;  Nash  v.  Towne, 
5  Wall.  689,  703  ;  Williams  v.  Robbina, 
16  Oray,  77  ;  In  re  Andansonia  Fibre  Co. 
I',  R.  9  Ch.  635  :  Daniels  v.  Burnham,  2 


La.  243,  245.  This  does  not  come  within 
that  class  of  cases  in  which  the  name  of 
the  principal  appears  on  the  face  of  the 
note.  Mechanics'  Bank  of  Alexandria  v. 
Bank  of  Columbia,  5  Wheat.  326  ;  Met- 
calf  v.  Williams,  104  U.  S.  93  ;  Hitchcock 
V.  Buchanan,  104  U.  S.  416. 

>  Maspons  v.  Mildred,  9  Q.  B.  Dir. 
630. 

>  Mildred  v.  Maspons,  8  Ap.  Gas.  874. 


!       ■■      I 


H 


■  i 


iU% 


^[1,1 


\\< 


:'i!:,J, 


574 


COMMENTARIES  ON   SALES. 


[book  11. 


plaintiffs  would  lie  against  the  defendants  for  money  so  received.' 
Lord  Blackburn  took  the  position  that  the  case  would  also  come 
under  the  Factors'  Act,  but  as  neither  of  the  other  lords  sitting 
with  him  assented  to  that  position,  the  case  was  not  decided  on 
that  ground,  although,  evidently.  Lord  Blackburn  had  very  decided 
views  that  the  case  came  within  the  act.^ 

B.  W,  &  Co.,  who  had  contracted  with  a  colliery  company  for 
10,000  tons  of  coal,  to  be  delivered  over  a  period  of  three  montlis 
at  a  spout  on  the  Tyne,  "  the  turn  to  be  mutually  agreed  upon," 
proposed  to  charter  a  foreign  ship  for  the  conveyance  of  29  keels 
of  Elsinore,  and  tendered  to  the  captain  a  charter-party  which 
stipulated  for  demurrage  in  unloading  the  ship,  but  made  no  pro- 
vision for  detention  in  loading  her.  The  captain  declined  to  sign 
such  a  charter  without  an  assurance  that  there  should  be  no  un- 
due detention  of  his  ship ;  and  thereupon,  B.  W.  &  Co.  obtaineti 
from  the  defendant  (who  was  a  clerk  employed  by  several  colliery 
companies  to  arrange  the  terms  for  loading)  the  following  under- 
taking: "I  undertake  to  load  the  ship  Der  Versuch,  29  keels, 
with  Bebside  coals  in  ten  colliery  working  days,  etc.  On  account 
of  Bebside  Colliery,  W.  L.  Hoggett."  This  memorandum  (which 
made  no  mention  of  the  person  contracted  with)  was  communi- 
cated by  the  charterers  to  the  captain  of  Der  Versuch,  who  there- 
upon accepted  the  charter.  The  vessel  being  detained  in  loading 
beyond  the  stipulated  ten  days,  the  captain  called  upon  the  de- 
fendant to  pay  him  .£45  for  demurrage.  The  defendant  repudi- 
ated all  liability,  but  ultimately  offered  to  pay  the  captain  .£20. 
The  defendant  had  no  notice  of  the  charter.  In  an  action  by  the 
captain  to  recover  .£45  for  demurrage  from  the  defendant,  it  was 
held  that,  upon  these  facts,  a  jury  were  warranted  in  finding  that 
the  undertaking  to  load  within  ten  days  was  a  contract  between 


»  Dii  Bnssche  v.  Alt,  8  Ch.  Div.  286  ; 
Mann  v.  Forrester,  4  Camp.  60  ;  Boden- 
ham  V.  Hoskins,  21  L.  J.  N.  s.  (Ch.)  864  ; 
Pannell  v.  Hurley,  ^  Coll.  241  ;  Ex  parte 
Kingston,  L.  R.  6  Ch.  632  ;  Lanyon  v, 
Blanchard,  2  Camp.  596 ;  Maansa  v. 
Henderson,  1  East,  335  ;  McFarlane  v. 
Norris,  2  B.  &  S.  783  ;  Meyer  v.  Dresser, 
16  C.  B,  N.  s.  646,  665  ;  Fish  v.  Kemp- 
ton,  7  C.  B.  687  ;  Savenza  v.  Brinsley,  18 
C.  B.  N.  8.  467  ;  Bx  pnrte  Dixon,  4"  Ch. 
Div.  133  ;  Irvine  v.  Watson,  5  Q.  B.  Div. 
102,  414  ;  Lanyon  v.  Blanrhard,  2  Camp. 
696;  Ek  parte  Cook,  4  Ch.  Div.  123; 
Knatchbull  r.  Hallett^  13  Ch.  Div.  696, 
709. 

^  Under  the  Factors'  Acts  (including  5 
&  6  Vic.  c.  39)  the  consignee  of  goods  is 
given  a  lien  for  advances  on  goods  received 
from  a  consignor,  as  the  apparent  owner 


of  the  goods,  "provided  snch  consifjncfi 
shall  not  have  had  notice  by  the  bill  of 
lading  or  otherwise,"  etc,  "that  such 
person  so  shipping  in  his  own  name  is 
not  the  actual  and  bond  fide  owner  of 
such  goods."  Lord  Hlacklmm  held  that 
this  was  but  in  affii-mance  of  the  com- 
mon law,  to  the  effect  that  knowledge, 
however  obtained,  that  the  goods  were  not 
the  property  of  the  person  dealing  as  a 
principal,  prevented  the  advancer  from 
having  a  lien  for  the  advances  made  after 
such  Knowledge,  on  the  ground  that  it 
was  unjust,  with  knowledge,  to  take  one's 
goods  to  pay  another's  debts  ;  and  that 
the  case  was  governed  by  the  exception  in 
the  statute.  Mildred  v.  Masjwiis,  8  A  pp. 
Cas.  at  p.  884,  et  sfq.  But  the  case  \va3 
decided  on  common-law  principles,  irre- 
spective of  the  Acts. 


1\ 


PART  VIII.] 


AGENCY. 


575 


the  captain  and  the  defendant ;  that  there  was  sufficient  consid- 
eration for  it ;  and  that  the  contract  was  with  the  defendant  per- 
sonally, and  not  as  agent.^ 

The  defendant,  an  estate  agent,  contracted  to  sell  land  to  the 
plaintiff,  who  paid  a  deposit.  The  defendant  signed  a  receipt  in 
his  own  name  for  the  deposit,  and  the  plaintiff  signed  an  agree- 
ment containing  the  terms  of  the  purchase.  The  owner  of  the 
land  refused  to  complete  the  purchase,  and  the  plaintiff  sued  the 
defendant  for  damages  for  breach  of  the  contract  to  sell.  At  the 
trial,  the  jury  found  that  the  defendant  sold  as  principal.  Held, 
that  the  defendant  was  personally  liable,  and  that  the  agreement 
and  receipt  taken  together  formed  a  sufficient  contract  to  satisfy 
the  statute  of  frauds. ^ 

K.,  an  agent  of  the  plaintiffs,  having  authority  to  sell  goods  for 
them  and  to  receive  payment  in  cash  or  by  cheque,  but  having  no 
authority  to  indorse  cheques,  received  from  the  defendants  a 
cheque  on  their  bankers,  drawn  payable  to  "  S.  &  Co.  [the  name 
of  the  plaintiff's  firm]  or  order,"  and  fraudulently  indorsed  it, "  S.  & 
Co.,  per  S.  K.,  agent,"  and  misappropriated  the  proceeds.  The 
bankers  paid  the  cheque  and  returned  it  to  the  defendants,  and 
charged  the  amount  to  their  account.  The  court  held  that  an  in- 
dorsement of  a  cheque  ^^  per  procuration,"  or  "  as  agent,"  purports 
to  be  an  indorsement  by  the  payee  within  16  and  17  Vic,  c.  59, 
so  as  to  protect  the  banker  who  has  paid  it,  though  the  person  by 
whom  such  indorsement  is  made  has  no  authority  to  indorse  it ; 
and,  therefore,  that,  in  this  case,  such  payment  by  the  ban^;er8 
was  a  payment  within  the  protection  of  the  statute,  and  that  the 
plaintiffs  could  not  sue  the  defendants  either  for  the  price  of  the 
goods  or  for  an  alleged  conversion  of  the  cheque.^ 


I   1 


r 

1' 
I 
j. 

I : 

!,•  i 

!^^:  I 


1  Wt'idner  v.  Hoggett,  1  C.  P.  D.  533. 
See  Tanner  v.  Christian,  4  E.  &  H.  59; 
Lennard  v.  Robinson,  5  E.  &  B.  125  ; 
Piirker  v.  Winlow,  7  E.  &  B.  942,  a.s  to  an 
fliicnt  signing.  The  main  qne.stion  in- 
volved in  Weidner  v.  Hoggett,  1  (.'.  P. 
Div.  533,  was,  as  to  whetlier,  no  name 
being  mentioned  with  whom  the  under- 
taking was  made,  the  captain  con.il  take 
the  benefit  of  the  contract,  and  it  was 
held  that  it  was  a  contract  made  with  the 
I'lililain  as  an  ninlisclosed  principal, 

2  Long  V.  Millar,  4  C.  P,  Div.  450. 
And  see  Higgins  v.  Senior,  8  M.  &  \V. 
m  ;  Jones  V.  Littledale,  6  A.  &  E.  486  ; 
Ridgway  v.  Wharton,  6  H.  L,  C.  238  ; 
Allen  V.  Bennet,  3  Taunt,  169  ;  Calder  v. 
l>obell,  L.  R.  6  C.  P.  486  ;  Baumann  v. 
James,  L.  R.  3  Ch.  508 ;  Jones  v.  Victoria 
Graving  Dock  Co.,  2  Q.  B.  Div.  314. 

»  Chariest.  Black  well,  1  C.  P,  Div,  648; 


affirmed,  on  appeal,  by  the  Court  of  Ap- 
peals, 2  C.  P.  Div.  151.  Hy  the  19th  sec- 
tion of  the  act  it  is  provided  that  any 
draft  or  order  drawn  upon  a  banker  for 
a  sum  of  money  payable  to  order  on  de- 
mand whiidi  shall,  when  pre.sented  for 
payment,  purport  to  be  indorsed  by  the 
])erson  to  whom  the  same  shall  be  drawn 
jmyablc,  sliall  be  a  sufficient  authority  to 
such  banker  to  pay  the  amount  of  sucli 
draft  or  order  to  the  bearer  thereof ;  and 
it  shall  not  be  incumbent  on  such  banker 
to  prove  that  sucii  indorsement,  or  any 
subsequent  indorsement,  was  made  by  or 
under  the  direction  or  authority  of  the 
person  to  whom  the  said  draft  or  order 
was  or  is  made  payable  either  by  the 
drawer  or  any  indorser  thereof.  Hare  v. 
Copland,  13  Ir.  C,  L.  426,  is  to  the  .same 
effect,  under  this  act,  as  Charles  v.  Black- 
well,  1  C.  P.  Div.  648;  2  C.  P.  Div.  151, 


'•VM' 


576 


COMMENTARIES   ON   SALES. 


[book  II. 


It  has  been  held  that  in  order  to  constitute  a  valid  defence 
within  the  rule  in  George  v.  Clagett,^  the  plea  should  show  that 
the  contract  was  made  by  a  person  whom  the  plaintiff  had  in- 
trusted with  the  possession  of  the  goods ;  that  that  person  sold 
them  as  his  own  goods  in  his  own  name,  as  principal,  with  tlie 
authority  of  the  plaintiff ;  that  the  defendant  dealt  with  him  as, 
and  believed  him  to  be,  the  principal  in  the  transaction  ;  and  tliat, 
before  the  defendant  was  undeceived  in  that  respect,  the  set-off 
accrued.  It  is  not  necessary  in  such  a  plea  to  negative  "  means 
of  knowledge  "  that  the  seller  was  dealing  as  an  agcnt.^ 

To  a  count  for  goods  sold  and  delivered,  the  defendants  pleaded 
that  the  goods  were  sold  and  delivered  to  them  by  S.,  then  being 
the  agent  of  the  plaintiffs,  and  intrusiod  by  them  with  the  goods 
as  apparent  owner  thereof ;  that  S.  sold  the  goods  in  his  own 
name,  and  as  his  own  goods,  with  the  consent  of  the  plaintiffs ; 
that,  at  the  time  of  the  sale,  the  defendants  believed  S.  to  be  the 
owner  of  the  goods,  and  did  not  know  that  the  plaintiffs  were  the 
owners  of  or  interested  therein,  or  that  S.  was  agent ;  and  that, 
before  the  defendants  knew  that  the  plaintiffs  were  the  owners  of 
the  goods  or  that  S.  was  agent  in  the  sale  thereof,  S.  became  in- 
debted to  the  defendants,  etc. ;  claiming  a  set-off.  Replication, 
that,  before  the  sale  by  S.  the  defendants  had  the  means  of  know- 
ing that  he  was  merely  apparent  owner  of  the  goods,  and  that  the 
same  were  intrusted  to  him  as  agent,  and  that  S.  was  agent,  and 
as  such,  sold  the  goods  to  defendants.  Held,  that  the  plea  was 
good,  and  the  replication  no  answer  to  it.^ 


In  Cookson  v.  The  Bank  of  England,  cited 
in  Haid  v.  Copland,  Martin,  B.,  at  nisi 
prills,  held,  that  the  section  covered  in- 
dorsements by  procuration.  The  only  re- 
port of  Cookson  V.  The  Bank  of  England 
was  in  the  notes  of  a  short-hand  reporter 
for  the  London  Times  newspaper,  which 
led  to  some  satirical  remarks  by  Chris- 
tian, J.,  in  Hare  v.  Copland  ("Really, 
after  having  stooped  so  low  for  an  author- 
ity, we  are  but  ill  rewarded  for  our  hu- 
mility," 13  Ir.  C.  L.  at  p.  439) ;  but  the 
case  was  ai)proved  by  Lindley,  J.,  in 
Charles  v.  Blackwell,  1  C.  P.  Div.  at 
p.  555.  See,  as  to  checks  being  payment 
before  the  statute,  Hansard  v,  Robinson, 
7  B,  &  C.  90;  Crowe  ■;.  Clay,  9  Ex.  604; 
and  as  to  effect,  then,  of  their  being  signed 
"by  procuration,"  Alexander  v.  Macken- 
zie, 6  C.  B.  766;  Stagg  v.  Elliott,  12  C.  B. 
N.  s.  373. 

1  If  a  factor  who  sells  under  a  del  cre- 
dere commission  sells  goods  as  his  own, 
and  the  buyer  knows  nothing  of  any  prin- 
cipal, the  buyer  may  set  off  any  demand 
he  may  have  on  the  factor  against  the 


demands  for  the  goods  made  by  the  prin- 
cipal.   George  o.  Clagett,  7  T.  R.  359. 

2  Berries  v.  Imperial  Ottoman  Bank, 
L.  R.  9  C.  P.  38. 

**  Borries  v.  Imperial  Ottoman  Bank, 
Tb,  Coleridge,  C.  J.,  in  a  few  wnnls, 
places  the  matter  on  the  correct  basis, 
thus;  "It  was,  in  the  first  place,  con- 
tended that  the  plea  should  have  avi>rre(l 
not  only  that  the  defendants  did  not  know 
that  the  plaintiffs  were  the  owners  of  the 
goods,  and  believed  S.  to  be  the  owners, 
but  also  that  the  defendants  had  not  the 
means  of  knowledge  that  S.  was  not 
owner,  but  was  acting  in  the  sale  as 
agent.  It  appears  to  me,  however,  that 
the  plea  states  all  that  is  material  to  niise 
the  defence.  It  states  that  the  plaiiitiH's 
intrusted  S.  with  the  goods  for  sale  ;  that 
they  sold  them  ;  and  that  the  defendants 
bought  them  b(ilieving  S.  to  be  the  owner 
of  them.  The  essence  of  the  defence  is,  th 
real  slate  of  the  defendants'  minds  when 
they  bought  the  goods  of  S.  They  assert 
that  it  was  this :  that  they  believed  the 
goods  to  be  the  goods  of  S.,  and  did  not 


PART  VIII.] 


AOENCT. 


577 


That  a  broker  or  agent  employed  to  sell  liaa  prima  facie  no  au- 
thority to  receive  payment  otherwise  than  in  money,  according  to 
the  usual  course  of  business,  is  well  establisiicd  ;  and  it  is  equally 
as  clear  that,  if  instead  of  paying  money  the  debtor  writes  off  a 
debt  due  to  him  from  the  agent,  such  a  transaction  is  not  payment 
as  against  the  principal,  who  is  no  party  to  the  agreement,  though 
it  may  have  been  agreed  to  by  the  agent. 

Thus,  where  A.,  a  broker,  sold  some  cotton  yarn  to  the  de- 
fendant ;  before  its  delivery  the  defendant  paid  to  A.,  in  ad- 
vance, £1000  on  his  general  account.  Part  of  the  yarn  was 
sold  by  A.  as  agent  for  the  plaintiff  on  a  del  credere  commission. 
The  value  of  the  yarn  being  more  than  £1000,  the  defendant 
paid  the  difference  to  A.  in  cash,  and  so  balanced  the  accounts 
i)etween  them.  A.  did  not  pay  over  to  the  i)laintiiT  the  value  of 
his  yarn,  and  became  bankrupt.  It  was  held,  that  the  defendant 
was  still  liable  to  the  plaintiff  for  the  price  of  the  yarn,  except  to 


know  or  believe  that  the  pluintiffs  were 
the  owners  of  or  interested  in  tlieni.  This 
hrin<,'9  tlie  ease  distinctly  within  the  rule 
in  George  v.  Clagett,  7"T.  K.  35i>,  and 
that  is  tlie  t'orni  ot  jiiea  which  has  been 
coininonly  in  use  to  raise  a  defence  of  tiiis 
kind.  .  .  .  The  plea  beinf{  good,  it  fol- 
lows that  the  rei>lication,  which  merely 
states  that  at  the  time  of  tlie  sale  the  de- 
fendants had  the  means  of  knowhui  that 
S.  was  only  apparent  owner,  and  was  in- 
trusted with  tlie  goods  as  agents  of  the 
plaintill's,  is  no  answer  to  the  plea,  being 
a  mere  statement  of  a  fact  which  was  im- 
material." Borries  i".  hn|ierial  Ottoman 
Bank,  L.  R.  9  C.  W  38,  45. 

A  similar  (piestion  to  this  came  up  in 
a  Canadiau  case,  under  their  Stamp  Act 
(42  Vic.  ch.  17),  where  the  plaintiff  re- 
ceived a  bill  whicii  was  not  stamped  ;  but 
the  ])laintiir,  although  knowing  tiiat  bills 
ri'(juired  to  be  stamped,  did  not  notice 
that  the  bill  was  not  stamjied,  and  jiut  it 
ill  his  safe,  where  it  remained  lor  some 
two  montiis,  when,  on  the  {ilaiiitilf's  at- 
tention being  calh'd  to  the  fact  that  the 
hill  was  not  stamped,  and  which  was  the 
first  time  he  had  actual  "knowledge"  of 
that  fact,  he  put  on  double  stamps,  the 
iii't  (section  13)  making  bills  goal  pro- 
viiling  that,  in  such  a  case,  double  stamps 
are  put  on  by  the  holder  as  soon  as  he 
accpiires  the  knowledge  that  the  instru- 
ment is  defective  for  Wi;iit  of  stamps. 
The  Supreme  Court  of  Canada,  affirm- 
ills  the  judgment  of  a  majority  of  the 
Supreme  Court  of  New  Brjnswick, 
Weldon  and  Wetmore,  JJ.,  dissenting 
(Tufts  V.  C'apman,  22  N.  B.  R.  195), 
lield  that  t.  bill  was  good  ;  having  the 
means  of  knowledge  by  the  holder  not 
VOL.  I.  37 


being  equivalent  to  the  actual  knowledge 
which  was  meant  by  tlie  act.  Cliajmian 
V.  Tuft.s,  8  Can.  Sup.  Ct.  513.  Allen, 
C.  J.,  in  delivering  the  judgment  of  the 
majority  of  the  New  Brunswick  Court, 
.said  :  "Whether  the  bill  was  improperly 
received  in  evidence  depends  upon  the 
con.slruction  to  be  given  to  the  13th  .sec- 
tion of  the  Stamp  Act,  42  Vic.  c.  17, 
which  authorizes  any  liotder  of  a  bill 
or  note  not  stanii)ed,  or  insufliciently 
stamped,  to  alH.x  double  duty  stamps,  if, 
when  he  became  holder  thereof,  he  liad 
'no  knowledge  of  such  defect,'  and  paid 
the  doMble  duty  'as  soon  as  he  acipiired 
such  knowleilge.'  .  .  .  If  by  the  word 
'knowledge'  is  to  be  understood  actual 
information  of  the  fact,  then  I  am  unable, 
from  the  plaintiff's  evidence,  to  satisfy 
myself  that  he  knew  the  bill  was  not 
stamped  when  he  took  it.  When  he  said 
his  '  lirst  knowledge  '  of  t!ie  fact  was  when 
his  attorney  called  his  attention  to  it,  he 
must  have  meant  that  his  mind  was  never 
directeil  to  that  delect  before  ;  though, 
having  the  bill  in  his  possession,  ho 
clearly  had  the  means  of  knowledge  nearly 
two  months  before.  If  he  'never  gave  it 
a  thought,"  I  do  not  see  how  it  can  be  said 
that  he  knew  it  was  not  stamped,  or  how 
a  man  can  be  said  to  have  knowledge  of  a 
fact  that  he  has  never  thought  of."  See 
House  V.  Hou.se,  24  U.  C.  C.  P.  526, 
under  the  same  act,  and  to  the  same  effect. 
The  dissenting  judgment  of  Wetmore,  J., 
in  the  New  Brunswick  Court,  is  full  of 
absurdities.  See  his  grossly  contradictory 
statements  of  the  evidence  in  the  case  on 
pp.  201,  204,  of  the  report.  Clearly,  in 
such  cases,  having  the  means  of  knowledge 
is  not  equivalent  to  actual  knowledge. 


u 


m. 


I   i 


578 


COMMENTARIES  ON  SALES. 


[book  II. 


the  extent  of  the  cash  payment,  the  advance  of  ^1000  to  A.  not 
amounting  to  a  prepayment,  because  it  was  on  the  general  ac- 
count, and  the  settlement  of  accounts  not  constituting  payment 
as  against  the  plaintiff;  as  an  agent,  whether  acting  on  a  del 
credere  commission  or  not,  is  only  authorized  to  receive  payment 
in  cash,  in  the  absence  of  any  practice  or  custom  to  the  contrary.' 
The  question  came  up  again  in  the  Exchequer  Chamber,  on  ap- 
peal from  the  decision  of  the  Court  of  Common  Pleas,^  in  which 
counsel  for  the  defendant  claimed  that  the  settlement  w^ith  A. 
amounted  to  payment  as  against  the  plaintiff ;  but  that  it  was,  at 
any  rate,  a  question  for  the  jury,  depending  upon  what  authority, 
express  or  implied,  A.  had  from  the  plaintiff'  in  respect  of  the 
mode  of  receiving  payment.  The  court  held  that  it  was  a  ques- 
tion of  fact  for  the  jury,  whether  a  payment  to  a  broker  in 
advance  was  a  good  payment  as  against  the  principal,  depending 
on  the  custom  of  the  trade ;  ^  and  as  that  question  had  not  been 
left  to  the  jury,  the  court  ordered  a  new  trial.  There  was  no 
evidence  on  the  trial  given  of  any  such  custom ;  such  a  question 
was  not  asked  to  be  submitted  to  the  jury,  nor  was  there  any 
such  point  taken  at  the  Court  of  Common  Pleas.  And  there  is 
nothing  in  the  case  in  the  Exchequer  Chamber  to  question  the 
correctness  of  the  decision  in  the  Common  Pleas  in  such  cases  as 
that  was  treated  to  be ;  viz.,  one  in  which  no  such  custom  was 


1  Catterall  v.  Hindle,  L.  R.  1  C.  P. 
186.  Abbott,  C.  J.,  in  Russell  v.  Bang- 
ley,  4  B.  &  Aid.  395,  398,  says:  '^The 
general  rule  of  law  is,  that  if  a  creditor 
employs  an  aj»ent  to  receive  money  of  a 
debtor,  and  the  agent  receives  it,  the 
debtor  is  discharged  as  against  the  prin- 
cipal ;  but  if  the  agent,  instead  of  receiv- 
ing money,  writes  oft'  money  due  from  him 
to  the  debtor,  then  the  latter  is  not  dis- 
charged."    See  Bartlett  v.  Pentland,   10 

B.  &C.  760;    Underwood  v.  Nichols,  17 

C.  B.  329;  Fish  i>.  Kempton,  7  C.  B. 
687;  Scott  v.  Irving,  1  B.  &  Ad.  605; 
Sweeting  v.  Pearce,  9  C.  B.  N.  s.  534. 

2  L.  R.  2  C.  P.  368. 

8  It  was  held  in  Todd  v.  Reid,  4  B.  & 
Aid.  210,  that  an  insurance  broker  is  only 
entitled  to  receive  payment  for  the  as- 
sured  from  the  underwriter  in  money ; 
and,  therefore,  a  custom  to  set  off  the 
general  balance  due  from  the  broker  to 
the  underwriter,  in  the  settlement  of  a 
particular  loss,  is  illegal,  as  an  attempt 
to  establish  a  custom  to  pay  the  debt  of 
one  person  with  the  money  of  another. 
But  the  contrary  was  decided  in  Stewart 
V.  Aberdein,  211,  228,  Lord  Abinger  there 
saying:  "  It  must  not  be  considered  that 
by  this  decision  the  court  means  to  over- 


rule any  case  deciding  that  where  a  prin- 
cipal employs  an  agent  to  receive  money 
and  pay  it  over  to  him,  the  agent  does 
not  thereby  ac(iuire  any  authority  to  pay 
a  demand  of  his  own  upon  the  debtor 
by  a  set-off  in  account  with  him.  But 
the  court  is  of  opinion  that  where  an  in- 
surance broker,  or  other  mercantile  agent, 
has  been  employed  to  receive  money  for 
another  in  the  general  course  of  his  busi- 
ness, and  where  the  known  general  course 
of  business  is  for  the  agent  to  keep  a  run- 
ning account  with  the  principal,  ami  to 
credit  him  with  sums  which  he  may  have 
received  by  credits  in  account  with  the 
debtors,  with  whom  he  also  keeps  running 
accounts,  and  not  merely  with  moneys 
actually  received,  the  rule  laid  down  in 
those  cases  cannot  properly  be  applivid ; 
but  it  must  be  understood  that  where  an 
account  is  bond  fide  settled  according  to 
that  known  usage,  the  original  <lebtor  is 
discharged,  and  the  agent  becomes  the 
debtor,  according  to  the  meaning  and  in- 
tention, and  with  the  authority,  of  the 
principal."  But  see  Sweeting  v.  Pcnrce, 
»  C.  B.  N.  S.  534,  where  Todd  v.  Reid,  4 
B.  &  Aid.  210,  is  approved.  And  see 
Bayley  v.  Wilkins,  7  C.  B.  886  ;  Gabay  v. 
Lloyd,  3  B.  &  C.  793. 


PART   VIII.] 


AGENCY. 


679 


shown  as  is  referred  to  in  the  Exchequer  Chamber.  In  all  such 
cases,  the  law  as  laid  down  in  the  case  in  the  Common  Pleas  was 
not  doubted,  but  rather  was  affirmed ;  and  even  the  ordering  a 
new  trial  at  all  seems,  under  the  circumstances,  to  have  been 
more  than  questionable. 

Tiie  plaintiff  sold  stores  for  a  ship  to  T.,  who  was  ship's  hus- 
band and  managing  owner.  The  defendant  was  part-owner  of 
the  ship,  and  was  also  interested  jointly  with  T.  in  the  adventure 
for  which  the  ship  was  being  fitted  out.  The  plaintiff  applied  to 
T.  for*  payment,  but  did  not  obtain  it.  Three  months  after  the 
goods  were  supplied,  and  .gain  two  years  after  that,  the  defend- 
ant settled  accounts  with  T.,  and  gave  him  credit  for  the  price  of 
the  goods,  supposing  that  they  had  been  paid  for.  More  than 
three  years  after  the  goods  had  been  supplied,  T.  having  become 
bankrupt,  the  plaintiff  for  the  first  time  applied  for  payment  to 
the  defendant  and  brought  his  action  for  the  debt.  The  position 
taken  in  defence  was  that  the  plaintiff  had  been  guilty  of  laches 
in  giving  T.  the  unreasonable  credit  which  he  did,  thereby  elect- 
ing him  as  sole  creditor  and  thus  discharging  the  principal.  This 
view  was  sustained  by  Mathew,  J.,  who  gave  judgment  for  the  de- 
fendant. On  appeal  to  the  Court  of  Appeal  the  judgment  of 
Mathew,  J.,  was  reversed.  The  Court  of  Appeal  held,  that,  in 
order  to  discharge  a  principal  from  his  liability  for  a  debt  con- 
tracted by  his  agent,  the  principal  must  show  that  the  creditor 
has  himself  misled  him  into  supposing  that  he  has  elected  to  give 
exclusive  credit  to  the  agent,  and  that  the  principal  has  been 
prejudiced  by  that  supposition;  that  mere  delay  in  enforcing 
payment  from  the  agent  will  not  be  sufficient  for  the  purpose ; 
<and  that  there  had  been  no  such  conduct  on  the  part  of  the  plain- 
tiff as  would  discharge  the  defendant  from  his  liability.^ 


1  Davison  v.  Donaldson,  9  Q.  B.  Div. 
623.  In  discussing  the  questions  involved 
in  tlie  case,  where  the  principal  knew  that 
tilers  was  a  seller,  the  observations  of 
Jessel,  M.  R.,  as  a  whole,  accord  with  the 
principles  we  have  laid  down,  as  an  ex- 
planation of  the  cases,  in  our  note,  supra, 
to  Armstrong  v.  Stokes,  L.  11.  7  Q.  B.  598. 
He  says :  "No  doubt  there  is  a  well- 
known  principle  of  equity  which  has  been 
loiif;  acted  on,  sometimes  by  the  courts  of 
equity,  and  sometimes  by  the  courts  of 
common  law,  for  the  equity  is  the  same 
in  both  courts,  that  if  the  defendant  has 
Wen  misled  by  the  plaintiff,  either  by  his 
words  or  his  conduct,  to  believe  that  which 
is  not  true,  so  that  his  position  is  altered, 
the  plaintifT  cannot  lie  heard  to  deny  the 
truth  of  what  he  has  thus  led  the  defend- 
ant to  believe.    This  is  well  laid  down  in 


Irvine  e'.  Watson,  5  Q.  B.  Div.  414.  In 
that  case  the  def'eiidiints  had  paid  the 
broker,  and  the  question  was  whether  that 
discharged  their  liability  to  the  ])laintiil's. 
liraiuwell,  L.  J.,  says  (ibid.,  p.  41G)  :  '  I 
think  it  inipossiljle  to  say  that  it  discharged 
them,  unless  they  were  niislcd  by  some  con- 
duet  of  the  plaiiitill's  into  the  belief  that  the 
broker  had  already  settled  with  the  plain- 
tiffs, and  made  such  jiayment  in  conse- 
quence of  such  belief.'  Now,  assuming 
that  there  is  no  distinction  in  this  re.spect 
between  a  partnership  and  a  case  of  prin- 
cipal and  agent,  that  observation  applies 
exactly  to  this  case.  The  payment  which 
the  defendant  made  was  not  made  in  con- 
sequence of  being  misled  by  the  plaintiff. 
The  mere  fact  that  by  the  conduct  of  the 
plaintiff  he  lost  the  opportunity  of  getting 
the  money  back,  is  not  sufficient.    Then 


!  1 


1', 
V-  '■ 

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h 
i' ' 

1 

r  ; 

i    1 

['■  i 

. 

1 

1 
i 
i 

i 
i: 

i' 

!  ,  ■ 

- 

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i; 

i, 

I           ■■' 
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1 

!  ■  ■ 

i      k 

I-  Hi 
i"  I 


!;■  ''■ 


680 


COMMENTARIES  ON  SALES. 


[book  II. 


The  Supreme  Court  of  the  United  States  in  Parsons  v.  Arnior,i 
in  the  case  of  an  order  by  a  principal  in  Boston  to  his  agent  in 


Brtggallay,  L.  J.  {Ibid.,  418),  speaking  of 
Park(!,  B.'s  observations  in  liuald  «.  Ken- 
worthy,  5  Q.  H.  Uiv.  418,  says:  'He 
sought  to  limit  the  (lualilioutiou  of  the 
general  rule  to  cases  in  whidi  tliu  seller 
by  some  condnet  has  niislcd  the  buyer 
into  believing  that  a  settlement  lias  been 
made  witli  th(!  agent.  And  if  tliut  limita- 
tion is  correct,  1  am  of  opinion  that  there 
is  no  such  payment  as  could  ilischarge  the 
defendants.'  And  Hntt,  L.  .1.,  says  (5  Q. 
B.  Div.  420);   '  And  I'arko,  H.,  alter  citing 


the  price  became  due  in  cash,  minus  dis. 
count,  on  the  last  Friday  in  October,  1857. 
H.  had  been  employed  for  several  years 
by  the  defendant  (who  was  a  merchant  in 
England  and  Canada),  to  buy  goods  fur 
him,  and  tlio  course  of  dealing  bitwcoii 
them  was  for  the  defendant  to  give  H. 
accej)tances  from  time  to  time,  at  four 
months,  in  order  to  keep  him  in  funds  tu 
meet  the  current  account.  The  shirtiiij,'3 
were  bought  by  H.,  pursuant  to  orders 
from  the  defendant,  and  being  sold  by  lli" 


the  diii.aiii  of  Baylcy,  .F.,  to  the  ell'cct  that     plaintiif  "in  tlie  gray,"  H.  got  them  fin- 


the  seller  cannot  sue  the  principal  if  the 
state  of  the  accounts  between  the  princi- 
|)al  and  the  amuit  would  make  it  ineijuita- 
l)Ie  that  he  should  do  so,  proceeds  to  ask 
what  equity  there  can  bo,  unless  it  is 
something  arising  out  of  the  conduct  of 
the  seller,  sometliing  to  induce  the  de- 
fendant to  believe  that  a  settlement  has 
already  been  made  with  the  agent.'  And 
then  referring  to  Armstrong  v.  Stokes,  L. 
K.  7  Q.  15.  598,  lie  says  :  '  Probaldy  this 
decision  means  this,  that  loheii  tlo'.  seller 
deals  with  the  agent  as  sole  principal,  and 
the  nntare  of  the  (i(ient.'s  business  is  such 
that  the  buyer  ought  to  believe  that  the 
seller  has  so  dealt,  in  such  a  case  it  would 
he  unjust  to  allow  the  seller  to  recover  from 
the  principal  after  he  paid  the  agent.'  All 
the  judges  agreed  in  laying  down  that, 
where  the  seller  knows  that  there  is  a 
princi[)nl  behind  the  person  with  whom 
ho  is  dealing  [that  is,  in  effect,  where 
the  credit  is  not  given  solely  to  the  agent], 
lie  must  bo  shown  to  have  done  some- 
thing which  raises  an  equity  against  him, 
otherwise  the  princi|ial  is  not  discharged  ; 
though  1  am  far  from  saying  that  there 
may  not  be  special  cases  in  which  mere 
delay  on  the  part  of  the  jilaintiff  would 
be  held  to  be  sufficiently  misleading  con- 
duct ;  it  may  amount  to  a  representation 
that  he  has  been  paid."  The  case  of 
Smethurst  v.  Mitchell,  28  L.  J.  Q.  !i.  241, 
is  a  case  very  similar  to  that  of  Armstrong 
V.  Stokes,  L.  R.  7  Q.  B.  598,  and  goes  far 
towards  according  with  the  views  we  have 
expressed,  and  the  principles  we  have 
Btated,  in  our  note  to  the  latter  case.  See 
supra,  p.  561  et  seq.,  note.  In  Smethurst 
V.  Mitchell,  28  L.  J.  Q.  B.  241  (also  re- 
ported 1  E.  &  E.  622),  H.,  who  was  a 
commission  agent,  ordered  of  tlie  plaintiff 
shirtings,  in  August  and  September,  1857, 
which  were  entered  in  the  plaintiffs  books 


ished,  and  invoiced  tliem  from  hinisidf  to 
the  defendant,  charging  the  cost  juice  of 
the  goods  and  of  tinishing,  and  a  coniiiiis- 
sion  to  himself  of  two  per  cent.;  and  tlie 
goods  when  finished  were  sent  by  II.  to 
be  shipped  on  the  defendant's  account  to 
Canada.  The  <lefendant  suspended  pay- 
ment on  Octolier  13  ;  but  he  had  sent  lie- 
twcen  that  day  and  August  acceptaiicos 
more  than  sufHcient  to  cover  the  \mw  of 
the  shirtings  and  all  other  orders,  and  II. 
had  discounted  the  bills,  which  had  thus 
got  into  the  hands  of  third  persons,  but 
ho  did  not  pay  the  plaintiff  on  the  last 
Friday  in  October,  or  at  any  other  tiiiii'. 
On  October  16,  H.  sent  the  defendant  his 
account  current,  including  the  invoice  ibr 
the  shirtings  and  for  other  goods,  and  lio 
credited  himself  with  the  price  of  the  goods, 
and  debited  himself  with  the  amount  of 
the  bills,  the  balance  being  in  tlie  dcfciiil- 
ant's  favor.  At  the  time  of  the  purchase 
the  plaintiff  knew  that  H.  was  a  coniiiiis- 
sion  merchant,  but  knew  nothing  of  tlio 
defendant,  nor  that  the  shirtings  were  for 
liim.  In  November,  1857,  the  pliiintilF 
was  informed  by  H.  that  the  defendant 
was  the  principal  in  the  pundiase  ;  but  he 
took  no  proceedings  whatever  in  the  iiiiit- 
ter  till  .September,  1858,  when  he  com- 
menced an  action  against  the  defciidiMit. 
After  the  i)laintiff  had  been  informed  tli.it 
the  defendant  was  the  princi])al,  the  tit'- 
fendant  arrangeil  to  take  up,  among  otln'i-s, 
the  bills  which  had  been  given  to  11.,  by 
giving  promissory  notes  for  the  amnMiit; 
and  when  these  notes  became  ilue  (lu'lore 
September,  1858),  a  fresh  arrangemtMit  was 
entered  into  with  the  creditors  at  1 2-f.  M. 
in  the  pound,  for  which  the  defendant 
gave  fresh  acceptances,  which  were  .'•till 
running  at  the  time  of  action  brt)iit.'lit. 
H.  was  a  party  to  both  renewals.  At  tiie 
trial  it  was  contendeil  for  the  defeiulant, 


to  H.  as  the  purchaser,  and  the  goods  and  that,  on  the  facts,  it  was  not  a  matter  of 
invoices  were  sent  to  hiin,  debiting  him  agency  at  all,  and  that  the  defenilant's 
with  the  price.     By  the  course  of  dealing    credit  was  not  pledged,  or  intended  to  be 

»  3  Pet.  413. 


PART   VIII.] 


AGENCY. 


581 


New  Orleans,  decided,  1.  That  the  agent,  having  been  authorized 
to  buy  goods  for  his  principal,  and  pay  for  thcui  by  funds  raised 
by  drawing  bills,  could  not  make  his  principal  debtor  for  the 


pledged  ;   but  thnt  it  was  only  n  sali!  from 
thu  pliiititiH'  to  II.,  mid  from  him  to  tLu 
defendant.    Thu  jury,  liowevcr,  found  that 
the  ituruiiase  \va.s  made  by  H.  as  aj^ent  of 
the  defendant.    But,  notwitliHlandinf^  this, 
Hill,  J.,    raised   the  qucvrc, —  "Is   that 
sutli<'ii'nt  to  charge  the  |irinci|)al  ?  or  must 
not  thu  assent  be  authorized  to  jiledgu  his 
jirineiiial's  credit?"    And  again,   "There 
may   be  a  distinction   between   the   case 
where  the  seller  knows  he  is  dealing  with 
the  agent  of  an  undisclosed  principal,  and 
that  where  he  does  nut  know  that  there  is 
a  principal  in  the  matter.     In  the  former 
case  it   nniy   well   be,   that  tlu!  seller  is 
bound  to   make  intiuiries,  and  elect  be- 
tween the  agent  and  the  principal  as  soon 
as  the    'me   for  payment  arrives  ;  or,  at 
any  rate,  that  he   vwtj  he,  hound  by  any 
change   in   the   account    between  the  arjent 
and  principal  to  the  prejudice  of  the  hitler 
after  that  time."     In  deciding  the  case, 
the   court   held  that,  even  assuming,   on 
the  finding  of  the  jury,   the  plaintilf  to 
have  liad  the  right  in    November,   IS.*!? 
(when  he  first  knew   that  the  defendant 
was  the  primeipal),  to  elect  between  the 
defendant  and  H.,  lie  must  be  taken  from 
his   conduct  actually  to  have  elected  to 
make  11.  his  debtor  ;  or  that,  having  made 
no  election,  lie  had,  by  lying  by  for  nine 
months,  allowed  the  defendant  to  change 
his  position  to  his  prejudice  ;   and  that,  in 
cither  view,  he  could  not  recover  against 
the    defendant.       The    court   also   ipies- 
tioned,  whether,  H.  not  having  authority 
to  pledge  the  defendant's  cretlit,  the  i)lain- 
tiir  had  a  right  of  election  in  November, 
1857  ;  and,    also,    whether  the   plaintiff, 
knowing  H.  to  be  only  an  agent,  ought 
not,  in  order  to  be  able  to  charge  the  prin- 
cipal, to  have  made  inquiries  for  the  prin- 
cipal's name  when  thu  day  for  payment 
arrived.    We  find  that  the  able  counsel 
in  this  case  (Wilde),  took  very  much  the 
same  position  that  we  have  taken  in  our 
note  to  Armstrong  v.  Stokes  {ante,  p.  561 
et  :<eq. ),  both  as  to  the  holding  of  the  court 
in  Hcald  v.  Kenworthy,  10  Ex.  739,  and 
as  to  the  correct  principle  by  which  this 
class  of  cases  is  governea.     He  says  ;  "  In 
Heald   V.  Kenworthy,  the  court  assumed 
that  it  appeared  from  the  p/endings  thxit 
the  agent  to  whom  the  defendant  had  paid 
for  the  goods,  was  agent  to  pledge  tlie  de- 
fendant's credit  with  the    plaintiffs,  and 
they    held,   that   mere  payment    to  the 
agent  was  not  sufficient  to  discharge  the 
principal ;  but  that  he  must  go  on  and  show 
that  the  plaintiff  had  induced  the  pay- 


ment to  the  agent.  Hut  if  the  agent  be 
not  authorized  to  pledge  the  I'linripal's 
credit,  it  does  not  follow  that,  in  such  a 
case,  the  conduct  of  the  seller  must  be 
shown  ;  and  the  present  case  is  more  like 
that  of  a  mere  servant  authorized  to  pur- 
chase goods  for  cash,  in  which  rase  the 
master  is  not  liable  if  the  servant  obtains 
the  goods  on  credit.  It  may  well  be  sufH- 
cient  to  bar  an  action  against  the  priiici- 
jial  where  the  agent  had  no  authority  to 
pledge  his  piincipal's  credit,  if  the  ac- 
count between  them  has  been  altered  to 
the  ])rejudice  of  the  hitter,  whether  the 
seller's  conduct  induced  the  alteration  or 
not."  We  concur  in  this  view,  which  is 
virtually  the  same  as  that  exinessed  in 
our  note  to  Armstrong  v.  Stokes,  supra. 

In  llailroad  Co.  v.  llaniiiiig,  ''^t  Wall. 
649,  the  court  adojited  the  following  as 
thu  rulu  with  reference  to  the  responsibil- 
ity of  the  principal  for  the  acts  done  by 
the  agent :  The  principal  is  liable  for 
the  acts  and  negligence  of  the  agent  in 
the  course  of  his  employment,  although 
he  did  not  authorize  or  did  not  know  of 
the  acts  complained  of.  So  long  as  he 
stands  in  the  relation  of  principal  or  mas- 
ter to  the  wrong-doer,  the  owner  is  re- 
sponsible for  his  acts.  When  he  ceases 
to  be  such  and  the  actor  is  himself  the 
principal  and  master,  not  a  servant  or 
agent,  he  alone  is  responsible.  Applying 
these  principles  to  the  case  where  the 
respondent  liad  brought  an  action  for 
damages  received  by  him  in  crossing  the 
company's  premises  ;  the  court  held,  that 
as  the  injury  was  caused  by  work  being 
done  for  the  company  by  a  contractor, 
under  the  direction  of  the  company's  en- 
gineer, who  was  to  direct  and  sujiervise 
the  work  ;  the  power  of  controlling  and 
managing  the  entire  performance  of  the 
work  being  generally  in  the  company,  in- 
cluding the  possession  of  the  premises, 
and  the  direction,  managenient,  and  con- 
trol of  all  the  details  of  the  work,  the 
company  were  liable  for  damages  received 
by  the  respondent,  caused  by  the  negli- 
gence of  their  contractor.  And  see  Hil- 
liard  v.  Richardson,  3  Grny,  359  ;  Scain- 
mon  V.  City  of  Chicago,  25  "ill.  425  ;  Pack 
V.  Mayor  of  New  York,  4  Seld.  222  ;  Kelly 
I'.  Mayor,  11  N.  Y.  432  ;  Camp  v.  Tlie 
Wardens,  7  La.  An.  322 ;  Painter  v. 
Mayor,  46  Pa.  St.  213  ;  Storrs  v.  City 
of  Utica,  17  N.  Y.  104  ;  Higgins  v.  The 
Watervliet  Turnpike  Co.,  46  N.  Y,  23  ; 
Bobbins  v.  Chicago,  4  Wall.  679. 


'i'  i 


■<.\l 


1;   ' 


i    ' 

•.{ 


582 


COMMENTARIES  ON  SALES. 


[book  II, 


prico  of  the  goods ;  2.  That,  if  the  principal  instructs  his  agent 
to  purchase,  und  pay  out  of  funds  in  his  hands,  and  the  vendor 
has  notice  uf  this  instruction,  and  the  agent  draws  on  the  princi- 
pal in  favor  of  the  vendor  in  payment  for  tlic  goods,  the  principal 
is  not  bound  to  accept,  and  the  vendor  cannot  charge  him  with 
the  j)ricc. 

In  Laccy  v.  Hill,'  it  was  held  that  stockbrokers  who  have  with 
their  own  money  purchased  stock  for  a  princi,)al  were  justified  in 
immediately  selling  the  stock.  Under  such  circumstances  the 
stockbrokers  have  a  claim  against  tlie  estate  of  tiie  principal  for 
the  balance  due  to  them  on  the  account,  which  balance  is  subject 
to  deduction  for  any  loss  which  may  have  been  incurred  by  selling 
before  the  next  settling  day.^ 

There  may  be  cases,  where,  as  between  themselves,  parties 
dealing  with  each  other  may  intend  to  do  so  in  the  capacity  of 
principal  and  agent,  but  their  mode  of  dealing  may  be  such  as  to 
constitute  them,  in  fact,  vendor  and  vendee.  A  similar  effect 
may  also  occur  in  any  other  branch  of  the  contract  of  sale,  or  iu 
any  other  contract.  The  intention  of  the  parties,  which  is  the 
very  base  of  the  contract,  is,  as  we  have  stated  more  than  once, 
to  be  got  at,  not  only  by  the  declarations  of  the  parties,  but  by  a 
consideration  of  the  3r.bjcet  of  the  contract  and  the  surrounding 
circumstances  as  well.  And  it  not  unfrequcntly  happens  that  the 
express  declarations  of  the  parties  as  to  their  intention  are  over- 
ridden by  the  contract  considered  as  a  whole,  by  the  acts  of  the 
parties,  or  by  the  circumstances  surrounding  the  contract  and 
considered  with  it.  The  cases  are  numerous  where  this  is  held : 
in  cases,  for  instance,  where  time  has  been  held  to  be  not  of  the 
essence  of  the  contract,  though  expressly  declared  in  the  contract 
that  it  shall  be ;  and  where,  not  to  multiply  instances,  it  has 
been  stated  in  a  contract  that  certain  amounts  shall  be  liquidated 
damages  and  not  a  penalty  ;  and,  from  the  other  language  of  the 


«  L.  R.  8  Ch.  Ap.  921. 

*  Treating  the  facts  in  the  case  as  though 
no  question  of  the  usage  of  the  Stock 
Exchange  were  relied  on,  Mellish,  L.  J., 
says  :  "  I  am  not  aware  that  there  is  any 
ililference  between  the  purchase  of  stock  or 
shares  and  the  purchase  of  wheat  or  cotton. 
If  a  broker  has  purchased  a  quantity  of 
cotton,  or  other  goods,  and  has  paid  for  it 
out  of  his  own  money,  and  has  got  an 
order  from  his  principal  that  he  may  sell 
tor  the  purpose  of  recouping  himself  the 
amount  which  he  has  actually  paid,  but 
the  principal  has  told  him,  '  I  think  you 
had  oetter  not  sell  till  the  first  of  August,' 
and  he  being  afraid  the  market  will  fall 
sells  a  fortnight  too  soon,  that,  upon  the 


ordinary  principles  of  law,  would  not 
entirely  deprive  him  of  his  right  to  re- 
cover. He  would  still  be  entitled  to  re- 
cover the  amount  he  had  laid  out  on  beliiilf 
of  the  principal ;  but  the  principal  would 
have  a  counter-claim  against  him  for  dam- 
age, if  any,  which  might  have  resulted 
from  the  fiict  of  selling  a  fortnight  earlier 
tliau  he  ought  to  have  done.  But  if  it 
turned  out  tliat  the  market  kept  continu- 
ally falling  during  the  fortnight,  so  tliat 
the  sale  was,  in  fact,  a  gain  to  the  prin- 
cipal's estate,  in  that  case  there  would  l* 
nothing  to  recover."  See  Duncan  v.  Hill, 
L.  R.  6  Ex.  255  ;  L.  R.  8  Ex.  242 ;  Leney 
■;.  Hill,  L.  K.  8  Ch.  App.  441. 


PART  vni.] 


AOENCr. 


683 


contract  and  the  surrounding  circumstancca,  the  contrary  of  this 
has  been  held.  The  case  of  £x parte  White,  In  re  Neville^  is  one 
such  as  we  have  referred  to  above,  whf  re  the  parties  seemed  to 
look  upon  their  relative  position  as  tliat  of  principal  and  aj^ent; 
whereas,  from  their  course  of  dealing,  they  were  held  to  bo  vendor 
and  vendee.  The  facts  are  thus  summarized  •  T.  &  Co.  were  in 
the  habit  of  sending  goods  to  N.  for  sale.  N.  was  a  partner  in  the 
firm  of  N.  &  Co.,  but  received  these  goods  on  his  private  account. 
Tlie  course  of  dealing  between  T.  &  Co.  and  N.  was  that  the 
goods  were  accompanied  by  a  price-list.  N.  sold  the  goods  on 
what  terms  he  pleased,  and  each  month  sent  to  T.  &  Co.  an 
account  of  the  goods  he  liad  sold,  debiting  himself  with  the  prices 
named  for  them  in  the  price-list,  and  at  the  expiration  of  imother 
month  he  i)aid  the  amount  in  cash,  without  any  regard  t  >  the 
prices  at  which  he  had  sold  the  goods  or  the  length  of  credit  ho 
liad  given.  He  paid  the  money  which  he  had  receivo  i  from  the 
sales  into  the  general  account  of  his  firm,  and  made  his  paynionts 
to  T.  &  Co.  throufl'  his  firm,  with  whom  he  kept  an  account  of 
moneys  paid  in  and  drawi\  out  by  him  in  respect  of  moneys 
unconne  •  d  with  the  partnership,  which  account  included  many 
items  wholly  unconnected  with  the  goods  of  T.  <fe  Co.  N.  (t  Co. 
having  executed  a  deed  of  arrangement  with  their  creditors,  T.  «fe 
Co.  sought  to  prove  against  the  joint  estates  for  the  amount  stand- 
ing to  N.'s  credit  with  his  firm,  on  the  ground  that  the  same  arose 
from  moneys  belonging  to  T.  &  Co.,  which  were  improperly  jilaccd 
by  N.  in  the  hands  of  his  firm.  It  was  held,  reversing  the  decision 
of  the  court  below,  that  such  proof  could  not  be  admitted ;  for 
that  the  course  of  dealing  showed,  that,  although  both  parties 
might  look  upon  the  business  as  an  agency,  N.  did  not,  hi  fact, 
sell  the  goods  as  agent  of  T.  &  Co.,  but  on  his  own  account,  upon 
the  terms  of  his  paying  T.  &  Co.  for  them  at  a  fixed  rate  if  he 
sold  them,  and  the  moneys  he  received  for  them  were,  therefore, 
his  own  moneys,  which  T.  <fe  Co.  had  no  right  to  follow.^ 


1- ' 


1  L.  K.  6  Ch.  Ap.  397. 

*  In  dt'livei'ingjudgment,  James,  L.  J., 
put  the  following  case,  iis  analogous  to 
that  which  they  were  deciding  :  "  If  a 
liublisher  publishes  for  an  author,  and 
sells  for  the  author,  and  holds  all  the 
copies  of  the  book,  and  nt  some  specified 
time  has  to  return  to  the  author  an  ac- 
count of  all  those  sold,  and  pay  for  them 
at  a  price  fixed  between  the  author  and 
the  publisher,  the  publisher  being  at  lib- 
erty to  make  his  own  bargain  with  retail 
booksellers  all  over  the  country,  it  could 
never  be  supposed  that  the  relation  of 
creditor  and  debtor  or  vendor  and  pur< 


chaser  ever  existed  between  the  author 
and  the  retail  booksellers."  And  Mel- 
lish,  L.  J.  :  "1  do  not  say  that  it  is  not 
possible  for  parties  to  make  a  bargain 
under  which  the  consignee  may  receive  in 
his  remuneration  whatever  the  goods  fetch 
above  a  certain  /vice,  and  yet  sell  them 
as  agent  ;  but  U.e  question  is  whether 
such  a  bargain  is  to  be  interred  in  the 
present  case.  If  A.  hands  ovei  ^ is  goods 
to  B.,  and  B.  is  to  pay  him  a  certain  ])rice 
if  he  sells,  but  is  at  liberty  to  sell  on  what 
terms  he  pleases,  and  H.  then  sells  to  C, 
the  natural  inference  from  these  facts  is, 
beyond  all  doubt,  that  there  is  a  sale 


;    !  ;h 


684 


COMMENTARIES  ON  SALES. 


[book  II. 


In  Riggs  V.  Lindsay  *  it  was  held,  that  the  defendants  having 
ordered  the  plaintiff  ^o  purchase  salt  for  them,  and  he  having  so 
purchased  and  drawn,  they  were  bound  to  accept  and  pay  his 
laills;  and  if  they  did  not,  he  might  recover  from  them  the 
amount  of  the  bills  and  damages  and  costs  of  protest  (if  he  had 
paid  the  same),  upon  a  count  for  money  paid,  laid  out,  and  ex- 
pended, and  the  bill  of  exchange  might  be  given  in  evidence  on 
that  Count.  If,  after  the  protest  of  the  bills,  the  plaintiff  sold 
the  salt  without  orders,  it  should  not  prejudice  his  right  of  action, 
although  he  rendered  no  account  of  sales  to  the  defendants.  In 
this  case  the  proceeds  of  the  salt,  as  admitted  by  the  plaintiff's 
counsel,  were  deducted  from  tlie  plaintiff's  demand,  and  a  verdict 
was  rendered  for  the  balance.^ 

Different  rules  prevail  in  respect  to  the  acts  and  declarations 
of  public  agents  from  those  which  ordinarily  govern  in  the  case 
of  mere  private  agents.  Principals,  in  the  latter  category,  are  in 
many  cases  bound  by  the  acts  and  declarations  of  their  agents, 
ev.  n  when  the  act  or  declaration  was  done  or  made  without  any 
authority,  if  it  appear  that  the  act  was  done  or  declaration  was 
made  by  the  agent  in  the  course  of  his  regular  employment ;  but 
the  government,  or  public  authority,  is  not  bound  in  such  a  case, 
unless  it  manifestly  appears  that  the  agent  was  acting  within  the 
scope  of  his  authority,  or  that  he  had  been  held  out  as  having 
authority  to  do  the  act,  or  was  employed  in  his  capacity  as 
a  public  agent  to  do  the  act  or  make  the  declaration  for  the 
government.^  Although  a  private  agent,  acting  in  violation  of 
specific  instructions,  may  bind  his  principal,  the  rule  as  to  the 
effect  of  the  lilio  act  of  a  public  agent  is  otherwise,  for  the  reason 
that  it  is  better  that  an  individual  should  occasionally  suffer  from 


made  to  B.,  and  another  atle  from  B.  to 
C,  and  all  the  ciruuinstaiices  contirni  the 
view  that  such  was  tlie  nature  of  the  deal- 
ing here."  This  is  very  similar  to  one  of 
the  cases  put  by  us  in  our  note  to  Arm- 
strong V.  Stokes,  supra.  See  Benjamin  v. 
Porteous,  2  H.  31.  590  ;  Dixon  v.  Cooper, 
3  Wils.  40  ;  Baker  v.  Bent,  3  T.  R.  27. 

Authority,  without  restriction,  to  an 
agent  to  sell,  carries  with  it  authority  to 
warrant.  Schuliardt  v.  Aliens,  1  Wall. 
359,  369  ;  Andrews  v.  Kneeland,  9  Cow. 
364 ;  The  Monte  Allegre,  9  Wheat.  616. 
See  Mulhall  v.  Keenan,  18  Wall.  342,  in- 
volving a  (juestion  of  evidence,  whether 
the  defendant,  in  making  purchases  of 
cattle,  acted  as  principal  or  agent. 

»  7  Granch,  600. 

"  On  this  point  the  Supreme  Court  of  the 
United  States  say  :  "  Nor  did  the  plaintitTs 
wiling  the  salt  after  he  had  taken  up  these 


bills  destroy  his  right  of  action  against 
the  defendants.  If  he  has  acted  irregu- 
larly in  so  doing,  he  will  be  liable,  in  a 
proper  action,  for  the  damages  which  the 
defendants  have  sustained  by  such  con- 
duct ;  but  such  sale  could  not  be  pleaded 
or  set  up  in  bar  to  the  present  suit.  Nor 
will  the  defendants,  under  the  circimi- 
stances  of  this  case,  be  injured  by  the 
sum  which  the  jury  liave  discounted  from 
the  plaintifTs  demand,  if  it  shall  hen>nftt>r 
appear,  that  as  much  was  not  allowed  the 
defendants  on  that  account  as  ought  to 
have  been."  See  Church  v.  Abell,  1  Cnn. 
S.  0.  B.  442,  where  lamentable  ignorance 
as  to  the  principle  governing  the  right  to 
bring  a  cross-action  is  shown.  We  state 
the  case  fully  in  a  later  volume  of  this 
work. 

«  Whiteside  v.  United  States,  93  U.  S. 
247  ;  Lee  v.  Munroe,  7  Cranch,  376. 


PART   VIII.] 


AGENCY. 


585 


the  mistakes  of  public  officers  or  agents  than  that  a  rule  should 
be  adopted  which,  through  improper  combinations  or  collusion, 
might  be  turned  to  the  detriment  and  injury  of  the  public* 
Individuals  as  well  as  courts  must  take  notice  of  the  extent  of 
authority  conferred  by  law  upon  a  person  acting  in  an  official 
capacity,  and  the  rule  applies  in  such  a  case  that  ignorance  of  the 
law  furnishes  no  excuse  for  any  mistake  or  wrongful  act.* 

Where  a  vendor  employed  a  broker  to  sell  property  in  Louisi- 
ana, and  the  broker  sold  the  property  on  terms  satisfactory  to 
both  vendor  and  vendee,  but  the  vendor  subsequently  refused  to 
complete  the  sale,  the  Supreme  Court  held  that  the  broker  was 
entitled  to  his  commission.  The  principle  is  the  same  whether 
the  property  is  real  or  personal.^ 


1  Mayor  v.  Eschback,  17  Md.  282. 

2  State  i;.  Haves,  62  Mo.  £578  ;  Dela- 
field  i>.  State,  2ti  Wend.  238 ;  People  v. 
Bank,  21  Wend.  431  ;  Mayor  u.  Reynolds, 
20  Md.  10.  An  attorney-at-law,  virtnte 
officii,  liaa  no  authority  to  purcbn.se  prop- 
erty iu  the  name  of  his  client,  and  wliero 
the  client  repudiates  any  such  authority, 
the  burden  of  proof  to  sustain  it  is  on 
those  who  seek  to  sustain  acts  done  under 
such  alleged  authority.  Savery  v.  Sypher, 
6  Wall.  157.  The  United  States  are  not 
bound  by  the  declarations  of  their  agent, 
founded  upon  a  niistuke  of  fact,  unless  it 
clearly  apj^ar  that  the  agent  was  acting 
within  the  scope  of  his  authority,  and  was 
empowered  in  his  capacity  of  agent  to 
make  such  declaration.  Lee  v.  Munroe,  7 
Cranch,  366. 

Facts  brought  to  the  knowledge  of  an 
attorney  in  his  in(iuiries  for  his  clients 
respecting  a  specific  matter  are  considered 
in  law  as  brought  to  their  knowledge.  In- 
formation to  him  of  all  essential  matters 
affecting  tlie  subject  he  was  investigating 
is  in  law  information  to  them,  and  their 
action  must  be  adjudged  accordingly.  The 
law,  indeed,  goes  much  further  than  this. 
It  considers  tlu!  principal  as  aftectcd  with 
notice  of  all  facts,  notice  of  which  (;nn  bo 
charged  upon  the  attorney.  Smith  v, 
Ayer,  101  U.  S.  320,  325. 

Money  dejiosited  with  bniloes  to  bn 
paid  over  by  them  when  certain  /"cord 
Dooks  which  hatl  l)een  stolen  were  i)laced 
in  the  posst.ssion  of  the  bailees,  and  '.vliich 
was  paid  over  by  them  in  good  faith  on 
the  receipt  of  the  books,  was  held  to  have 
been  properly  paid  over,  although  there 
were  slight  injuries  in  some  of  the  recoi-d 
books  when  received.  The  court  expressed 
the  opinion  that  if  the  bailees,  as  agents 
of  the  county  owning  the  record  books, 
had  refused  to  receive  them  for  such  a  rea- 
son, the  county  would  Sen  have  had  a 
stronger  cause  of  action  against  their  agents 


for  breach  of  their  duty.  Eldridge  v.  Hill, 
97  U.  S.  92. 

In  Tweed's  Case,  16  Wall.  504,  the 
claimant  contracted  with  an  agent  of  the 
treasury  department,  under  the  act  of 
Congress  of  Ju'y  2,  1864  (12  Stat,  at 
Large,  820),  to  Lay  cotton  in  the  Confed- 
erate States,  which  had  previously  be- 
longed to  the  Confederate  Government, 
three-fourths  of  cotton  so  purchased  to 
belong  to  the  claimant  and  one-fourth  to 
the  United  States.  In  addition  to  pur- 
chases so  made  by  him,  he  made  other 
purchases  of  cotton  which  had  not  be- 
longed to  the  Confederate  Government. 
The  United  States  claimed  one-fourth  of 
this  cotton  as  well  as  of  the  other.  Tlio 
Court  of  Claims  held,  aflirmed  by  tlie 
United  States  Supreme  Court,  that  they 
were  not  entitled  to  it.  Altliough  Bradley 
and  Davis,  JJ.,  dissented  fiom  this  de- 
cision, we  can  find  nothing  in  the  case  to 
warrant  any  difference  of  opinion  on  the 
simple  question  it  involves. 

The  United  States  Government  is  not 
responsible  for  the  laches  or  wrongful  acts 
of  its  ollicors.  A  government  may  be  a 
loser  by  the  negligence  of  its  olKcei-s,  but 
it  never  becomes  bound  to  others  for  the 
conse(jucnces  of  such  neglect,  unless  it 
be  by  express  agreen»ent  to  that  effect. 
Hart  V.  United  States,  95  U.  S.  316;  Gib- 
bonsr.  United  States,  8  Wall.  269  ;  United 
States  V.  KirKpatrick,  9  Wheat.  720 ; 
United  States  v.  Vanzandt,  11  Wheat.  184  ; 
United  States  v.  Nicholl,  12  Wheat.  605  ; 
Jones  V.  United  States,  18  Wall.  662. 

A  power  to  a  general  agent  of  a  railway 
company  to  make  contracts  and  agree- 
ments U)r  borrowing  money  and  making 
purchases  of  railroad  iron,  includes  an  au- 
thority to  give  collaterals  as  a  security  for 
the  money  borrowed,  or  for  the  payment 
of  a  debt  incurred  for  the  iron  purchased. 
Hatch  V.  Coildington,  95  U.  8.  48. 

■  Rock  V.  Emmerling,  22  How.  69.  The 


.1     . 


Ml  ! 


i;N 


i  'I- 


586 


COMMENTARIES  ON  SALES. 


[book  II. 


The  case  of  Pearson  v.  Scott*  was  decided  on  the  principle  laid 
down  by  Lord  Tenterden,  in  Bartlett  v.  Pentland,^  that  an  au- 
thority given  by  a  principal  to  his  agent  to  receive  money  cannot 
be  construed  into  an  authority  not  to  receive  money,  but  to  allow 
the  debtor  to  write  off  as  much  as  may  be  due  from  the  agent  to 
him.  Thus,  the  plaintiffs,  Pearson  and  others,  executors,  holding 
stock  in  their  name,  directed  their  solicitor  to  sell  the  stock.  The 
solicitor,  in  the  name  of  his  firm,  gave  to  a  stockbroker,  the  de- 
fendant Scott,  whom  the  solicitor  had  employed  in  Stock  Exchange 
speculations,  directions  to  sell  the  stock.  The  stock  was  sold  by 
the  defendant,  and  the  solicitor  returned  to  the  stockbroker  trans- 
fers of  the  stock,  with  receipts  indorsed,  signed  by  the  executors. 
The  sale  was  completed,  and  the  defendant  sent  to  the  solicitor  a 
cheque  for  part  of  the  purchase-money  for  the  shares,  and  carried 
the  balance  on  the  transaction  to  the  credit  of  the  solicitor  in  the 
account  between  them,  which  account  was  afterwards  settled  by 
a  payment  made  to  the  stockbroker.  Held,  tliat,  under  the  cir- 
cumstances, tlie  stockbroker  must  be  held  to  have  had  notice  tliat 
the  shares  were  not  the  property  of  the  solicitor,  and  that,  though 
the  solicitor  had  from  the  executors  authority  to  receive  the  pur- 
chase-money, payment  to  him,  by  giving  him  credit  in  an  account 
between  them,  was  not  sufficient  to  discharge  the  stockbroker,  the 
defendant,  who  remained  liable  to  the  executors  for  the  balance.^ 

Barken;.  Greenwood,  2  Y.  &  C.  Ex.  414, 
419;  Scott  V.  Irving,  1  B.  &  Ad.  605,  614. 
In  Sweeting  v.  Pearce,  7  C.  B.  N.  s.  449, 
485  (affirmed  9  C.  B.  n.  s.  534),  Byle.s,  J., 
thus  states  the  principle  :  "  It  is  not  dis- 
puted that  the  general  rule  of  law  is,  that 
an  authority  to  an  agent  to  receive  money 
implies  that  he  is  to  receive  it  in  cash. 
If  the  agent  receives  the  money  in  cash 
the  probability  is  that  he  will  hand  it  over 
to  his  i)'.incipal ;  but  if  he  is  allowed  to 
receive  it  by  means  of  a  settlement  of  ac- 
counts between  himself  and  the  debtor,  ho 
might  not  be  able  to  pay  it  over.  At  all 
events,  it  would  very  much  diminish  tiie 
chance  of  the  principal  ever  receiving  it ; 
and  upon  that  j)rinciple  it  has  been  held 
that  the  agent  as  a  general  rule  cannot 
receive  payment  in  anything  else  but 
cash."  And  Willcs,  J.:  "As  a  general 
rule,  when  a  person  employs  an  agent  to 
receive  a  debt,  the  agent  must  receive  it 
in  money,  and  it  is  not  sufficient  that  tlie 
debt  should  bo  written  off  against  a  debt 
due  from  such  agent."  As  to  the  effect  of 
usage  in  such  a  case,  see  Scott  v.  Irving,  1 
B.  &  Ad.  605;  Sweeting  v.  IVarce,  9  C.  B. 
N.  s.  534;  Ex  parte  Cooke,  4  Ch.  Div.  123; 
Tomkins  v.  Jaffery,  3  App.  Cas.  213;  Ben- 
nell  V.  Hurlev,  2  Coll.  241;  Bodenham  v, 
Hoskyns,  2  De  G.  M.  k  G.  903. 


court  say  ;  "  Where  the  vendor  is  satisfied 
with  the  terms,  made  by  himself,  through 
the  broker,  to  the  purchaser,  and  no  solid 
objection  can  be  stated,  in  any  form,  to 
the  contract,  it  would  seem  to  be  clear 
that  the  connnission  was  due,  and  ought 
to  be  paid.  It  would  be  a  novel  principle 
if  the  vendor  might  capriciously  defeat  his 
own  contract  with  his  agent  by  refusing  to 
pay  him  when  he  had  done  all  that  he  was 
bound  to  do.  The  agent  might  well  un- 
dertake to  procure  the  purchaser  ;  but  this 
being  done,  his  labor  and  expense  could 
not  avail  him,  as  he  could  not  coerce  a 
willingness  to  pay  the  commission  which 
the  vendor  had  agreed.  Such  a  state  of 
things  could  only  arise  from  an  express 
understanding  that  the  vendor  was  to  pay 
nothing,  unless  he  should  choose  to  make 
the  sale.  The  Civil  Code  of  Louisiana 
declares  (Art.  2035)  that  the  condition  is 
considered  as  fulfilled  when  the  fulfilment 
of  it  has  been  prevented  by  the  party 
bound  to  perform  it."  See,  also,  llighter  v. 
Alamon,  4  Rob.  45;  Wells  v.  Smith,  3  La. 
601 ;  Levistones  v.  Laudreaux,  6  La.  An. 
26  ;  Lestrade  v.  Porrera,  Id.  398. 

»  9  Ch.  Div.  198. 

9  10  B.  &  C.  760,  769. 

'  See  Baring  f>.  Corrie,  2  B.  &  Aid.  137, 
144;   Todd  v.  Reid,  4  B.  &  Aid.  210; 


PART  VIII.] 


AGENCT. 


687 


A  company  employed  an  agent  for  the  sale  of  goods  in  a  shop 
taken  for  that  purpose.  The  agent  was  to  be  paid  a  commission 
on  the  sale,  and  he  was  to  accept  bills  for  the  company  for  sucii 
a  reasonable  amount  as  was  represented  by  the  goods  on  his 
premises  ;  and  if,  on  the  bills  arriving  at  maturity,  the  agent  had 
not  sufficient  funds  in  his  hands  to  meet  the  bills,  the  company 
were  to  make  good  the  difference.  The  company  failed,  and  was 
wound  up,  and  at  that  time  a  bill  accepted  by  the  agent  had  not 
arrived  at  maturity.  In  holding  that  the  agent  had  a  lien  on  the 
goods,  Malins,  V.  C,  says :  "  When  a  man  receives  goods  from  an 
ordinary  tradesman,  and  gives  a  cheque  in  payment  for  thtm, 
then,  as  soon  as  the  cheque  is  raid,  the  goods  are  paid  for;  but 
if,  by  arrangement,  he  gives  a  promissory  note  in  payment  for 
the  goods  instead  of  a  cheque,  still  the  transaction  is  in  the  same 
position,  and  as  soon  as  the  promissory  note  is  honored  the  goods 
are  paid  for.  Consequently,  when  the  bill  was  honored  the  goods 
were  paid  for.  Could  it  be  contended  that  the  company,  after 
this,  could  have  gone  to  the  house  and  taken  out  of  Welsford's 
possession  the  goods  he  had  paid  for  ?  He  would  have  said, '  I 
have  goods  in  my  possession,  and  you  cannot  take  them  away 
without  paying  me  the  amount  of  the  bill  which  I  have  accepted.' 
If  they  had  persisted,  he  might  have  come  to  this  court,  and 
would  certainly  have  been  entitled  to  an  injunction  to  restrain 
the  company  from  removing  the  goods.  The  result  is,  then,  that 
he  has  paid  for  the  goods,  and  no  doctrine  of  agent  and  principal 
could  prevent  him  from  being  entitled  to  retain  the  goods ;  and 
though  the  company  do  not  actually  say  you  shall  have  a  lien 
upon  the  goods,  it  was  implied  by  the  nature  of  the  transaction."* 

The  distinction  between  a  general  and  a  special  agency  is  in 
most  cases  a  plain  one.  The  purpose  of  the  latter  is  a  single 
transaction,  or  a  transaction  with  designated  persons.     It  does 


»  In  re  Pay's  Patent  Felted  Fabric  Co., 
1  Ch.  Div.  631.  Evidence  of  declarations 
of  an  agent  as  to  past  transactions  of  his 
principal  are,  as  mere  hoiirsay,  inadmis- 
sible. Goetz  V.  Bank  of  Kansas  City,  119 
n.  S.  551,  560  ;  Luby  v.  Hudson  River 
K.  K.,  17  N.  Y.  131,  133  ;  Adams  r.  Han- 
nibal  &  St.  Joseph  K.  R.,  74  Mo.  653. 

In  the  case  of  Cliquot's  Champap^no, 
3  Wall.  114,  which  was  a  libel  for  the  for- 
feiture of  goods  for  under-valuation,  the 
United  States  Supreme  Court  enunciated 
the  following  principles:  1.  Whatever  is 
done  by  an  agent  in  reference  to  the  busi- 
ness in  which  he  is  at  the  time  employed, 
and  within  the  scope  of  his  authority,  is 
said  or  done  by  the  principal,  and  may  be 
proved  as  well  ia  a  criminal  as  in  a  civil 


case  in  all  respects  as  if  the  principal 
were  the  actor  or  the  speaker.  American 
Fur  Co.  V.  United  States,  2  Peters,  364. 
2.  The  Act  of  1863  provided  that  if  any 
"owner,  consignee,  or  agent  shall  know- 
inghj"  make  a  false  entry  of  goods,  the 
goods  shall  be  forfeited.  In  this  case  if 
the  owner  has  the  knowledge,  and  the 
entry  is  made  by  an  innocent  consignee  or 
agent,  the  act  of  the  agent  or  cousignt^e  is 
to  be  regarded  as  the  act  of  the  guilty 
principal,  and  the  sa^ie  penal  conse- 
quences follow  as  if  the  entry  had  been 
made  by  the  owner  in  his  own  person. 
As  to  the  evidence  to  show  the  foreign 
value,  see  also  Cliquot's  Champagne,  3 
Wall.  114  ;  Fennerstein's  Champagne,  lb. 
146,  and  cases  there  cited. 


!*l 


i 


588 


COMMENTARIES  ON  SALES. 


[book  II. 


not  leave  to  the  agent  any  discretion  as  to  the  persons  with  whom 
he  may  contract  for  the  principal,  if  he  be  empowered  to  make 
more  than  one  contract.  Authority  to  buy  for  a  principal  a  single 
article  of  merchandise  by  one  contract,  or  to  buy  several  articles 
from  a  person  named,  is  a  special  agency ;  but  authority  to  make 
purchases  from  any  persons  with  whom  the  agent  may  choose  to 
deal,  or  to  make  an  indefinite  number  of  purchases,  is  a  general 
agency.  And  it  is  not  the  less  a  general  agency  because  it  docs 
not  extend  over  the  whole  business  of  the  principal.  A  man  may 
have  many  general  agents;  one  to  buy  cotton,  another  to  buy 
wheat,  and  another  to  buy  horses.  So  he  may  have  a  general 
agent  to  buy  cotton  in  one  neighborhood,  and  another  general 
agent  to  buy  cotton  in  another  neighborhood.  The  distinctiou 
between  the  two  kinds  of  agencies  is  that  the  one  is  created  by 
power  given  to  do  acts  of  a  class,  and  the  other  by  power  given 
to  do  indi'n'dual  acts  only.  Whether,  therefore,  an  agency  is 
general  or  special  is  wholly  independent  of  the  question  whether 
the  power  to  act  within  the  scope  of  the  authority  given  is  unre- 
stricted, or  whether  it  is  restrained  by  instructions  or  conditions 
imposed  by  the  principal  relative  to  the  mode  Of  its  exercise.^ 


1  Butler  V.  Maples,  9  Wall.  766.  The 
court  applied  these  principles  to  the  facts 
in  this  case.  The  facts  were,  that  one 
Shepherd,  living  in  Arkansas,  made  a 
purchase  of  144  bales  of  cotton  there  from 
the  plaintiff,  also  a  resident  of  Arkansas ; 
Shepherd  professing  in  what  he  did  to  act 
in  the  name  of  a  firm  known  as  Bridge  & 
Co. ,  of  Memphis,  composed  of  the  defend- 
ants, Butler  and  Hicox,  and  others.  The 
cotton  was  bought  as  it  lay,  Shepherd 
agreeing  to  pay  forty  cents  a  {lound  for  it 
as  soon  ns  it  was  weighed.  Having  been 
weighed,  he  removed  hfty-four  bales  of  it ; 
but  ninety  bales  were  burned  before  it 
could  be  placed  in  a  boat  to  be  carried  up 
the  river.  The  fifty-four  bales  removed 
were  got  on  board  and  sent  to  Bridge  & 
Co.,  and  the  plaintiff  went  to  Memphis  to 
see  them.  He  saw  Hicox,  who  wholly 
denied  She[)herd's  agency,  and  refused  to 
pay  anything  for  the  cotton  that  was  lost, 
but  agreed  to  pay  fifty  cents  a  pound  for 
the  hfty-four  oaks  which  had  arrived. 
The  ()laintitf  took  this  sum,  supposing,  as 
he  alleged,  that  the  assertions  about  Shep- 
herd's want  of  authority  were  true,  and 
only  on  that  account.  Seeing  Shepherd 
afterwards,  Shepherd  informed  him  that 
the  assertions  were  not  true  ;  and  Butler 
and  Hicox  still  wholly  denying  Shepherd's 
autiiority  to  make  the  contract  and  to 
bind  the  firm,  and  still  refusing  to  pay  for 
the  cotton  that  was  burnt,  nn  action  was 
brought  against  them  to  recover  the  price. 


The  evidence  of  Shepherd's  authority  for 
the  defendants  was  of  two  kinds,  the  first 
being  a  written  agreement  between  Bridge 
&  Co.  and  Shepherd,  in  which  the  pur- 
pose of  the  agreement  was  stated  to  be 
the  "  purchasing  R.  C.  Stone's  and  such 
other  cotton  as  said  Shepherd  may  be  able 
to  purchase  in  Desha  County,  Arkansas, 
and  vicinity,  under  the  conditions  and  re- 
strictions hereinbefore  set  forth."  The 
agreement  recited  that  Bridge  &  Co.  had 
furnished  |4000  to  Shepherd,  and  stipu- 
lated that  they  would  furnish  him  sui'h 
other  money  from  time  to  time  as  mi<;lit 
be  necessary  to  purchase  saiil  cotton.  I'lie 
agreement  further  expressed  that  Sliep- 
herd  should  buy  the  cotton  if  it  could  be 
bought  at  the  price  set  forth  therein,  and 
as  much  more  as  he  could  on  the  best  pos- 
sible terms,  not  paying  an  average  of  more 
than  thirty  cents  per  pound  for  niiddiing 
cotton,  and  lower  in  proportion  to  the 
grade.  Shepherd  was  to  jiay  as  little  as 
possible  on  the  cotton  until  it  was  deliv- 
ered on  a  boat,  or  within  protection  of  a 
gunboat,  and,  when  thus  delivered  and 
paid  for,  the  property  was  to  vest  in 
Bridge  &  Co.,  except  as  to  Shepherd's 
share,  amounting  to  one-eightii  of  the  iirof- 
its.  It  was  also  provided  that  contracts, 
shipments,  permits,  etc.,  necessary  to  pur- 
chase the  cotton  and  get  it  to  Memphis, 
should  be  in  Shepherd's  name,  Bridge  & 
Co.  having  authority  to  use  it  as  necessary. 
The  other  direct  evidence  of  the  agency  was 


PABT  VIII.] 


AGENCY. 


689 


Instructions  were  given  by  an  insurance  company  to  its  agents 
not  to  deliver  policies  to  applicants  for  insurance  until  the  whole 


supplied  by  the  testimony  of  one  Martin,  a 
witness  for  the  defendants.  He  was  sent 
hy  them  to  Arkansas  with  money  and  in- 
structions for  Shepherd,  the  instructions 
being  that  he  shouhl  purchase  cotton  for 
the  Arm,  but  was  not  to  agree  to  pay  more 
tlian  from  thirty  to  tliirty-five  cents  jier 
|)ouud  for  it.  He  miglit  make  small  ad- 
vances, but  he  was  instructed  not  to  pay 
the  balance  of  the  purchase-money,  or 
make  it  j)ayable,  until  the  firm  should  be 
able  to  send  a  boat  up  the  Arkansas  river 
for  the  cotton,  and  until  it  was  in  their 

C session,  weighed  and  placed  on  the 
t.  He  was  directed  to  take  no  risk 
for  the  firm  of  the  destruction  of  the  cot- 
ton by  incendiaries,  or  in  any  other  way, 
except  to  the  extent  of  the  money  ad- 
vanced. On  this  evidence  the  charge  to 
the  jury  was  to  the  following  effect :  A 
principal  is  bound  by  all  that  a  gencrtil 
agent  does  within  the  scope  of  tiie  busi- 
ness in  which  he  is  employed  as  such 
general  agent ;  and  even  if  such  general 
agent  should  violate  special  or  seci'et  in- 
structions given  him  by  his  principal,  and 
not  disclosed  to  the  party  with  whom  the 
agent  deals,  the  principal  would  still  bo 
bound  if  the  agent's  acts  were  within  the 
scope  of  the  business  in  which  he  was  em- 
ployed, and  of  his  general  agency.  But  a 
party  dealing  with  a  general  agent  who 
seeks  to  hold  the  principal  bound  for  the 
agent's  acts  or  contracts,  must  show,  in 
order  to  recover,  that  the  agent  held  him- 
self out  as  general  agent,  and  that  in  fact  he 
was  such  general  agent.  If  Shepherd  held 
himself  out  as  the  general  agent  of  Bridge 
&  Co.,  then  the  defendants  are  bound  by 
the  contract  which  he  made  with  the 
lilaintiffs  for  the  cotton,  notwithstanding 
Shepherd  may  have  agreed  to  pay  more 
for  the  cotton  than  his  princiiial  had  au- 
thorized ;  and  if,  as  general  agent  for 
liridge  &  Co.  buy  cotton  in  Desha 
County,  Shcpheru  was  not  authorized  by 
Briilge  &  Co.  to  buy  cotton  except  to  be 
delivered  on  board  the  bor.t,  and,  in  viola- 
tion of  their  instructions,  he  did  buy  the 
plaintitt's  cotton,  and  agreed  to  receive 
and  accept  delivery  of  it  elsewhere  tiian 
on  the  boat,  unless  the  plaintiff  knew  of 
tliese  instructions,  the  defendants  are 
iKJund  by  tiie  contract  which  Shepherd 
made,  becatiso  it  was  within  the  scope  of 
his  general  agency  just  as  much  as  was 
the  agreement  to  give  for  the  cotton  a 
larger  pnce  than  that  to  which  he  was 
limited  by  the  instructions  of  Bridge 
&  Co. 

On   the    principles   above   laid  down 
(finte,  p.  688),  the  Supreme  Court,  on 


error,  held  that  the  agreement  created  a 
general  agency  to  buy  cotton  in  Desha 
County ;  and  it  was  therefore  not  error 
for  the  court  to  instruct  the  jury,  as  was 
done,  that  the  agency  was  a  geneial  one, 
and  that  the  defendants  were  bound  by 
the  contract  if  Shepherd  held  himself  out 
as  authorized  to  buy  cotton,  and  if  the 
])laintifl'  had  no  knowledge  of  the  instruc- 
tions respecting  the  mode  in  which  the 
agent  was  required  to  act. 

It  will  be  noticed  here  that  the  Su- 
preme Court,  in  the  statement  of  prin- 
ciples by  which  they  were  governed  in 
deciding  the  case  (see  ante,  ji.  588),  and 
with  which  statement  of  principles  we 
fully  concur,  do  not  lay  down  any  such 
general  principle  as  was  done  by  the  court 
below,  that  "a  party  dealing  witii  a  gen- 
eral agent  who  seeks  to  hold  the  principal 
bound  for  the  agent's  acts  or  contracts 
must  show,  in  order  to  recover,  that  the 
agent  held  himself  out  as  general  agent, 
and  that  in  fact  he  was  such  general 
agent."  As  the  alleged  necessity  of  show- 
ing that  the  agent  "held  himself  out  as 
general  agent "  was  placing  an  additional 
burden  on  the  plaintiif,  it  was  not  a  mat- 
ter with  which  in  the  case  the  defendants 
could  find  fault.  But,  as  a  matter  of  law, 
it  is  not  correct.  A  party  may  bind  his 
principal  by  his  acts  as  agent  without 
"holding  himself  out  as  a  general  agent." 
If  an  agent  contracts  for  his  principal,  the 
fact  that  he  is  such  agent  will  bind  his 
principal  within  the  scope  of  his  author- 
ity, whether  that  authority  be  to  act  as  a 
general  or  .special  agent.  If  contracting 
simply  as  agent,  and  he  has  the  authority 
to  contract  as  a  general  agent,  his  con- 
tract, within  the  scope  of  his  authority, 
will  bind  his  principal  without  his  having 
held  himself  out  as  a  generui  agent.  Ami 
the  cases  are  fre(iuent,  as  is  shown  in  this 
Part,  where  an  agent  has  contracted  for  a 
principal,  and  has  not  disclosed  his  agency 
at  all,  and  on  discovery  of  the  undisclosed 
principal  the  latter  has  been  licld  liable 
on  the  contracts  of  one  who  was  liis  agent 
in  fact,  although  not  holding  himself  out 
as  such  agent  at  all.  And  .n  that  case, 
if  the  agent  were,  in  fact,  the  general 
agent  of  his  principal,  the  pi'inci|ial  would 
be  liable  on  the  contract  of  his  gcm-ral 
agent,  within  the  scoik*  of  his  agency, 
although  the  fact  of  such  agency,  irre- 
spective of  its  nature,  whether  general  or 
8j)ccial,  had  not  been  disclosed  at  all. 
The  court  below  evidently  erred  in  im- 
properly using  the  language  that,  to  bind 
the  principal,  it  must  be  shown  "  that  the 
agent  hela  himself  as  general  ogent,"  by 


1:       'ii 


m 


m 


\m 


M 


S  ;.t. ; ;  i 

I 


590 


COMMENTARIES  ON  SALES. 


[book  II. 


premiums  were  paid,  as  the  premiums  would  stand  charged  to  the 
account  of  the  agents  until  the  premiums  were  received  or  the 
policies  were  returned  to  the  head  office.  The  Supreme  Court  of 
the  United  States  held,  that  this  afforded  a  strong  presumption 
that  the  custom  was  known  to  the  company,  and  that,  where  the 
policy  is  delivered  without  requiring  payment,  the  presumption 
is,  especially  if  it  is  a  stock  company,  that  a  credit  was  intended, 
and  the  rule  is  well  settled  that,  where  a  credit  is  intended,  the 
policy  is  valid  though  the  premium  was  not  paid  at  the  time  the 
policy  was  delivered,  as  where  credit  is  given  by  the  general 
agent,  and  the  amount  is  charged  to  him  by  the  company,  the 
transaction  is  equivalent  to  payment.^ 

One  of  the  principal  doctrines  connected  with  the  law  of  prfli- 
cipal  and  agent  is  that  the  principal  is  liable  for  the  acts  of  his 
agent  within  the  scope  of  his  employment;  the  scope  of  the 
employment  depending  on  the  nature  of  the  employment.  This 
doctrine  is  well  illustrated  by  McGowan  &  Co.  v.  Dyer.^  In 
that  case  the  plaintiffs,  a  limited  company,  of  vvhicii  C.  was 
managing  director,  had  begun  printing  a  periodical  for  D.  & 
Co.,  a  firm  consisting  of  the  defendant's  son  and  two  others,  and 
the  periodical  was  sold  on  commission  by  S.  The  plaintiffs,  rep- 
resented by  C,  refused  to  go  on  printing  without  a  guarantee,  and 
the  defendant  consented  to  become  security  by  drawing  a  bill  on 
D.  &  Co.  and  indorsing  it  to  the  plaintiffs,  upon  the  understanding 
that  he  was  to  have  funds  to  meet  it  out  of  the  debt  accruing  from 
S.  to  D.  &  Co.  C.  was  told  of  this  arrangement.  Before  the 
defendant  drew  this  bill,  C.  had  lent  money  to  D.  &  Co.  on  his 
own  account,  and  held  their  acceptance  of  his  draft.  When  this 
latter  bill  became  due,  C.  obtained  an  order  on  S.  from  the  other 
two  partners  of  D.  &  Co.,  without  the  knowledge  or  consent  of 
the  defendant  or  his  son  ;  and,  under  this  order,  C.  obtained  the 
amount  due  from  S.  to  D.  &  Co.,  and  appropriated  it  to  the  pay- 
ment of  this  bill,  the  amount  being  more  than  sufficient  to  cover 
the  defendant's  bill.  The  plaintiffs  having  sued  the  defendant  on 
his  bill,  it  was  held  that  the  defendant  had  no  defence  as  against 
the  plaintiffs ;  for  that  the  plaintiffs  were  not  responsible  for  what 


making  a  very  palpable  misapplication  of 
that  language.  It  would  Iiave  been  quite 
correot  —  perfectly  good  law  —  to  have 
said  that  one  may  be  the  agent  (general 
or  special)  of  another  either  by  being  in 
fact  such  agent,  or  by  being  lield  out  by 
that  other  as  such  agent ;  but  to  ■>pply 
this  language,  as  was  done  in  this  case  in 
the  court  below,  and  say  that  one  must 
not  only  be  in  fact  a  general  agent,  but 
>'  must  hold  himself  out  as  such  general 


agent,"  in  order  to  bind  his  principal,  is 
entirely  incorrect. 

»  Miller  v.  Life  Ins.  Co.,  12  Wall. 
285 ;  Goit  v.  Insurance  Co.,  25  Barb.  189; 
Sneldon  v.  Atlantic  F.  &  M.  Ins.  Co., 
26  N.  Y.  460 ;  Wood  i;.  Insurance  Co., 
32  N.  Y.  619;  Bragdon  v.  Insurance  Co., 
42  Me.  262 ;  Trustees  v.  Insurance  Co.,  18 
Barb.  69  ;  s.  o.  19  N.  Y.  305. 

a  L.  R.  8  Q.  B.  141. 


le  pay- 
cover 
mt  on 

Igainst 
what 

|cipal,  is 

Wall. 

kb.  189; 
18.  Co., 

Ice  Co., 
nee  Co., 
(Co.,  18 


PART   VIII.] 


AGENCY. 


691 


C.  did  in  getting  his  private  debt  paid,  as,  though  he  was  their 
managing  director,  he  was  not  then  acting  for  them  or  in  pursu- 
ance of  any  autliority  from  them.* 

The  defendant,  wlio  resided  at  Liverpool,  gave  to  the  plaintiffs, 
who  carried  on  business  at  Pernambuco,  an  order  to  purchase  100 
bales  of  cotton  of  a  specified  quality  in  the  following  terms :  "  1 
beg  to  cor-^rm  my  letter  of  the  23d  of  February,  and  hope  you 
will  have  executed  fully  all  the  cotton  ordered,  and  consider  still 
in  force.  If  executed,  please  regard  this  as  a  new  order  for  100 
more."  The  plaintiffs,  acting  on  this  order,  purchased  in  the 
market  and  paid  for  ninety-four  bales  of  the  specified  cotton.  No 
direct  evidence  was  given  as  to  the  then  state  of  the  Pernambuco 
market ;  but  the  circumstances  of  the  case  rendered  it  reasonable 
to  infer  that  the  plaintiffs,  in  purchasing  ninety-four  bales,  had 
done  all  that  was  practicable.  The  defendant  declined  to  pay  for 
these  bales  on  the  ground  that  his  order  had  been  inadequately  per- 
formed. The  Court  of  Exchequer  held,  that  the  order  must  be  con- 
strued with  reference  to  the  state  of  market  for  which  it  had  been 
given,  and  that  it  had  been  substantially  complied  with.'"*  It  was 
a  question  as  between  principal  and  agent,  and  tlie  court  treated 
it  as  reasonable  if  the  plaintiffs  could  have  purchased  the  re- 
maining six  bales  they  would  have  done  so,  and  not  to  have 
purchased  the  ninety-four  bales  on  an  order  for  100  would  have 
been  a  breach  of  their  duty  as  such  agents.^ 

1  In  this  case,  the  act  of  C,  in  taking 
payment  of  his  own  debt,  iKing  in  no 
way  done  for  the  company,  or  in  pursu- 
ance of  any  authority,  express  or  implied, 
from  them,  couM  not  affect  the  rights 
of  the  company  to  recover  from  the  de- 
fendant, vhough  the  effect  of  the  arrange- 
ment might  be  to  make  C.  liable  personally 
to  the  defendant.  The  case  was  put  upon 
the  ground  that  if  goods  or  funds  pledged 
to  a  surety  were  improperly  taken  by  a 
person  acting  for  himself,  the  surety  would 
not  be  discharged  where  the  vrong-doer 
was  a  clerk  or  other  agent  of  the  principal 
creditor,  though  not  acting  in  any  way  for 
his  employer  when  he  did  the  wrongful 
act,  nor  in  pursuance  of  any  authority, 
express  or  implied,  from  him.  See,  as 
to  appropriation  of  funds  to  pay  a  debt, 
Tibbits  V.  George,  5  A.  &  E.  107, 115,  116; 
Row  V.  Dawson,  1  Ves.  Sen.  331,  332  ; 
Whitfield  V.  Fausset,  1  Ves  Sen.  391 ; 
Malcolm  v.  Scott,  3  Hare,  52  ;  Rodick  v. 
Gandell,  12  Beav.  329  ;  Morrell  v.  Woot- 
ten,  16  Beav.  203 ;  Burn  v.  Carvalho, 
4  My.  &  Cr.  702  ;  Steele  v.  Stuart,  L.  R. 
2  Eq.  84. 

*  Johnston  v.  Kershaw,  L.  R.  2  Ex.  82. 

'  The  court  here  followed  the  princi- 
ples thus  laid  down  in  Story  on  Agency, 


§  170 ;  "  The  principal  is  not  bound  by  the 
unauthorized  acts  of  his  agent,  but  is 
bound  where  the  authoiity  is  substantially 
pursued,  or  so  far  as  it  is  distinctly  pur- 
sued. But  the  question  may  often  arise 
whether,  in  fact,  the  agent  has  exceeded 
what  may  be  deemed  the  substance  of  his 
authority.  Thus,  if  a  man  should  author- 
ize an  agent  to  buy  one  hundred  bales  of 
cotton  for  him,  and  he  should  buy  but 
fifty  at  one  time  of  one  person,  and  fifty 
at  another  time  of  a  different  person,  or 
if  he  should  buy  but  fifty  only,  being  un- 
able to  purchase  more  at  any  price,  or  at 
the  price  limited,  the  question  might  arise 
whetiier  the  authority  was  well  executed. 
In  general  it  may  be  answered  that  it  was; 
because  in  such  a  case  it  would  ordinarily 
be  implied,  that  the  purchase  might  be 
made  at  different  times,  of  different  per- 
sons, or  that  it  might  be  made  of  a  ])art 
only,  if  the  whole  could  not  be  bought  at 
all,  or  not  within  the  limits  prescribed." 
See  Ireland  v.  Livingston,  L.  R.  2  Q.  B. 
99,  to  the  same  effect.  But  see,  as  to  where 
the  question  is  between  vendor  and  vendee, 
Cross  V.  Eglin,  2  B.  &  Ad.  106  ;  Tanvaco 
V.  Lucas,  1  E.  &  E.  581.  An  agent  em- 
ployed to  make  a  contract  at  a  particular 
place  has  an  implied    authority  to   act 


I    J 


j 

;,] 

j 

''' ! 

1' ■ 

i 

i    ' 
11   ■ 

i'   1 

f- 

,; 

i 

\ 

I :!  l: 


;'i 


^ 


i 


592 


COMMENTARIES  ON  SALES. 


[book  II. 


A  principal  is  bound  by  the  acts  of  his  agent  within  the  scope 
of  his  employment,  even  though  the  agent  should,  in  so  doing,  act 
in  contravention  of  private  instructions  given  by  the  principal  to 
the  agent.  The  case  of  Paine  v.  Hutchinson '  illustrates  this  prin- 
ciple. The  plaintiffs,  dealers  in  shares,  contracted  to  sell  to  the 
agents  of  the  defendant  shares  which  they  had  purchased  from 
and  which  remained  registered  in  the  name  of  C.  On  the  settling- 
day,  the  agents  of  the  defendant  gave  his  name,  as  principal,  for 
insertion  in  the  deeds  of  transfer.  Transfers  executed  by  C.  to 
the  defendant  were  delivered  to  defendant's  agents,  who  paid  for 
the  shares  out  of  money  given  to  them  by  tiie  defendant.  The 
defendant  refused  to  execute  the  deeds  and  to  procure  their  regis- 
tration, on  the  grounds  that  he  had  told  his  agents  that  he 
intended  to  resell  without  taking  a  transfer,  and  that  they  had 
given  his  name  without  authority.  The  defendant  had  named  no 
other  person  than  himself  as  purchaser,  and,  on  the  purchase 
being  effected,  the  agents  had  informed  the  defendant  that  they 
had  bought  the  shares  for  him,  and  that  they,  being  called  upon 
to  give  the  name  of  the  purchaser,  and  being  unable  to  arrange  to 
carry  over  the  purchase  as  desired  by  the  defendant,  were  bound 
by  the  practice  to  give,  and  did  give,  the  defendant's  name  as 
transferee.  Five  months  after  the  sale,  the  company  was  ordered 
to  be  wound  up,  and,  on  bill  for  specific  performance  and  in- 
demnity (filed  before  the  winding-up),  to  which  C.  was  not  a  party, 
it  was  held  that  the  plaintiffs  vere  entitled  to  a  decree  for  specific 
performance ;  and  that  defentant  should  execute  transfers,  and 
procure  his  name  to  be  registered. 

If  a  person  employs  another  as  an  agent  in  a  character  which 
involves  a  particular  authority,  he  cannot  by  a  secret  reservation 
devest  him  of  that  authority  ;  and  it  will  be  taken  that  the  agent 
has  authority  to  do  whatever  is  necessarily  incidental  to  carrying 
on  the  business  for  which  he  is  employed.  Thus,  where  A.  em- 
ployed B.  to  manage  his  business,  and  to  carry  it  on  in  the  name 
of  "  B.  &  Co.,"  the  drawing  and  accepting  bills  of  exchange  was 
incidental  to  the  carrying  on  of  such  a  business,  but  it  was  stipu- 
lated between  them  that  B.  should  not  draw  or  accept  bills. 
B.  having  accepted  a  bill  in  the  name  of  "  B.  &  Co.,"  A.  was  liable 
on  the  bill  in  the  hands  of  an  indorsee,  who  took  it  without  any 
knowledge  of  A.  and  B.,  or  the  business.^ 

according  to  the  usage  of  that  place,  and 
knowledge  of  the  usage  on  the  part  of  the 
principal  is  immaterial.  Sutton  i>.  Tatham, 
10  A.  &  E.  27 ;  Bayliffe  v.  Buttcrworth, 
1  Ex.  425  ;  Pollock  v.  Stables,  12  Q.  B. 
765.  See  further  as  to  usage,  Inse  v. 
Fompe,  8  C  B.  n.  8.  638 ;  Truemau  v. 


Loder,  11  A.  &  E.  589  ;  Kirchnery.  Verms, 
1 2  Moo.  P.  C.  361 ;  Sweeting  v.  Pearcc, 
9  C.  B.  N.  8.  534. 

>  L.  R.  3  Eq.  257. 

^  Edmunds  v.  Bushell  k  Jones,  L.  K. 
1  Q.  B.  97. 


PART    VIII.] 


AGENCY. 


598 


An  auctioneer  who  is  authorized  to  sell  goods  on  the  cunditions 
that  purchasers  shall  pay  a  deposit  at  once,  and  the  remainder  of 
the  purchase-money  to  the  auctioneer  on  or  before  delivery  of  the 
goods,  has  no  authority  to  receive  payment  by  a  bill  of  exchange, 
and  such  payment  will  not  discharge  the  purchaser.' 

Moneys  having  been  borrowed  by  the  agent  of  a  company  in  the 
name  and  for  the  use  of  his  principal,  and  the  principal,  having 
been  informed  of  such  borrowing,  and  of  the  amounts,  and,  a  de- 
mand having  been  made  to  him  for  the  payment  thereof,  having 
failed  within  a  reasonable  time  thereafter  to  disavow  the  acts  of 
his  agent  in  so  borrowing  the  money,  in  an  action  for  the  money 
the  jury  would  be  authorized  to  consider  the  principal  as  having 
assented  to  what  was  done  in  his  name.^ 

Where,  in  making  a  contract,  the  principal  is  disclosed,  and  the 
agent  is  known  to  be  acting  as  such,  the  latter  cannot  be  made 
personally  liable  unless  he  agreed  to  be  so.^ 

If  a  principal  knows  that  a  stranger  is  dealing  with  his  agent 
under  the  belief  that  all  statements  made  by  the  agent  were  war- 
ranted by  the  principal,  and,  so  knowing,  allowed  the  stranger  to 
expend  money  in  that  belief,  and  this  knowledge  is  brought  home 
to  the  principal,  a  court  of  equity  will  not  afterwards  allow  the 
principal  to  set  up  want  of  authority  in  the  agent.* 


»  Williams  v.  Evans,  L.  R.  1  Q.  B. 
352  ;  Sykes  v.  Giles,  5  M.  &  W.  645. 
See  as  to  agents  generally  receiving  pay- 
ment for  their  principals,  Barker  v.  Green- 
wood, 2  Y.  &  C.  Ex.  414.  In  Thorold  r. 
Smith,  14  Mod.  87,  where  a  payment  was 
made  in  the  city  by  a  goldsmith's  note  to 
a  servant  sent  by  hi.s  master  to  receive 
money.  Holt,  C.  J.,  said  he  thonght  it 
more  a  matter  of  evidence  than  of  law, 
and  any  jury  in  Guildhall  would  find  pay- 
ment by  a  bill  to  be  good  payment ;  it 
being  the  common  practice  in  the  city. 

*  Gold  Mining  Co.  v.  National  Bunk, 
96  U.  S.  640  ;  Vianna  v.  Barclay,  3  Cow. 
281;  Hazaid  v.  Spear,  4  Keyes,  469; 
Cairnes  v.   Blcecker,  12  Johns.  300. 

»  Whitney  v.  Wyman,  101  U.  S.  392. 
In  this  case  the  court  say :  "  Where 
the  question  of  agency  in  making  a  con- 
tract arises,  there  is  a  broad  line  of  dis- 
tinction between  instraments  under  seal 
and  stipulations  in  writing  not  under  seal, 
or  by  parol.  In  the  former  case  the  con- 
tract must  be  in  the  name  of  the  princi- 
pal, must  be  under  seal,  and  must  pur- 
port to  be  his  deed  and  not  the  deed  of 
the  agent  covenanting  for  him.  Stanton  v. 
Camp,  4  Barb.  274.  In  the  latter  cases 
the  question  is  always  one  of  intent,  and 
the  court,  being  untrammelled  by  any 
other  consideration,  is  bound  to  give  it 

VOL.  1.  88 


effect.  As  the  meaning  of  the  lawmaker 
is  the  law,  so  the  meaning  of  the  contract- 
ing parties  is  the  agreement.  Words  are 
merely  the  symbol  they  employ  to  mani- 
fest their  purpose  that  it  may  be  carried 
into  execution.  If  the  contract  be  un- 
sealed and  the  meaning  clear,  it  matters 
not  hino  it  is  phrased,  nor  how  it  is  signed, 
whether  by  the  agent  for  the  principal  or 
with  the  name  of  the  principal  by  the 
agent,  or  otherwise."  It  will  bw  observed 
that  this  exactly  accords  with  what  we 
have  expressed  in  our  comments  on  the 
English  cases,  which,  as  a  whole,  are  so 
badly  decided.  The  proper  principle,  as 
above  stated  by  the  United  States  Supreme 
Court,  has  been  lost  sight  of  by  the  Eng- 
lish courts  in  many  of  their  decisions, 
which  has  led  to  the  confusion  in  which 
those  cases  are  involved,  and  which,  by 
our  comments,  we  have  endeavored  to  clear 
away. 

*  Ramsden  v.  Dyson,  L.  R.  1  H.  L.  129. 
This  is  on  the  ground  of  acquiescence, 
which  has  been  acted  on  in  a  great  variety 
of  ca-oes,  and  held  conclusive  even  against 
the  requirements  of  statutes,  aa  the  Stat- 
ute of  Frauds.  See  Gregory  v.  Mighell, 
18  Ves.  328  ;  Earl  of  Oxford's  Case,  1  Ch. 
Rep.  1  ;  Mundy  v.  Jolliffe,  5  My  &  Cr. 
167  ;  Pain  v.  Coombs,  3  Sm.  &  O.  449  ; 
1  De  G.  &  J.  34  ;  Lillie  v.  Legh,  3  De  O.. 


I' 


1 


!;   .1^    SI 


\    H 


594 


COMMENTARIES  ON  SALES. 


[book   II. 


Where  an  insurance  broker  in  Liverpool  had  an  authority  ;,o 
underwrite  for  his  principal  for  not  exceeding  £100  on  any 
one  vessel,  and,  without  his  knowledge,  underwrote  for  £150,  it 
was  held,  that,  as  it  is  notorious  that  there  is  an  undisclosed  limit 
in  nearly  all  such  cases,  the  principal  was  not  liable  for  the  £150, 
and  as  the  contract  was  not  divisible  he  was  not  liable  for 
the  £100.1 

The  knowledge  of  the  attorney  of  a  collection  agency  of  the 
insolvency  of  the  debtor  was  held  not  to  affect  the  creditors  who 
had  sent  their  accounts  to  the  collection  agency,  and  who  had  nut 
received  the  money  collected  by  the  attorney  within  the  four 
months  provided  for  in  the  statute  ;  the  attorney  being  tlie  agent 
of  the  collection  agency,  and  not  of  the  creditors.^    But  where  an 


&  J.  204  ;  Shillibeer  v.  Jarvis,  8  De  O. 
M.  &  S.  79  ;  Powell  ii.  Lovegrove,  lb. 
857  ;  FiuruU  v.  Davenjiort,  3  GilF.  303 ; 
Allan  V.  Hower,  3  Hro.  C.C.  153,  189  ;  Kiist 
India  Co.  v.  VuKJont,  2  Atk.  83  ;  Pilling 
V.  Artnitaj^e,  12  Ves.  78  ;  Stiles  v.  Cowpcr, 
3  Atk.  692;  Daun  v.  Simnior,  7  Ves. 
231  ;  Unity  Bank  v.  King,  25  Beav.  72 ; 
Surcome  v.  Pinnigrr,  3  De  G.  M.  &  G. 
671  ;  Dowell  v.  Dew,  1  Y.  &  C.  Ch.  345  ; 
Shannon  v.  Bi.ulstrect,  1  Sch.  &  L.  52  ; 
Storrs  0.  Barker,  6  Johns.  Ch.  68,  169; 
Grcon  v.  Bi'Ulle,  8  Wheat.  1,  77  ;  Bright 
V.  Boyd,  1  Story,  492  ;  Wendell  v.  Van 
Uenssallaor,  1  Johns.  Ch.  354  ;  Brig  Sarah 
Ann,  2  Suinn.  206  ;  Gray  v.  Bartlett,  20 
Piek.  193  ;  Henderson  v,  Overton,  2  Yerg. 
391 ;  Tarrant  v.  Terry,  1  Bay,  239  ;  Skin- 
ner V.  Stouse,  4  Mo.  93. 

>  Barnes  v.  Ewing,  L.  R.  1  Ex.  320. 
Martin,  B.,  said  :  "  The  contract  declared 
on  was  made  by  an  agent  for  his  princi- 
pal, and  it  was  therefore  necessary  to  prove 
his  authority.  Now  its  terms  are  as  fol- 
lows; 'I  hereby  authorize  you,  in  my 
name  and  on  my  behalf,  to  underwrite 
policies  of  insurance  against  marine  risks 
not  exceeding  £100  by  any  one  vessel  ; ' 
and  that  document  is  ))roduccd  to  prove  the 
declamtion  which  alleges  that  a  policy 
was  subscribed  for  £150.  If  the  case  had 
stood  there  the  agent  would  certainly  have 
been  unauthorized.  But  then  it  is  said 
that  we  must  hold  him  to  have  had  au- 
thority because  of  the  exigencies  and 
course  of  business  at  Liverpool,  It  ap- 
pears, however,  that  it  was  well  known 
there  that  a  limit  is  almost  always,  if  not 
always,  put  to  the  amount  for  which  a 
broker  may  underwrite.  The  limit  in  a 
particular  case  is  known,  it  is  true,  only 
to  the  principal  and  the  broker  ;  but  still 
every  one  has  notice  that  there  is  a  limit 
of  some  sort  j  and  I  think,  therefore,  it 
would  be  impossible  to  hold  a  person  lia- 


ble to  an  unlimited  extent,  or  to  an  extent 
beyond  the  fixed  limit."  Story  on  Agency, 
4th  ed.  §  131,  where  it  is  said  that  if 
factors  who  (tossess  a  general  authority  to 
soil,  violate  their  private  instructions,  Iho 

ftrincipal  is  none  the  less  bound,  was  re- 
ied  on.  But  Brarawell,  B.,  answered  : 
"  With  regard  to  the  passage  cited  from 
Story,  the  case  referred  to  by  no  means  war- 
runts  the  general  j)ropo3ition  laid  down, 
and  1  doubt  exceedingly  whether  the  prin- 
cipal of  a  factor  would  be  liable  in  a  case 
whore  the  factor  sold  in  spite  of  a  particu- 
lar authority  to  sell  at  a  particular  price. 
There  it  is  said  that  business  could  not 
be  carried  on  if,  before  accepting  a  policy 
for  a  certain  amount,  the  assured  wcic 
always  to  insist  on  the  agent  underwriting 
it  showing  his  authority  to  sign  for  timt 
amount.  The  answer  to  that  objection  is 
that  as  a  rule,  reliance  may  be  placed  on 
the  honesty  of  the  broker  and  the  solv- 
ency of  the  principal.  It  is  unusual  in 
business  transactions  for  agents  to  assume 
an  authority  they  do  not  possess."  And 
Channel,  B.  :  "  If  we  look  only  at  the  ex- 
press authority,  it  not  only  does  not  con- 
fer, it  even  negatives,  any  authority  to 
sign  a  policy  for  so  much  as  £160.  But 
then,  it  is  said,  the  authority  was  given  to 
a  'general'  agent  and  cannot  be  limited 
by  secret  instructions  as  to  amount.  Now 
I  agree  that  to  be  a  general  agent  a  man 
heed  not  be  an  agent  for  all  purposes.  He 
may  be  a  general  agent  for  a  special  pur- 
pose, for  example,  an  agent  to  sign  all 
bills  of  exchange.  But  here  it  is  well 
understood  that  there  is  some  limit  be- 
yond which  a  broker  may  not  underwrite 
policies,  and  that  being  so,  the  broker  is 
not,  in  my  opinion,  a  general  agsnt  in  the 
sense  contended  for." 

«  Hoover  v.  Wise,  91  U.  8.  308; 
Reeves  i>.  The  State  Bank,  8  Ohio  St. 
465 ;  Blackay  v.  Ramsay,  9  01.  &  Fin, 


818  ;  The  I 

Albany  Cit 

Commercial 

Bank  of  Ne 

»  Merchants 

strett  V.  Kvt 

"•  Wallace,  ] 

«  A.  &  E.  9S 

'  Storrs  ( 

104;     Boyd 

<  h.    273  ;    I 

Smith,  64:  ] 

475. 

"  Ranney 

See  Adams  v. 

V.  Beck,  24  2 

36  III.  92  ;  CI 

220.     An  age 

in  the  title  of 

0''  his  infornif 

title  for  hims 

w  his  princi 

Peters,  169. 

.  Where  an  a 

cipal,  and  the 

eq'iity  to   prei 

statute  of  limit 

>»  the  statute 

the  agent,  it  w 


PART  vm.] 


AGENCY. 


595 


extent 
gmicy, 
that  if 
rity  to 
lis,  this 
(»i»s  re- 
wercd  ; 
d  from 
1118  war- 
down, 
lie  l>rin- 
I  a  cose 
paiticu- 
r  price, 
uld  not 
I  policy 
'd  wore 
•writing 
[for  tliut 
jction  is 
laced  on 
16  solv- 
isual  in 
assume 
'     And 
the  ex- 
not  con- 
lority  to 
(0.     B>it 
given  to 
limited 
it.    Now 
lt  a  ma" 
jes.    He 
iial  pnr- 
sign  all 
is  well 
limit  be- 
[derwrite 
irokcr  is 
it  in  the 

IS.   308; 

)hio  St- 

&  Fin. 


agent  has  power  to  employ  a  sub-agent,  the  acts  of  the  sub-agent, 
or  notice  given  to  him  in  the  transaction  of  the  business,  have  the 
same  effect  as  if  done  or  received  by  the  principal.* 

Wliere,  in  the  absence  of  fraud,  C.,  who  was  authorized  to  sell 
A.  and  B.'s  share  of  property  which  belonged  jointly  to  them  and 
C,  for  1200,000,  which  sale  was  effected  by  C. ;  he  at  the  same 
time  selling  his  own  moiety  for  1300,000,  the  court  lield,  reversing 
the  decision  of  the  court  below,  that  if  A.  and  H.  gave  their  con- 
sent in  advance  of  any  sale,  it  was  immaterial  to  them  what  price 
C.  got  for  his  share  of  the  property,  and  he  was  under  no  obliga- 
tion to  disclose  the  price  to  A.  and  H.,  and  to  ask  their  consent  to 
retain  it.  The  court  below  was  in  error  in  holding  that  after  this 
antecedent  assent,  a  subsccpient  assent  was  necessary.' 

The  plaintiff  sued  for  goods  sold  and  delivered.  The  defendant 
pleaded  that  the  goods  were  sold  to  him  by  one  A.,  whom  the  de- 
fendant believed  to  be  the  principal ;  and  that,  before  the  defend- 
ant knew  that  the  plaintiffs  were  the  principals,  the  said  A. 
became  indebted  to  the  defendant  in  a  sum  of  '1400,  which  he,  the 
defendant,  was  willing  to  set  off  against  the  plaintiff's  claim. 
The  jury  found  a  verdict  for  the  defendant  on  this  plea.  Held, 
that  the  defendant,  having  purchased  the  goods  without  notice  of 
A.'s  being  an  agent,  and  A.  having  sold  them  in  his  own  name, 
could  set  off  the  debt  due  to  him  from  A.  personally,  in  the  same 
way  as  if  A.  had  been  the  principal.'^ 


818  ;  The  Montgomery  Co.  Bank  v.  The 
Albany  City  Bank,  3  Scld.  459  ;  The 
Commercial  Bank  of  Pa.  r.  The  Union 
Bank  of  New  York,  1  Kern.  203  ;  Alloii 
V.  Merchants'  Bank,  22  Wend.  215  ;  Brad- 
strett  V.  Evesson,  72  Pa.  St.  124  ;  Lewis 
V.  Wallace,  10  Ala.  142 ;  Cobb  v.  Becke, 
6  A.  &  E.  930. 

«  Storrs  V.  City  of  Utica,  17  N.  Y. 
104  ;  Boyd  v.  Vandenbeig,  1  Barb, 
Ch.  273  ;  Bourke  v.  Story,  4  E.  D. 
Smith,  54;  Lincoln  v.  Battle,  6  Wend. 
475. 

2  Ranney  v.  Barlow,  112  U.  S.  207. 
See  .\dam8  v.  Rpberts,  2  How.  486  ;  Reese 
».  Beck,  24  Ala.  6.51  ;  Griibe  v.  Nichols, 
36  111.  92  ;  Chappell  v.  Allen,  38  Mo.  213, 
220.  An  agent  who  discovered  a  defect 
in  the  title  of  his  principal,  and  made  use 
of  his  information  to  acfpiire  a  valid  legal 
title  for  himself,  was  held  to  be  a  trustee 
for  his  principal.  Ringo  v.  Itinns,  10 
Peters,  169. 

Where  an  agent  is  dealt  with  as  prin- 
cipal, and  there  are  no  circumstances  of 
equity  to  prevent  the  operation  of  the 
statute  of  limitations  in  favor  of  the  latter, 
if  the  statute  is  a  bar  to  a  claim  against 
the  agent,  it  will  be  equally  so  as  to  the 


principal ;  the  mere  ignorance  of  the  other 
contracting  party,  and  even  the  conceal- 
ment of  the  fact  tliat  the  agent  was  merely 
the  agent  of  the  undisclo.sed  principal, 
no  fraud  on  the  part  of  the  latter  being 
charged,  is  insufhcient  to  raise  such  an 
equity.  Ware  v.  Gal  >  '*8ton  City  Company, 
111  iJ.  S.  170. 

'  Bowman  ville  Machine  Co.  v.  Demji- 
ster,  2  S.  C.  of  Can.  R.  21.  So,  in 
England,  in  Ex  parte  Dixon,  4  Ch.  Div. 
133,  it  has  been  held  that  a  person  pur- 
chasing goods  from  a  factor  who  sells 
them  in  his  own  name,  can  set  olf  a 
debt  dun  to  him  from  the  factor  personally 
in  the  same  way  as  i!"  !lie  factor  were  the 
principal,  unless  the  f  uruhaser  has  notice 
tliat  tiie  factor  is  not  the  principal ;  and 
this  right  is  not  affected  by  the  fact  that 
the  factor  in  selling  in  his  own  name  with- 
out disclosing  the  agency  is  acting  in  con- 
travention of  the  express  directions  of  his 
principal.  See  Rabonc  v.  Williams,  7 
T.  R.  360 ;  George  v.  Clagett,  7  T.  R. 
359.  But  in  Fish  v.  Kempton,  7  C  B. 
687,  where  A.  bought  goods  of  B.,  know- 
ing that  B.  was  selling  tliem  as  factor ;  it 
was  held  that  A.  could  not,  in  an  action 
by  the  principal  for  the  price,  set  off  a 


*ii 


, 


596 


COMMENTAttlES  ON  SALES. 


[book  II. 


In  Irwan  v.  Williar,*  the  case  was  brought  within  the  decision 
of  Robinson  v.  MoUct.'    The  court  in   Irwan  v.  Williar,  said. 


dobt  due  to  him  by  B.,  although  it 
waa  found  that  A.  made  the  purchase 
A<Mt<t  Ade :  but  semble,  tliat  payment  to 
B.,  though  made  prumatun-ly,  would,  if 
made  bond  fide,  bind  the  pvinuipai.  And 
in  Semenza  v.  HrinHluy,  18  t'.  B.  N.  m. 
467,  it  wuH  held  that  one  who  buys  goods 
of  a  pensou  whom  he  knew  to  bo  selling 
them  as  au  agent,  uould  not  set  oH'  in  an 
action  by  the  principal  tor  their  price  a 
debt  due  to  him  from  the  agent,  even 
though  he  did  not  know  at  tlie  time  of 
the  purchase,  and  had  not  the  meiins  of 
knowing,  who  was  the  real  owner.  There, 
to  an  action  for  goods  sold  and  delivered, 
the  defendants  pleaded,  that  the  goods 
were  sold  to  them  bv  one  Moll,  then  ueing 
the  agent  of  the  plaintiffs  and  intrusted 
by  them  with  the  possession  of  the  goods 
as  apparent  owner  thereof ;  that  Moll  sold 
them  in  his  own  name  and  as  his  own 
goods,  with  the  consent  of  the  plaintiffs  ; 
that  the  defendants,  at  the  time  of  the  sale 
and  delivery  of  the  goods,  did  not  know 
and  had  not  the  means  of  knowing  that 
the  plaintiffs  were  the  owners  of  the  goods, 
or  that  Moll  was  their  agent ;  and  that, 
at  the  time  of  the  said  sale  and  delivery 
of  the  goods,  and  before  the  defendants 
knew  that  the  plaintiffs  were  the  owners 
of  the  goods,  or  that  Moll  was  the  plain- 
tiffs' agent,  Moll  became  and  continued 
indebted  to  the  defendants  for  goods  sc'd, 
etc.,  to  an  equal  amount,  which  they  were 
willing  and  offered  to  set  off.  Held,  a 
bud  plea,  for  not  averring  that  the  defend- 
ants did  not  know  and  had  not  the  means 
of  knowing  that  Moll  at  the  time  he  sold 
the  goods  to  them  was  a  mere  agent.  This 
case  has  been  considered  and  explained  in 
Ex  parte  Dixon,  4  Ch.  \)\v.  133,  137,  and 
the  proper  distinction  pointed  out  so  far 
as  it  applies  to  factors  intrusted  with  the 
possession  as  well  as  the  disposition  of  the 

Sroperty.  Referring  to  the  law  as  laid 
own  by  Willes,  J.,  in  Semenza  v.  Brins- 
ley,  18  C.  B.  n.  s.  467,  Brett,  J.  A.,  says  : 
"  Mr.  Justice  Willes,  who  had  the  greatest 
experience  in  mercantile  law,  says  that 
the  ordinary  coui'se  of  business  is  for 
factors  (that  is  to  say,  persons  who  are  so 
entrusted  with  goods)  to  sell  in  their  own 
name.  Now,  the  rule  of  law  is,  that  the 
extent  of  an  agent's  authority  as  between 
himself  and  third  parties  is  to  be  measured 
by  the  extent  of  his  usual  employment. 
Tnat  being  so,  the  very  fact  of  intrusting 
yonr  goods  to  a  man  as  a  factor,  with 
right  to  sell  them,  is  primd  facie  authority 
from  you  to  him  to  sell  in  his  owa  name. 

1  110  U.  S.  499. 


Therefore,  it  not  having  been  shown  hern 
that  any  limitation  of  that  authority  wun 
made  known  to  the  person  who  was  dealing 
with  the  agent,  there  is  sufUcient  evidence, 
as  between  the  principal  and  such  tliinl 
party,  that  the  goods  were  to  be  sold  hy 
the  agent  in  his  own  name  as  principal, 
with  the  authority  of  the  |)erMon  wlm 
so  intrusted  him  with  the  goods.  That 
point,  therefore,  is  mailo  out.  It  is  true 
that  Mr.  Justice  Willes,  in  Semenza  v. 
Brinsley,  states  it  to  bo  necessary  that  the 
agent  should  have  the  authority  of  the 
principal  for  selling  in  his  own  name  ;  but 
lie  was  only  dealing  with  a  demurrer  to  a 
plea  ;  and  at  the  end  of  the  judgment  ho 
says  it  was  a  great  ])ity  that  the  |)artius 
did  not  go  on  to  try  the  facts  ;  and  if  the 
facts  had  Iwen  tried,  I  have  no  doubt 
that  as  soon  as  he  found  that  the  agent 
was  entrusted  with  the  goods  as  a  factor, 
he  would  have  held  that  that  proved  au- 
thority given  to  him  by  the  principal  to 
sell  in  ids  own  name,  so  far  as  anybody 
was  concerned  to  whom  some  limitation 
of  that  authority  was  not  disclosed.  It 
therefore  is  made  out  that  the  agent  sold 
in  his  own  name  with  the  authority  uf 
the  principal."  And  it  wn  conceded, 
as  held  in  Semenza  v.  Brius'  ,  18  C.  U. 
N.  8.  467,  that  it  was  then  nessary  to 
show  that  the  person  dealing  i..  lieved  that 
the  agent  was  the  principaf  in  the  trans- 
action. Ex  parte  Dixon,  4  Ch.  Div.  133, 
138.  In  Semenza  v.  Brinsley,  at  p.  477, 
Willes,  J.,  in  considering  the  plea  in  that 
case,  said  :  "It  is  necessary  to  consider 
whether  the  averments  in  this  plea  satisfy 
the  conditions  under  which  a  set-off  of  a 
debt  due  from  a  factor  against  u  claim  l'<r 
the  price  of  the  goods  by  his  principal  is 
allowed.  The  rule  of  law  is  well  stated  in 
the  marginal  note  to  the  case  of  George  v. 
Clagett,  7  T.  R.  359  ;  viz.,  thot,  if  a  factor 
sells  goods  as  his  own,  and  the  buyer 
knows  nothing  of  any  principal,  the  buyer 
may  set  off  any  demand  he  may  have  on 
the  factor  against  the  demand  for  the 
goods  made  by  the  principal.  One  niiiy 
observe,  as  has  often  been  suggested,  and 
as  was  very  clearly  jwinted  out  by  Ilol- 
royd,  J.,  in  Carr  v.  Hinchlitf,  3  B.  &  C. 
547,  that  the  difficulty  was,  not  in  set- 
ting up  as  a  defence  against  the  principal 
that  which  would  bo  a  defence  ngninst 
the  factor,  by  way  of  extinguishment  of 
the  claim  of  the  former,  but  in  applying 
the  statute  of  set-offs,  and  saying  that  the 
terms  of  that  statute  were  satisfied,  so  as 
to  say  that  the  debt  of  the  factor  should 

s  L.  R.  7  H.  L.  802. 


PART   VIII.] 


AGENCY. 


697 


"  The  ground  of  the  action  is  that  the  plaintiffs,  at  the  request  of 
the  defendants,  had  made  certain  contracts  for  tlic  sale  and  fut- 
ure delivery  of  grain  ;  that  these  contracts  were  made  in  the  name 
of  the  brokers,  the  plaintiffs,  on  wliich,  therefore,  they  were  per- 
sonally liable,  but  in  which  the  defendants  were  the  principals ; 
that  the  latter  were  bound  to  perform  them,  or  to  place  in  the 
hands  of  their  brol(crs  means  of  performance  within  tiie  proper 
period,  or  to  indemnify  them  against  the  consequences  of  non- 
performance ;  that  the  defendants  in  all  these  particulars  became 
in  default,  and  tlie  plaintiffs  were  required  to  perform  out  of  their 
own  means ;  which  they  did  by  purchasing  grain  for  delivery  at 
the  market  price,  or  paying  the  difference  between  that  and  the 
contract  price.  The  custom  proved  was  offered  to  show  this  per- 
formance and  consequent  loss  ;  and  in  doing  so,  it  disclosed  that 
the  brokers  did  not  perform  the  original  contracts  of  sale  actually 
made,  but  delivered  equal  quantities  of  grain  or  its  market  value, 
in  fulfilment  of  contracts  of  purchase  made  by  them  for  others, 
and  which,  by  the  process  of  mutual  exchange,  authorized  by  this 
custom,  had  come  into  their  hands  for  that  purpose.  This  ex- 
change and  substitution,  and  payment  of  differences  to  effect  it, 
working  as  it  does  a  complete  change  in  the  nature  of  tlie  seller's 
rights  and  obligations,  cannot  be  made  without  his  assent,  and 
that  assent  can  be  implied  only  from  knowledge  of  the  custom 
which  it  is  claimed  authorizes  it."  The  United  States  Supreme 
Court  hel"',  that  the  court  below  erred  in  permitting  proof  of 
such  custom,  without  evidence  that  the  defendants  had  knowl- 
edge of  it,  and  in  not  instructing  the  jury  to  disregard  it,  if  they 
were  satisfied  f -om  the  evidence  that  sucli  knowledge  had  not  been 
satisfactorily  shown.^ 

Under  the  Act  of  July  13, 1866,  a  tax  was  imposed  on  all  sales 
of  any  goods,  wares,  or  merchandise,  made  by  commercial  brokers. 

for  the  purpose  of  the  action  be  considered 
as  the  debt  of  the  principal.  That  diffi- 
culty, however,  was  got  over,  and  the 
factor  and  the  j)rinci[)al  were  identified  by 


that  decision,  for  the  iiurpose  of  the  stat- 
ute ;  and  it  was  held  that  the  existence  of 
the  set-off,  without  any  knowledge  of  the 
agency,  entitled  the  debtor  to  set  up  as 
against  the  principal  the  defence  of  set-off 
as  a  quasi  extinguishment,  nolivithstand- 
ing  the  words  of  the  statute  of  set-off." 
See,  also,  Purchell  v.  Salter,  1  Q.  B.  197  ; 
Sims  V.  Bond,  5  B.  &  Ad.  389  ;  Baring  v. 
Corrie,  2  B.  &  Aid.  137  ;  Maanss  u.  Hen- 
derson, 1  East,  335  ;  Moore  v.  Clementson, 
2  Camp.  22 ;  Warner  v.  McKay,  1  M.  & 
W.  591  ;  Smart  v.  Sandars,  3  C.  B.  399 ; 
Norwood  V.  Dresser,  14  C.  B.  M.  s.  574 ; 
17  C.  B.  N.  s.  466 


1  See  Brown  r.  Byrne,  3  El.  &  B. 
703  ;  Grissell  v.  h  istowe,  L.  R.  4  C.  P. 
36  ;  Humfrey  v.  i>ale,  7  El.  &  B.  266 ; 
E.  B.  &  E.  1004 ;  Bostock  v.  Jardine,  3 
H.&C.  700. 

Parties  offering  to  sell  property  for 
$40,000  cash  are  not  bound  to  their  agent 
for  selling,  to  carry  out  such  sale,  where 
an  offer  of  a  larger  sum  is  made  to  the 
agent  with  the  condition  that  $10,000 
shall  be  paid  in  cash,  which  is  to  be  for- 
felted  by  the  purchasers  if  they  do  not 
complete  the  purchase.  $40,000  paid  by 
the  purchasers  is  the  only  valid  acceptance 
of  tne  offer  which  will  bind  the  parties 
offering  the  property  for  sale.  Still  v. 
Huidekopers,  17  WaU.  384. 


im 


1 


i:!V 


!'■  ..;• 


698 


COMMENTABIES  ON  SALES. 


[book  II. 


Under  this  act  a  tax  was  assessed  against  the  respondents,  cotton 
brokers  of  New  Orleans,  which  they  were  compelled  to  pay  ;  their 
appeal  to  the  commissioner  of  internal  revenue  against  the  tax 
having  been  dismissed.  In  an  action  by  them  against  the  col- 
lectoi,  it  was  shown  that  they  did  not  sell  any  cotton  or  other 
goods,  but  limited  themselves  to  making  purchases  for  those  who 
required  their  services ;  that  the  money  was  paid  by  their  princi- 
pals directly  to  the  parties  who  made  the  sales,  and  that  their 
compensation  for  making  the  purchases  was  one-half  of  one  per 
cent.,  paid  by  the  buyer,  and  one-fourth  of  one  per  cent,  by  the 
seller,  under  a  custom  of  the  trade  in  New  Orleans,  established 
when  cotton  brokers  were  sellers  as  well  as  buyers,  which  custom 
was  continued  after  the  brokers  buying  had  ceased  to  be  sellers. 
It  was  also  shown  that  a  tax  on  all  the  sales  for  which  the  re- 
spondents had  been  assessed,  had  been  paid  by  other  parties  who 
Lad  made  the  sales.  The  Supreme  Court,  in  an  action  against  the 
collector,  affirming  the  judgment  of  the  Circuit  Court  for  Louisi- 
ana, held  that  the  tax  had  been  wrongly  assessed  and  collected.^ 

4.  Officers  op  Companies  as  Agents. 

Where  the  agent,  within  the  scope  of  his  employment,  know- 
ingly makes  a  false  representation,  both  he  and  his  principal  are 
principals  in  the  commission  of  the  fraud,  and  are  both  liable. 
Swift  V.  Winterbotham  and  Goddard  ^  is  an  illustrative  case.  The 
plainti£f  sued  W.  and  G.  jointly  for  a  false  representation  with 
respect  to  the  solvency  of  R.  The  defendant  W.  was  sued  as  a 
public  officer  of  a  banking  company,  formed  under  7  Geo.  4,  c.  46, 
and  the  defendant  G.  was  the  manager  at  one  of  their  branches. 
The  plainti£f  was  a  customer  of  the  S.  bank,  and  requested  the 
manager  of  that  bank  to  inquire  for  him  as  to  R.'s  credit.  The 
manager  wrote  a  letter  addressed  to  "  the  manager "  of  the  de- 
fendiants'  banking  company,  requesting  information  whether  R. 
was  responsible  to  the  extent  of  £50,000.  The  defendant  G. 
wrote  a  letter,  which  he  signed  as  manager,  giving  a  favorable 
reply  as  to  R.'s  responsibility.  The  plaintiff,  in  consequence  of 
this  letter,  supplied  R.  with  goods,  for  which  he  never  was  paid, 
in  consequence  of  R.'s  insolvency.  The  statement  made  by  G. 
was  false  to  his  knowledge.  The  defendants'  banking  company 
had  no  knowledge,  otherwise  than  through  G.,  that  such  a  letter 
had  been  written,  and  gave  him  no  express  authority  to  write  the 
letter,  but  the  writing  of  such  a  letter  was  an  act  done  within  the 
scope  of  the  general  authority  conferred  on  G.  as  manager.    It 

»  The  Collector  v.  Dodswell,  16  Wall.         »  L.  R.  8  Q.  B.  244. 
166. 


Jl 


PABT  VIII.] 


AGENCY. 


599 


was,  among  other  things,  held,  that  inasmuch  as  it  is  usual  for 
the  customer?  of  a  bank  to  make  inquiries  like  that  made  by  the 
plaintiff,  it  must  be  taken  to  have  been  within  the  contemplation 
of  the  defendants  that  the  inquiry  as  to  R.'s  solvency  might  have 
been  made  on  be!  alf  of  a  customer  of  the  S.  bank,  and  that  the 
representation  might  be  communicated  to  him ;  that  the  banking 
company  and  G.  were  liable  to  the  plaintiff,  he  being  the  customer 
who  had  made  the  inquiry ;  and  that  the  banking  company  was 

ible  for  the  false  representation  of  its  manage,  made  in  the 
course  of  conducting  the  business  of  the  bank.^ 

A  bill  of  exchange  purporting  to  be  made  at  the  office  of  a  com- 
pany, and  directing  the  drawee  to  charge  the  amount  thereof  to 
the  account  of  the  company,  of  which  the  signers  describe  them- 
selves as  president  and  secretary,  bearing  on  its  face  all  these 
signs  of  being  the  contract  of  the  company,  the  principal,  cannot 
be  held  to  bind  the  agents  personally.^ 


U 


>j\ 


1  In  thia  case  Lord  Tenterden's  Act 
(9  Geo.  4,  c.  14,  §6),  "That  no  action 
ahall  be  brought  whereby  to  charge  any 
|)er3on  upon  or  by  reason  of  any  repre- 
sentation or  assurance  made  or  given 
concerning  or  relating  to  the  character, 
conduct,  credit,  ability,  trade,  or  dealing 
of  any  orher  person  to  the  intent  or  pur- 
pose that  such  other  person  may  obtain 
credit,  money,  or  goods  upon,  unless  such 
representation  or  assurance  be  made  in 
writing,  signed  by  the  jmrty  to  be  charged 
therewith,"  was  relied  on.  The  court  held 
that,  in  an  ordinary  case  of  principal  and 
agent,  a  written  representation  within 
this  section,  signed  by  the  ageut  alone, 
would  not  be  binding  on  the  priuripal, 
although  such  signature  was  du^y  author- 
ized by  him.  Hyde  v.  Johnson,  2  Bine. 
N.  C.  776  ;  Clark  v.  Akxander,  8  Scotts 
N.  R.  147  ;  Torrs  v.  Cuming,  7  M.  &  G. 
88  ;  Scott  V.  Eastern  Counties  Ry.  Co., 
12  M.  &  W.  33;  Kingsford  v  flreat 
Western  Ry.  Co.,  16  C.  B.  n.  s.  7(51  ; 
Jessel  V.  Bath,  L.  R.  2  Ex.  267  ;  Richard- 
son V.  Younge,  L.  R.  6  Ch.  478.  But  the 
court  held  tliat  signing  as  manager  for  the 
banking  company  was,  in  fact,  the  sign- 
ing, not  merely  of  an  agent,  but  of  the 
banking  company  itself,  and,  therefovp, 
the  signature  was  that  of  the  party  to  bo 
charged  within  the  section.  And  although 
the  statement  was  not  made  directly  to 
the  plaintiff,  it  must  be  considered  that 
it  was  within  the  contemplation  of  the 
defendants  when  the  representation  was 
made,  that  it  would  or  might  be  com- 
municated to  the  customer  of  the  bank 
on  whoso  behalf  the  information  is  sought. 
Where  that  is  done,  and  the  person  to 
whom  the  false   representation    is   thus 


communicated  f.^ts  on  it  and  suffers 
damage  thereby,  he  is  entitled  to  main- 
tain an  action  for  such  damage  in  the 
same  manner  as  if  the  representation  had 
been  made  directly  to  himself ;  Langridge 
V.  Levy,  2  M.  &  W.  519  ;  Bedford  v.  Bag- 
shaw,  29  L.  J.  Ex.  65 ;  the  banking 
company  being  liable  for  the  fraudulent 
representation  of  its  manager  made  in  the 
course  of  conducting  the  business  of  the 
company.  Berwick  v.  The  English  Joint 
Stock  Bank,  L.  R.  2  Ex.  259.  Where 
the  action  is  in  tort,  all  persons  liable  for 
the  commission  of  the  tort,  whether  prin- 
cipals, agents,  or  servants,  are  liable  to  be 
sued  jointly,  hi  CuUen  v.  Thompson's 
Trustees,  4  Macq.  424,  Lord  Westbury 
says  :  "  All  persons  directly  concerned 
in  the  commission  of  a  fraud  are  to  be 
treated  as  principals ;  no  party  can  be 
permitted  to  excuse  himself  on  the  ground 
that  he  acted  as  the  agent  or  as  the 
servant  of  another."  But  where  the 
fraud  is  that  of  the  agent  alone,  and 
not  that  which  the  company  has  im- 
pliedly authorized  him  to  be  guilty  of, 
there  the  company  is  not  liable  for  the 
deceit.  Western  Bank  of  Scotland  v. 
Addie,  L.  R.  1  Sc.  &  D.  145  ;  National 
Exchange  Co.  v.  Drew,  2  Macq.  103 ; 
Ranger  v.  Great  Western  Ry.  Co.,  5  H. 
L.  C.  72  ;  D'Arcy  v.  Tamar,  etc.  Ry.  Co., 
L.  R.  2  Ex.  158 ;  Barry  v.  Croskey,  2  J. 
&  H.  1 ;  Pilmore  v.  Hood,  5  Bing.  N.  C. 
97 ;  Pasley  v.  Freeman,  3  T.  R.  51 ; 
Blackmore  v.  Bristol  &  Exeter  Ry.  Co., 
8  E.  &  B.  1035. 

3  Hitchcock  V.  Buchanan,  106  U.  S. 
416  ;  Sayre  v.  Nichols,  7  Cal.  536  ;  Car- 
penter V.  Famsworth,  106  Mass.  661  ; 
Tripp  V.  Swanzey  Paper  Co.,  13   Pick. 


■>M 


!  ' 


;,r- ! 


m 


11 
III 


I'i  I 


600 


COMMENTABIES  ON  SALES. 


[book  II. 


Where  checks  by  a  mining  company  against  their  funds  in  a 
bank  were,  for  a  long  period,  signed  by  tlie  president  and  secre- 
tary of  tlie  company,  without  objection  by  the  company,  the  bank 
had  a  right  to  presume  that  tliey  were  properly  signed,  and  to  re- 
cover against  the  company  for  an  overdraft  so  signed  ;  the  bank 
having  the  right  to  presume  that  these  officers  did  not  exceed 
their  authority,  and  that  the  moneys  thus  obtained  were  paid  over 
to  or  received  by  the  company.  But,  as  this  is  a  mere  presump- 
tion arising  from  the  conduct  of  the  parties,  as  well  as  from  the 
general  mode  in  which  corporations  organized  for  profit  conduct 
their  business,  if  not,  under  the  special  circumstances  of  the  case, 
conclusive,  it  may  be  overthrown  by  proof  of  want  of  authority, 
express  or  implied,  and  that  the  company  did  not  receive  the 
money  paid  on  such  overdraft.* 

Corporations  are  liable  for  the  acts  of  their  servants  while  en- 
gaged in  the  business  of  their  employment,  in  the  same  manner 
and  to  the  same  extent  that  individuals  are  liable  under  like 
circumstances.^  v 


291  ;  Fuller  v.  Hooper,  3  Gray,  334  ;  Bank 
of  British  North  America  v.  Hooper, 
5  Gray,  567.  In  Slawson  v.  Loring,  5 
Allen,  340,  343,  Bigelow,  C.  J.,  said : 
"No  one  can  doubt  that  on  billa  thus 
drawn  the  agent  fully  discloses  his  prin- 
cipal, and  that  the  drawer  could  not  be 
personally  chargeable  thereon." 

1  Mining  Company  v.  Anglo-Californian 
Bank,  104  U.  S.  192.  The  officers,  de  facto, 
of  a  company  holding  under  color  of  aa 
election,  having  charge  of  the  affairs  oi  the 
company,  are  capable  of  binding  it  in  all 
matters  legitimately  devolving  upon  di- 
rectors of  the  company.  Anglo-Californian 
Bank  v.  Mahoney  Mining  Co.,  5  Sawyer, 
265,  258.  Bankers  are  bound  by  notice 
communicated  to  their  cashier  of  stock- 
certificates  received  by  them  being  trust 
property.  Duncan  v.  Laudon,  15  Wall. 
165,  177. 

2  Merchants'  Bank  v.  State  Bank,  10 
Wall.  604,  645  ;  Ranger  v.  The  Great 
Western  Ry.  Co.,  5  H.  of  L.  Cas.  86  ; 
Thayer  v.  Boston,  19  Pick.  611  ;  Frank- 
fort Bank  v.  Johnson,  24  Me.  490. 

Where  a  party  deals  with  a  corpora- 
tion in  good  faith,  the  transaction  not 
being  ultra  rires,  and  he  is  unaware  of 
any  defect  of  authority  or  other  irregu- 
larity  on  the  part  of  those  acting  for  the 
cornoration,  and  there  is  nothing  to 
excite  suspicion  of  such  defect  or  irregu- 
larity, the  corporation  is  bound  by  the 
contract,  although  such  defect  or  irregu- 
larity in  fact  exists.  And  if  the  contract 
can  be  valid  under  any  circumstances, 
an  innocent  party  in  such  a  case  has  a 


right  to  presume  their  existence,  and  the 
corporr.tion  is  estopped  to  deny  them. 
Supervisors  v.  Schenck,  5  Wall.  784 ; 
Knox  Co.  V.  Aspinwall,  21  How.  539  ; 
Bissell  V.  Jeffersunville,  24  How.  288  ; 
Moran  v.  Commissioners,  2  Black,  722  ; 
Gelpcke  v.  rubuque,  1  WalL  203  ; 
Mercer  Co.  v.  Hacket,  lb.  93 ;  Mayor 
V.  Lord,  9  Wall.  414;  Royal  British 
Bank  o.  Turquand,  6  E.  &  B.  327  ;  The 
Farmers'  Loan  &  Trust  Co.  v.  Curtis,  3 
Seld.  466  ;  Stoney  v.  American  Life  Ins. 
Co.,  11  Paige,  635  ;  Society  for  Savings  v. 
New  London,  29  Conn.  174 ;  Common- 
wealth V.  The  City  of  Pittsburg.  34  Pa. 
St.  497 ;  Commonwealth  v.  Allegheny 
Co.,  37  Pi'.  St.  287.  And  corporations  are 
liable  for  very  wrong  of  which  they  are 
guilty,  an  i  in  such  cases  the  doctrine  of 
ultra  vires  has  no  application.  Phila- 
doiphia  &  Baltimore  R.  R.  Co.  v.  Quigley, 
21  How.  209  ;  Gi-eon  v.  London  Omnibus 
Co.,  7  C.  B.  N.  8.  290  ;  Life  &  Fire  Ins. 
Co.  V.  Mec;  -nic  Fire  Ins.  Co.,  7  Wend.  31. 
A  cashier  of  a  br.nk  has  the  power  virlute 
officii  to  certify  checks.  It  is  his  duty  to 
receive  all  the  funds  which  come  into  the 
bank,  and  to  enter  them  upon  its  books. 
The  authority  to  receive  implies  and  car- 
ries with  it  authority  to  give  certificates 
of  deposit  and  other  proper  vouchers. 
Where  the  money  is  in  the  bank  he  hivs 
the  same  authority  to  certify  a  check  to 
be  good ;  charge  the  amount  to  the 
drawer  ;  appropriate  it  to  the  fwiyment  of 
the  check,  and  make  the  proper  entry  on 
the  books  of  the  bank.  The  power  is 
inherent  in  the  office.     Wild  v.  'The  Bank 


PART  VIII..] 


AGENCY. 


601 


A  contract  entered  into  between  "  W.,  superintendent  of  the  K. 
Mining  Co.,  parties  of  the  first  part,"  with  P.,  and  signed,  "  W., 
Sup.  K.  Mining  Co.,"  was  held,  under  the  civil  code  of  Dakota 
of  1877,1  —  which  provides  that  "  any  instrument  within  the  scope 
of  his  authority,  by  which  an  agent  intends  to  bind  his  principal, 
does  bind  him,  if  such  intent  is  plainly  inferable  from  the  in- 
strument itself,"  —  to  be  a  contract  made  by  W.  for  the  mining 
company,  it  clearly  appearing  upon  its  face  to  have  been  intended 
to  bind,  and  that,  therefore,  it  did  bind  the  company,  and  the 
defendant  as  one  of  its  members.^ 

The  cashier  of  a  bank  is  not  presumed  to  have  power,  by  reason 
of  his  official  position,  to  bind  his  bank  as  an  accommodation  in- 
dorser  of  his  own  promissory  note.  Such  a  transaction  would 
not  be  within  the  scope  of  his  general  powers ;  and  one  who  ac- 
cepts an  indorsement  of  that  character,  if  a  contest  arises,  must 
prove  actual  authority  before  he  car  recover.  There  are  no  pre- 
sumptions in  favor  of  such  a  delegation  of  power.  The  very  form 
of  the  paper  itself  carries  notice  to  a  purchaser  of  a  possible  want 
of  power  to  make  the  indorsement,  and  is  sufficient  to  put  him  on 
his  guard.    If  he  fails  to  avail  himself  of  the  notice,  and  obtain 


of  Passamatiuoildy,  3  Mason,  506 ;  Burn- 
ham  V.  Webster,  19  Me.  234  ;  Elliot  v. 
Abbot,  12  N.  H.  556  ;  Bank  of  Vergennes 
V.  Warren,  7  Hill,  91 ;  Lloyd  v.  The  West 
Branch  Bank,  15  Pa.  St.,  i72  ;  Badger  v. 
The  Bank  of  Cumberland,  26  Me.  428  ; 
Bank  ot  Kentucky  v.  The  Schuylkill  Bank, 
1  Pars.  Sel.  Cas.  182 ;  Fleckner  v.  Bank 
of  the  United  State.s,  8  Wheat.  360.  The 
directors  may  limit  his  authoiity  as  they 
deem  proper,  but  this  would  not  affect 
those  to  whom  the  limitation  was  un- 
known. Commercial  Bank  of  Lake  Erie 
V.  Norton,  1  Hill,  501  ;  Bank  of  Vergennes 
i>.  Warren,  7  Hill,  94  ;  Beers  v.  The 
Phoenix  Glass  Co.,  14  Barb.  358  ;  Farmers' 
and  Mechanics'  Bank  v  Butchers'  and 
Drovers'  Bank,  14  N.  Y.  624  ;  North 
River  Bank  v.  Aymar,  3  Hill,  262,  268  ; 
Barnes  V.  Ontario  Bank,  19  N.  Y.  156, 166. 
Those  dealing  with  a  bank  in  good  faith 
have  a  right  to  presume  integrity  on  the 
part  of  its  officers,  when  acting  within  the 
apparent  sphere  of  their  duties,  and  the 
bank  is  bound  accordingly.  Mead  v. 
The  Merchants'  Bank  of  Allmny,  25 
N.  Y.  146  ;  Barnes  v.  Tlie  Ontario  Bank, 
19  N.  Y.  156  ;  Farmers'  &  Mechanics' 
Bank  v.  The  Butchers'  &  Drovers'  Bank, 
14  N.  Y.  624 ;  16  N.  Y.  133.  Acts 
of  the  cashier  of  a  bank,  done  in  the 
ordinary  course  of  the  business  actually 
confided  to  such  an  officer,  are  primd 
fade  evidence  that  they  fell  within 
the   acoiie   of   his   duty.       Fleckner   v. 


Bank  of  the  United  States,  8  Wheat. 
338. 

»  §  1373. 

2  Post  V.  Pearson,  108  U.  S.  418. 
See  Whitney  v.  Wyman,  101  U.  S.  392  ; 
Hitchcock  V.  Buchanan,  105  U.  S.  416 ; 
Gooilenough  v.  Thayer,  132  Mass.  152  ; 
Tucker  Manuf.  Co.  v.  Fairbanks,  98  Mass. 
101  ;  Fuller  v.  Hooper,  3  Gray,  334  ; 
Lyon  V.  Williams,  5  Gray,  557  ;  Slawson 
V.  Loring,  5  Allen,  340 ;  Carpenter  v, 
Famsworth,  106  Mass.  561  ;  Cutler  v. 
Ashland,  121  Mass.  588.  But  there  are 
cases  in  this  country  as  in  England,  where 
the  parties  describing  themselves  as  agents 
have  been  held  liable  as  principals  to  the 
contract,  the  term  "agent"  being  held,  in 
such  cases,  to  be  merely  dcscriplio  personce. 
Simonds  v.  Heard,  23  Pick.  120  ;  Tippets 
V,  Walker,  4  Mass.  595  ;  Packard  v.  Nye, 
2  Met.  47;  Bank  of  British  North 
America  v.  Hooper,  6  Gray,  667  ;  Morrell 
V.  Codding,  4  Allen,  403  ;  Seaver  v.  Co- 
bum,  10  Cush.  324  ;  Fiske  v.  Eldridge, 
12  Gray,  474  ;  Stone  v.  Wood,  7  Cow. 
453  ;  Bank  v.  Monteath,  1  Den.  402  ; 
Duvall  i>.  Craig,  2  Wheat.  45  ;  Foster  v. 
Fuller,  6  Mass.  58  ;  White  v.  Skinner,  13 
Johns.  307  ;  El  well  v.  Shaw,  16  Mass. 
42  ;  Smith  v.  Morse,  6  Wall.  76,  83  ; 
Jones  V.  Littledale,  6  A.  &  E.  486  ;  Magee 
V.  Atkinson,  2  M.  &  W.  440  ;  Higgins  v. 
Senior,  8  M.  &  W.  834  ;  Appleton  v. 
Sinks,  5  East,  148. 


I 


m 


rrii! 


■ijl 


i'lhl:  I 


m 


602 


COMMENTARIES  ON  SALES. 


[book  II. 


the  iuformation  which  is  thus  suggested  to  him,  it  is  his  own  fault, 
and,  as  against  an  innocent  party,  he  must  bear  the  Ibss.^ 

Where  a  note  is  signed  by  the  cashier  of  a  bank  for  a  loan 
made,  it  is  open  to  both  of  the  parties  to  show  that  the  loan  was, 
in  fact,  made  to  the  I  anic,  and  that  the  note  was  really  made  as 
the  obligation  of  tht  bank.* 

By  the  articles  of  association  of  a  telegraph  company  it  was 
provided  that  three  directors  should  be  the  quorum  necessary  for 
the  transaction  of  business ;  and  the  directors  were  empowered, 
in  their  discretion,  to  sell  ali  or  any  one  or  more  of  the  company's 
lines  of  telegraph,  grants,  licenses,  powers,  ways,  way-leases,  ease- 
ments, privileges,  engagements,  or  contracts,  or  any  part  of  its 
good-will,  estates,  property,  or  interest  therein,  upon  such  terms 
and  conditions  as  they  should  deem  expedient ;  and  also  at  their 
discretion  to  appoint  agents,  any  such  agent  to  be  remunerated 
at  the  discretion  of  the  directors.  The  company  resolved  to  sell 
their  undertaking  to  the  Postmaster-General,  and  in  July,  1869, 
a  letter  was  wi  itten,  addressed  to  C,  appointing  him  to  act  as 
agent  for  the  directors  in  the  matter  of  the  sale,  and  agreeing 
that  if  he  succeeded  in  obtaining  from  the  Postmaster-General 
the  sum  of  £20,000  or  upwards,  his  commission  should  be  £25 
per  cent.  The  letter  concluded  by  saying ;  "  We  engage  to  sign 
a  legal  obligation  to  the  above  effect,  when  called  upon  to  get  the 
signatures  of  our  brother  directors."  This  letter  was  written  in 
C.'s  office,  and  there  signed  by  two  of  the  directors  and  handed  to 
C,  who  forwarded  it  to  a  third  director  in  the  country,  by  whom 
it  was  returned  to  C,  confirmed  and  signed  by  himself  and  a 
fourth  director.  This  agreement,  though  not  appearing  to  have 
been  resolved  upon  or  confirmed  at  any  meeting  of  directors,  was 


^  West  St.  Louia  Savings  Bank  o. 
Shawnee  County  Bank,  95  U.  S.  557. 
Under  the  Internal  Revenue  Act  of  1864 
(13  Stat,  at  Large,  277)  a  duty  was  im> 
posed  on  the  capital,  etc.,  of  bankers,  by 
section  110  of  the  act;  and  by  section  7  J  of 
the  act  hankers  were  retiuired  to  pay  for  a 
license  to  carry  on  the  business;  and  bank- 
ers were  defined  to  be  those  who  received 
deposits  payable  on  check,  etc.,  who  loaned 
on  stocks,  bills,  etc.,  or  who  received 
stocks,  bills,  etc.,  for  discount  or  sale. 
By  act  of  March  3,  1865  (18  Stat,  at 
Large,  252,  472),  amending  the  prior  act, 
it  was  provided  that  brokers  should  pay 
for  a  license ;  and,  defining  a  broker  un- 
der the  act,  it  was  further  provided  "  that 
every  jierson,  firm,  or  company,  except 
such  as  liold  a  license  as  a  banker,  whose 
business  it  is  as  a  bro'  ar  to  negotiate  pur- 
chases or  sales  of  stocks,  bills,  etc.,  for 
themselves  or  others,  shall  be  regarded  as 


a  broker  under  this  act,  provided  that  any 
person  holding  a  license  as  a  banker  shall 
not  be  required  to  take  out  a  license  as  a 
broker."  By  section  99  of  the  amending 
act  both  brokers  and  bankers  who  were 
"doing  business  as  brokers  "  were  made  lia- 
ble to  a  special  tax  ui)on  all  sales  of  stocks, 
etc.  The  plaintiffs,  having  been  taxed  as 
bankers  under  section  79  of  the  original 
act,  claimed  that  they  were  not  liable  for 
the  tax  under  section  99 ;  but  the  Supreme 
Court  of  the  United  States,  alfirniing  the 
judgment  of  the  Circuit  Court,  held  that, 
under  the  express  language  of  section  99, 
as  the  plaintiffs  were  "  bankers  doing  busi- 
ness as  brokers,"  they  were  liable  for  the 
tax.  Warren  v.  Shook,  91  U.  S.  704. 
And  see  United  States  v.  Fisk,  3  Wall. 
445 ;  United  States  v.  Cutting,  lb.  441 ; 
Clark  V.  Gilbert,  5  Blatch.  330. 

a  Bank  v.  Kennedy,  17  Wall.  19;  Bald- 
win V.  The  Bank  of  Newbury,  1  Wall.  240. 


PART  VIII.] 


AGENCT. 


603 


referred  to  at  a  subsequent  meeting  of  shareholders,  and  not  re- 
pudiated ;  but  no  such  legal  obligation  as  referred  to  in  the  letter 
was  executed.  The  sale  having  been  effected  through  C.'s  agency 
for  a  sum  of  more  than  .£20,000,  it  was  held,  that  the  agreement 
was  not  ultra  vires,  and  that,  though  informal  according  to  the 
internal  regulations  of  the  company,  it  was  binding  against  the 
company  in  favor  of  a  person  dealing  with  them ;  consequently, 
that  C.  was  entitled  to  commission  at  the  rate  of  25  per  cent.^ 

In  Moore  v.  Citizens'  National  Bank  of  Piqua,^  the  cashier  of 
the  bank,  fraudulently,  for  money  lent  to  him,  signed  a  certificate 
in  favor  of  the  plaintiff  for  stock  of  the  bank.  In  an  action 
against  the  bank  for  the  value  of  the  stock,  the  bank  having  re- 
fused to  recognize  the  certificate  as  valid,  the  Supreme  Court  sus- 
tained the  holding  of  the  court  below,  and  held  that  the  plaintiff 
having  dealt  with  the  cashier  personally,  and  not  with  the  bank, 
the  money  having  been  lent  to  him  for  his  private  use,  his  repre- 
sentations to  her  were  made  by  him  personally,  and  not  as  cashier ; 
and  that  the  circumstances  otherwise  were  such  as  to  prevent  her 
from  being  an  innocent  holder  of  the  certificate,  which  had  been 
issued  in  fraud  of  the  bank.^ 

The  declarations  made  by  an  officer  or  agent  of  a  corporation 
in  response  to  timely  inquiries  properly  addressed  to  him,  and  re- 
lating to  matters  under  his  charge,  in  respect  to  which  he  is 


1  7)1  re  Barelli's  Telegraph  Co.,  Collie's 
Claim,  L.  R.  12  Eq.  246.  See  Renter  v. 
Electric  Telegraph  Co.,  6  E.  &  13.  341, 
348 ;  Totterdell  v  Fareham  Brick  k  Tile 
Co.,  L.  R.  1  C.  P.  674  ;  Bargate  «;.  Short- 
ridge,  6  H.  \u  Gas.  297,  318  ;  In  re  Bar- 
ned's  Banking  Co.,  L.  R.  3  Ch.  105;  In  re 
County  Life  Assur.  Co.,  L.  R.  5  Ch.  288  ; 
Agar  0.  Athenaeum  Life  Assur.  Society, 
3  C.  B.  N.  s.  725 ;  D'Arcy  v.  Tamar  Ry. 
Co.,  L.  R.  2  Ex.  158. 

«  111  U.  S.  156. 

8  A  person  who  takes  such  a  security 
with  knowledge  that  the  conditions  on 
which  alone  the  security  was  authorized 
were  not  fulfilled  is  not  protected,  and  in 
his  hands  the  security  is  invalid,  though 
the  imperfection  is  in  some  matter  relating 
to  the  internal  afl'airs  ot  rhe  corporation, 
which  would  be  unavailable  against  a  bmid 
fide  holder  of  the  same  security.  Hacken- 
sack  Water  Co.  v.  De  Kay,  9  Stow.  N.  J. 
548,  565;  Merchants'  Bank  v.  State  Bank, 
10  Wall.  604,  644 ;  Wright's  Appeal,  99 
Pa.  St.  425.  Otherwise,  where  the  pur- 
chases are  made  in  good  faith  in  the  open 
market,  with  no  notice  of  any  fraud  or 
irregularity  in  the  issue.  Titus  v.  Great 
Western  "Turnpike,  61  N.  Y.  237;  Bruff  u. 
Mali,  36  N.  Y.  200;  McNeU  ».  Tenth  Na- 


tional Bank,  46  N.  Y.  325;  Moore  v.  Met- 
ropolitan Bank,  55  N.  Y.  41;  Hollnook  ti. 
New  Jei-sey  Zinc  Co. ,  67  N.  Y.  616  ;  Mer- 
chants' Bank  i'.  Livingston,  74  N.  Y.  223; 
Kentucky  Bank  v.  Kurtz,  99  Pa.  St.  344, 
349 ;  Tome  v.  Parkcrsburg  R.  R.,  39  Md. 
36;  Western  Maryland  R.  R.  v.  Franklin 
Bank,  60  Md.  36;  Bridgeport  Bank  v.  New 
York  &  New  Haven  R.  R.,  30  Conn.  231; 
New  York  &  New  Haven  R.  R. «;.  Schuyler, 
34  N.  Y.  30.  And  see  Midland  Ry.  Co.  v. 
Taylor,  8  H.  L.  Cas.  751 ;  Bank  v.  Lanier, 
11  Wall.  369;  Telegraph  Co.  v.  Davenport, 
97  U.  r.  3"> ;  Pratt  v.  Taunton  Copper 
Co.,  12o  M>  110;  Pratt  v.  Boston  &  Al- 
bany R.  R.,  126  Mas.s.  443;  In,  re  Bahia  & 
San  Francisco  ?  v.,  L.  R.  3  Q.  B.  684; 
Ashby  V.  Black Atll,  2  Eden,  399  ;  Hild- 
yard  v.  South  S^a  Company,  2  P.  Wms. 
76  ;  Siinm  v.  Anglo-American  Telegraph 
Co.,  5  Q.  B.  Div.  188  ;  Hart  v.  Frontiuo 
Mining  Co.,  L.  R.  6  Ex.  Ill  ;  Barwick  v. 
English  Joint  Stock  Bank,  L.  R.  2  Ex. 
259  ;  Mackay  v.  Commercial  Bank,  L.  R. 
5  P.  C.  394;  Swift  ».  Winterbotham,  L.  R. 

8  Q.  B.  244 ;  Swift  v.  Jewsbury,  L.  R. 

9  Q.  B.  301 ;  The  Queen  «;.  Shropshire 
Union  Co.,  L.  R.  8  Q.  B.  420 ;  L.  B. 
7  H.  L.  496. 


604 


COMMENTABIES  ON  SALES. 


[book  II. 


authorized  in  the  usual  course  of  business  to  give  information, 
may  be  given  in  evidence  against  the  corporation.^  It  is  because 
the  declaration  of  an  agent  is  a  verbal  act  and  part  of  the  res 
geitcB^  that  it  is  admissible,  and  whenever  what  he  did  is  admitted 
in  evidence,  then  it  is  competent  t  j  prove  what  he  said  about  the 
act  while  he  was  doing  it.^  It  is  within  the  scope  of  the  general 
authority  of  the  cashier  of  a  bank  to  receive  offers  for  the  pur- 
chase of  securities  of  the  bank,  and  to  state  whether  or  not  the 
bank  owns  securities  which  a  customer  wants  to  buy.  His  state- 
ment to  such  an  one  that  the  bank  was  not  the  owner  of  a  certain 
security  in  his  manual  possession  as  cashier,  is  clearly  within  the 
line  of  his  duty,  and  is,  tlierefore,  binding  on  the  bauk.^ 

Directors  of  a  bank  cannot,  in  justice  to  those  who  deal  with 
the  bank,  shut  their  eyes  to  what  is  going  on  around  them.  It  is 
their  duty  to  use  ordinary  diligence  in  ascertaining  the  condition 
of  its  business,  and  to  exercise  reasonable  control  and  supervision 
of  its  officers.  That  which  they  ought  by  proper  diligence  to  have 
known  as  to  the  general  course  of  business  in  the  bank,  they  may 
be  presumed  to  have  known  in  any  contest  between  the  corpora- 
tion and  those  who  are  justified  by  the  circumstance!^  In  dealing 
with  its  officers  upon  the  basis  of  that  course  of  business.  Hence, 
thougn  it  is  quite  true,  that  a  cashier  of  a  bank  has  no  power  by 
virtue  of  his  office  to  bind  the  corporation,  except  in  the  discharge 
of  his  ordinary  duties,  and  that  the  ordinary  business  of  a  bank 
does  not  comprehend  a  contract  made  by  a  cashier  without  dele- 
gation of  power  by  the  board  of  directors,  involving  the  payment 
of  money  not  loaned  by,  the  bank  in  a  customa'*/  way;*  so  that, 
ordinarily,  he  has  no  power  to  discharge  a  debtor  without  pay- 
ment ;  nor  to  surrender  the  assets  or  securities  of  the  bank  ;  nor, 
—  certainly  not,  unless  the  debt  secured  is  paid,  —  cancel  its  deeds 
of  trust  given  as  security  for  money  loaned,  in  the  absence  of 
authority  conferred  by  the  directors ;  it  is  clear  that  a  banking 
corporation  may  be  represented  by  its  cashier,  at  least  where  its 
charter  does  not  otherwise  provide,  in  transactions  outside  of  his 
ordinary  duties,  without  his  authority  to  do  so  being  in  writing, 


1  Bank  of  Monroe  r.  Field,  2  Hill,  445; 
McGennesa  v.  Adriatic  Mills,  116  Mass. 
177;  Morse  v.  Connecticut  River  R.  R.  Co., 
6  Gray,  450. 

*  Mechanics'  Bank  of  Alexandria  v. 
Bank  of  Columbia,  5  Wheat.  326,  336  ; 
Cliquot's  Champagne,  3  WalL  114;  Cooley 
V.  Norton,  4  Cush.  93  ;  Haanay  v.  Stew- 
art, 6  Watts,  487 ;  Garth  v,  Howard,  8 
Bing.  451. 

*  Xenia  Bank  v.  Stewart,  114  U.  S. 
224.    See  Cocheco  Bank  v.  Haskell,  $1 


N.  H.  116  ;  Fleckner  v.  Bank,  8  Wheat. 
338;  Gould  r,  Cayuga  Bank,  66  How.  Pr. 
505 ;  Merchants'  Bank  v.  Marine  Bank, 
3  Gill,  96  ;  The  Chicago,  &c.  R.  R.  Co.  v. 
Coleman,  18  111.  297;  Bank  of  Monroe  v. 
Field,  2  Hill,  446  ;  Mining  Co.  v.  McMa- 
hon,  1  Head,  582. 

*  United  States  Bank  r.  Dunn,  6  Pet. 
61 ;  United  Statps  v.  City  Bank  of  Colum- 
bus, 21  How.  356;  Merchants'  Bank  v. 
State  Bank,  10  Wall.  604. 


PART  VIII.] 


AGENCT, 


605 


cr  appearing  upon  the  record  of  the  proceedings  of  the  directors. 
His  authority  may  bo  by  parol,  and  collected  from  circumstances. 
It  may  be  inferred  from  the  general  manner  in  which,  for  a  period 
sufficiently  long  to  establish  a  settled  course  of  business,  he  has 
been  allowed  without  interference  to  conduct  the  a£Fairs  of  the 
bank.  It  may  be  impliad  from  the  conduct  or  acquiescence  of 
the  corporation,  as  represented  by  the  board  of  directors.  And 
when,  during  a  series  of  years  or  in  numerous  business  trans- 
actions, he  has  been  permitted,  without  objection  and  in  his  offi- 
cial capacity,  to  pursue  a  particular  course  of  conduct,  it  may  be 
presumed,  as  between  the  bank  and  those  who  in  good  faith  deal 
with  it  upon  the  basis  of  his  authority  to  represent  the  corpora- 
tion, that  he  has  acted  in  conformity  with  instructions  received 
from  those  who  have  the  right  to  control  its  operations.^ 

5.  Fraud  and  Concealment  by  Agent. 

An  agent  commissioned  by  a  vendor  to  find  a  purchaser  has 
authority  to  describe  the  property,  and  to  state  any  fact  or  cir- 
cumstance which  may  affect  the  value  so  as  to  bind  the  vendor ; 
and  if  an  agent  so  commissioned  makes  a  false  statement  as  to  the 
description  or  value  (though  not  instructed  so  to  do)  which  the 
purchaser  is  led  to  believe,  and  upon  which  he  relies,  the  vendor 
cannot  recover  in  an  action  for  specific  performance.  A  surveyor 
was  employed  by  the  owner  of  a  leasehold  house  to  find  a  pur- 
chaser. He  represented  to  the  defendant  that  another  person,  H., 
was  ready  to  buy  the  property  for  £700,  and  that  if  tlie  defend- 
ant were  to  give  £50  more,  he  would  mak.e  a  clear  profit  of  seven 
per  cent. ;  that  H.  had  further  offered  to  rent  the  property  at 
£300,  or  the  ground  floor  only  at  £200.  The  defendant,  relying 
on  the  above  representations  and  others,  which  were  unauthorized 
by  the  vendor  and  untrue,  contracted  to  purchase  for  £750  ;  but, 
afterwards  finding  out  the  falsehood,  refused  to  complete.  The 
vendor  himself  also  made  a  misleading  statement  to  the  purchaser. 
It  was  held  that,  independently  of  the  statement  made  by  the 
vendor  himself,  the  false  statements  of  the  agent,  being  within  his 
authority,  were  sufficient  to  vitiate  the  contract,  and  specific  per- 
formance of  the  contract  was  refused  .^ 


1  Martin  v.  Webb,  110  U.  S.  7.  See 
authoriti«9  cited  in  note  3,  p.  604,  ante. 

a  Mullens  v.  Miller,  22  Ch.  Div.  194. 
Bacon,  V.  C,  in  delivering  judgment,  said: 
"  A  man  employs  an  agent  to  let  a  house 
for  him.  That  authority,  in  my  opinion, 
contains  also  an  authority  to  describe  the 
property  truly,  to  represent  its  actual  situ- 
ation, and,  if  he  thinks  fit,  to  represent  its 


value.  That  is  within  the  scope  of  the 
agent's  authoritv;  and  when  the  authority 
is  changed,  and  instead  of  being  an  au- 
thority to  let  it  becomes  an  authority  to 
find  a  purchaser,  I  think  the  authority  is 
just  the  same.  I  think  the  principal  does 
thereby  authorise  his  agent  to  describe, 
and  binds  him  to  describe  truly,  the  prop- 
erty which  is  to  be  the  subject  disposed  of. 


m 


606 


COMMENTARIES  ON  SALES. 


[book  II. 


A.,  being  aware  that  R  wished  to  obtain  shares  in  a  certain 
company,  represented  to  B.  that  he,  A.,  could  procure  a  certain 
number  of  shares  at  <£3  a  share.  B.  agreed  to  purchase  at  that 
price,  and  the  shares  were  thereupon  transferred,  in  part  to  him 
and  in  part  to  his  nominees,  and  he  paid  to  A.  £3  a  share.  He 
afterwards  discovered  that  A.  was  in  fact  the  owner  of  the  shares, 
having  just  bought  them  for  £2  a  share.  It  was  held,  on  ap- 
peal, reversing  the  decision  of  Lord  Romilly,  M.  R.,  that,  on  the 
facts,  A.  was  an  agent  for  B. ;  and  A.  was  ordered  to  pay  back  to 
B.  the  difference  between  the  prices  of  the  shares.^ 

The  plaintiff,  in  the  year  1868,  consigned  a  ship  to  G.  &  Co.,  in 
China,  for  sale,  fixing  a  minimum  price  of  $90,000,  and  requiring 
cash  payment.  G.  &  Co.  employed  the  defendant  in  Japan  to 
sell  the  ship,  with  the  same  instructions.  This  was  done  wii  'he 
knowledge  and  consent  of  the  plaintiff.  The  defendant,  having 
vainly  attempted  to  sell  the  ship  on  the  terms  mentioned,  took  her 
himself  for  $90,000,  and,  about  the  same  time,  resold  her  to  a 
Japanese  prince  for  $100,000,  payable  as  to  $75,000  in  cash,  and 
the  rest  on  credit.  The  plaintiff  was  not  informed  that  the  de- 
fendant had  purchased  the  vessel  himself,  or  that  he  had  resold  it, 
till  June,  1869,  after  the  transaction  was  completed.  The  de- 
fendant paid  $90,000  to  G.  &  Co.,  who  remitted  it  to  the  plaintiff, 
and  eventually  obtained  the  whole  amount  of  $160,000  from  the 
Japanese  prince.  In  1873  the  plaintiff  filed  a  bill  to  compel 
the  defendant  to  account  for  the  profit  made  by  him  in  *he  resale 
of  the  ship.  Held,  on  appeal,  affrming  the  decision  of  Hall,  V.  C, 
that  the  relation  of  principal  and  agent  was  established  between 
the  plaintiff  and  defendant,  and  existed  at  the  time  of  the  pur- 
chase and  resale  of  the  ship  by  the  defendant,  and  that  he  was 
therefore  liable  to  account  to  the  plaintiff  for  the  profit  made  by 


He  authorizes  the  agent  to  state  any  fact 
or  circumstance  which  may  relate  to  the 
value  of  the  property.  ...  A  representa- 
tion was  made  by  an  aj^ent  who,  as  I  think. 
and  as  I  hold,  was  authorized  to  make  the 
representation  if  it  was  true,  but  who  had 
no  authority  from  his  principal  to  state 
any  falsehood.  If  he  did  state  any  false- 
hood on  behalf  of  his  principal,  and  if  he 
thereby  induced  a  purchaser  to  enter  into 
a  contract,  he  did  that  which  now  prevents 
the  principal  from  saying  that  the  agree- 
ment shall  be  specifically  performed."  See 
Barwick  v.  English  Joint  Stock  Bank, 
L.  R.  2  Ex.  259 ;  Mackay  v.  Commfercial 
Bank  of  New  Brunswick,  L.  R.  5  P.  C. 
S94 ;  Swire  v.  Francis,  3  App.  Cas.  106  ; 
Higgins  «.  Samels,  2  J.  &  H.  460 ;  Red- 
grave V.  Hnrd,  20  Ch.  Div.  1. 

*■  Kimber  «.  Barber,  L.  R.  8  Ch.  Ap. 


66.  The  difficulty  in  the  case  with  Lord 
Romilly  was,  thiit  he  treated  the  transac- 
tion as  one  between  vendor  and  vendee ; 
and  as  there  could  not  be  a  restitutio  in 
integrum,  that  the  purchaser  had  lost  his 
remedy.  Great  Luxembourg  Ry.  Co.  v. 
Magnay,  25  Beav.  686.  But  the  Court  of 
Appeal  held  that  a  fiduciary  relation  ex- 
isted between  the  parties,  and  that  the 
case  was  one  of  a  clearly  established 
agency,  in  which  the  common  relief  would 
be  decreed.  Hichens  v.  Congreve,  4  Russ. 
562,  577;  Bank  of  London  v.  Tyrrell,  10 
H.  L.  Cas.  26 ;  Fox  v.  Mackreth,  2  Br. 
Ch.  400  ;  Fawcett  v.  Whitehouse,  1  Russ. 
&  M.  132 ;  Driscoll  v.  Bromley,  1  Jur. 
238,  306  ;  Lees  v.  Nuttall,  1  Russ.  &  M. 
63;  Massey  i>.  Davies,  2  Ves.  317;  Bentley 
V.  Craven,  18  Beav.  75;  Beck  v.  Kantero- 
wicz,  3  K.  &  J.  230. 


PART   VIII.] 


AGENCY. 


607 


him  in  the  transaction.  And  that,  on  the  principle  that  where  a 
wrongful  act  has  been  completed  without  the  knowledge  or  as- 
sent of  the  party  injured,  his  right  of  action  is  not  ordinarily 
barred  by  mere  submission  to  the  injury,  or  even  by  a  voluntary 
promise  not  to  seek  redress,  —  some  conduct  amounting  to  re- 
lease, or  accord  and  satisfaction,  must  be  shown ;  although  on 
account  of  lache»  relief  may  be  refused  under  special  circum- 
stances. It  was  further  held,  that  there  had  been  no  such  acqui- 
escence or  lache%  on  the  part  of  the  plaintiff  as  to  disentitle  him 
to  relief.' 

The  knowledge  of  counsel  in  a  particular  transaction*  is  notice 
to  his  client.  And  though  the  client  may  not  actively  participate 
in  accomplishing  a  fraud,  yet  if  he  be  looking  on  at  what  is  done 
by  another  who  is  his  confidential  agent  and  professional  adviser 
generally,  and  has  been  his  agent  and  adviser  in  regard  to  a  par- 
ticular matter  called  in  question  as  fraudulently  accomplished, 
and  if,  when  all  is  accomplished,  the  client  take  and  profit  by 
the  fruits  of  all  that  has  been  done,  he  will  be  taken  as  affected 
with  knowledge  possessed  by  his  agent.* 

In  McPherson  v.Watt,^  where  an  agent  bought  property  from 
his  principals,  of  whom  he  was  the  attorney,  pretending  that  it 
was  for  another,  and  concealing  from  his  principals  tiie  fact  that 
he  was  buying  it  for  himself,  the  House  of  Lords  held,  reversing 
the  decision  of  the  Scotch  court*  appealed  from,  that  the  pur- 
chase could  not  be  enforced.  And  per  Lord  Cairns,  V.  C,  assum- 
ing that,  in  every  respect,  this  was  a  sale  which  might  have  been 
supported  had  the  principals  been  told  that  their  agent  was  him- 
self the  purchaser,  it  could  not  be  supported,  that  fact  not 
having  been  disclosed.^ 


;! 


»  De  Bussche  v.  Alt,  8  Ch.  D.  286. 
See  Fawcett  v.  Whitehouse,  1  Russ.  &  My. 
132 ;  Hay's  Case,  L.  R.  10  Ch.  593;  Dunne 
V.  English,  L.  R.  18  Eq.  524 ;  Duke  of 
Leeds  v.  Earl  Amherst,  2  Ph.  123. 

a  May  v.  Le  Claire,  11  Wall.  217;  re- 
porter's note. 

»  3  App.  Gas.  254. 

*  Scotch  Cases,  4th  series,  vol.  iv. 
p.  601. 

*  Lord  Blackburn  somewhat  quaintly 
observed:  "He  was  advising  them,  and, 
therefore,  he  was  quite  in  a  different  posi- 
tion from  a  man  who  was  a  stranger  bar- 
gaining for  himself.  Such  a  man  might 
say,  Your  house  is  not  a  good  one.  He 
might  say  it  was  valueless,  and  you  had 
better  sell  it  a  great  deal  cheaper,  and 
take  a  smaller  price  for  it.  Such  has 
been  the  course  of  business  for  at  least 
three  thoosand  years.     '/<  is  naught,  U  is 


naught,  saith  the  buyer  :  but  when  he  is 
gone  his  way,  then  he  boasteth.'  Pro- 
verbs XX.  14.  When  a  vendor  is  dealing 
with  a  stranger,  the  purchaser  is  not  to 
tell  him  any  lies  ;  but  the  vendor  has  no 
right  to  say,  I  expect  and  believe  that  he 
will  give  him  disinterested  advice.  On 
the  other  hand,  when  an  attorney  is  acting 
for  both  sides  it  is  otherwise.  Tlien  the 
vendor  has  a  right  to  expect  that  there 
shall  be  disinterested  and  true  advice,  and 
I  do  not  see  the  practical  difficulty  of  giv- 
ing it."  Murphy  v.  O'Shea,  2  J.  &  La  T. 
422 ;  Lewis  v.  Hillman,  3  H.  L.  Cas. 
607;  Charter  v.  Trevelyan,  11  CI.  k  F. 
714;  Tate  v.  Williamson,  L.  R.  1  Eq. 
528  ;  L.  R.  2  Ch.  App.  65 ;  Gibson  v. 
Jeyes,  6  Ves.  278 ;  Smith  v.  Kay,  7  H.  L. 
Cas.  750;  Billage  v.  Southee,  9  Hare,  634, 
640 ;  Holman  t).  Loynes,  4  De  O.  M.  & 
0.  278.    In  Lewis  v.  Hillman,  8  H.  L. 


608 


COMMENTARIES  ON  SALES. 


[book  II. 


The  plaintiff  au.iiorized  defendant,  as  his  broker,  to  negotiate 
for  the  purchase  of  a  particular  ship  on  the  basis  of  an  offer 
of  £9000;  but  eventually  the  ship  was  purchased  through 
defendant  for  £9250.  Prior  to  the  sale,  an  arrangement  had 
been  made  between  the  vendor  and  a  broker,  S.,  that  if  8.  could 
sell  the  ship  for  more  than  £8500  he  might  retain  for  himself 
the  excess;  and  it  was  arranged  between  S.  and  defendant, 
without  the  knowledge  or  sanction  of  plaintiff,  that  defendant 
should  receive  from  S.  a  portion  of  such  excess  ;  and  accordingly 
defendant  received  £225,  part  of  the  excess  over  £8500.  On 
discovering  this,  the  plaintiff  brought  an  action  for  money  had 
and  received  for  the  £225.*  In  addition  to  the  above  facts,  the 
jury  found  that  defendant  was  the  agent  of  plaintiff  to  purchase 
the  ship  as  cheaply  as  she  could  be  got,  and  plaintiff  could 
have  got  her  cheaper  but  for  the  arrangement  between  vendor 
and  S.  On  verdict  entered  for  the  plaintiff  the  action  was 
sustained.' 

In  Barwick  v.  English  Joint  Stock  Bank,^  it  was  held,  by  the 
Exchequer  Chamber,  that  a  principal  is  liable  to  an  action  for 
the  fraudulent  misrepresentation  of  his  agent,  acting  in  the 
course  of  his  business.*    The  facts  were  that  the  plaintiff,  hav- 


Cas.  607,  630,  Lord  St.  Leonards,  in 
holding  in  the  case  of  a  sale  of  any  kind 
which  is  so  fair,  so  reasonable  as  to  price, 
so  entirely  free  from  anything  else  that  is 
obnoxious,  aa  to  be  capable  of  being  sup- 
ported, yet  if  there  has  entered  into  the 
sale  the  ingredient  that  the  client  has  not 
been  made  aware  that  the  real  purchaser 
is  his  law  agent,  if  the  purchase  has  been 
made  in  the  name  of  some  other  person 
for  that  law  agent,  that  is  a  sale  which 
cannot  be  supported,  said:  "No  man  in 
a  court  of  eq^uity  is  allowed  himself  to  buy 
and  sell  the  same  property.  He  cannot 
sell  to  himself.  Even  in  the  case  of  a  fair 
trustee,  he  cannot  sell  to  himself.  If  he 
has  the  power  or  the  trust  to  sell,  he  must 
have  some  one  to  deal  with.  Courts  of 
equity  do  not  allow  a  man  to  assume  the 
double  character  of  seller  and  purchaser ; 
and  it  is  necessary,  in  order  to  preserve 
the  interests  of  persons  entitled  benefi- 
cially to  property,  to  maintain  that  rule. 
I  should  lay  it  down  as  a  rule  that  ought 
never  to  be  departed  from,  that  if  an  attor- 
ney or  agent  can  show  he  is  entitled  to 
purchase,  yet  if,  instead  of  openly  pur- 
chasing, he  purchases  in  the  name  of  a 
trustee  or  agent  without  disclosing  the 
fact,  no  such  purchase  as  that  can  stand 
for  a  single  moment.  Such  a  transaction 
to  stand  must  be  open  and  fair,  and  free 
from  all  objection.  And  if  a  man  pur- 
chase by  putting  forward  a  clerk  of  his 


own,  not  as  a  clerk,  not  as  an  agent,  but 
as  an  actual  bond  fide  purchaser  upon  an 
absolute  and  independent  contract,  he 
does  that  which,  the  moment  it  is  stated, 
renders  the  deed  powerless  for  the  purpose 
for  which  it  was  framed  and  executed ; 
and  the  court  will  hold  the  parties  re- 
sponsible for  everything  that  results 
from  it." 

1  In  Rogers  v.  Boehm,  2  Esp.  702, 
Lord  Kenyon  ruled  that  interest  made  by 
an  agent  hy  tlie  use  of  his  principal's 
money  belonged  to  the  latter,  and  might 
be  recovered  by  him  in  an  action  for 
money  had  and  received.  Thompson  v. 
Havelock,  1  Camp.  527  ;  Diplock  v. 
Blackburn,  3  Camp.  43 ;  Barber  v.  Den- 
nis, 6  Mod.  69 ;  A)ion.  12  Mod.  415. 
And  in  equity  the  rule  is  that  the  profits, 
directly  or  indirectly  made  in  the  course 
of  or  in  connection  with  his  employment 
by  a  servant  or  agent,  without  the  sanc- 
tion of  the  master  or  principal,  belong 
absolutely  to  the  master  or  principal. 
Massey  v.  Davies,  2  Ves.  317;  Turnbull 
V.  Garden,  38  L.  J.  Ch.  331,  334;  Kimber 
V.  Barber,  L.  R.  8  Ch.  Ap.  56. 

'  Morison  v.  Thompson,  L.  B.  9  Q.  B. 
480. 

»  L.  R.  2  "Ex.  259. 

*  This  ))oint  was  decided  as  long  ago  as 
the  time  of  Salkeld  (a.  d.  1708),  in  Hern 
V.  Nichols,  1  Salk.  289,  where,  in  an  ac- 
tion for  8  deceit,  the  plaintilf  set  forth, 


PART  vin.] 


AGENCY. 


609 


ing  for  some  time,  on  a  guarantee  of  the  defendants,  supplied 
J.  D.,  a  customer  of  theirs,  with   oats   on  credit,  for  carrying 


that  he  bouj^ht  several   parcels  of   silk 

for silk,  whereas  it  was  imother  kind 

of    silk  ;    and   that  the   dcrunduiit,   well 

knowing  tliis  deceit,  sold  it  to  him  for 

silk.  On  trial,  niHin  a  plea  uf  not  guilty, 
it  appeared  that  tliere  was  no  aetual  deceit 
in  the  defendant  who  was  the  merchant, 
but  that  it  was  in  his  factor  lieyond  sea. 
And  the  doubt  was,  if  this  deceit  could 
charge  the  nierchiint.  Holt,  ('.  J.,  held, 
that  the  merchant  was  answerable  for  the 
deceit  of  his  factor,  though  not  criminal' 
iter,  yet  civililcr;  "for  seeing  somebody 
must  be  a  loser  bv  this  deceit,  it  is  more 
reason  that  he  who  employs  and  puts  a 
trust  and  confidence  in  the  deceiver  should 
be  a  loser  than  a  stranger."    And,  u|)yn 


this  opinion,  the  (ilnintiir  had  a  verdict. 
The  same  principle  was  applied  in  Fitz- 
herlwrt  v.  Mather,  1  T.  R.  1*2,  where,  in  a 
cose  of  insurance,  the  jiolicy  was  obtained 
by  the  fraudulent  concealment  of  the  agent 
of  the  loss  of  the  vessel,  the  principal 
having  no  knowledge  of  the  fact.  Ash- 
urst,  J.,  said  :  "On  general  principles  of 
policy,  the  act  of  the  agent  ought  to  bind 
the  principal ;  because  it  must  be  taken 
for  granted,  that  the  principal  knows 
whatever  the  agent  knows.  And  there  is 
no  hardship  on  the  part  of  the  iilaintiff ; 
for  if  the  fact  had  been  known,  tne  policy 
could  not  have  been  etfected."  Lord 
Hardwicke,  in  Hartop  v.  Hoare,  3  Atk. 
44,  47,  by  a  distinction  which  he  there 
draws,  well  shows  that  to  nu'k';  the  prin- 
cipal liable  for  the  fraud  of  his  agent,  the 
fraud  must  have  been  committed  within 
the  scope  of  the  agent's  employment, — a 
principle  which  is  the  very  basis  of  the 
well-decidetl  modern  cases  on  the  sub- 
ject. Lord  Hardwicke,  referring  to  the 
holding  of  Holt,  C.  J.,  in  Hern  v. 
Nichols,  1  Salk.  289,  .says:  "There 
is  no  doubt  but  the  verdict  was  right 
in  that  case,  for  the  defendant  emjiloyed 
his  factor  in  the  act  of  selling,  in  which 
the  deceit  was  committed,  and  by  em- 
ploying him  as  a  factor  he  created  a 
credit  in  him."  lUit,  in  Hartop  v.  Hoare, 
3  Atk.  44,  the  plaintilf  lodged  jewels  for 
safe  custody  with  S.,  carefully  sealed,  and 
S.  subsequently  took  out  the  jewels,  and 
obtained  money  on  them  from  a  banker. 
Here,  Lord  Hardwicke  says.  Hern  i'. 
Nichols  is  not  the  present  case,  "  for  the 
plaintiff  here  gave  no  iwwer  to  S.  to  do 
the  act  in  which  the  deceit  was,  but  on 
the  contrary  hath  used  a  prudent  method 
to  prevent  it.  The  present  case,  therefore, 
is  like  the  case  in  1  Inst.  89,  where  A. 
leaves  a  chest  locked  with  B.,  and  taketh 
away  the  key  ;  there  A.  does  not  entrust 

TOL.   I.  89 


B.  with  the  goods."  Fraud  will  vitiate 
any  transaction,  though  the  princi|)al  do 
not  personally  take  any  |Hirt  in  the  fraud, 
if  his  agent  do  ;  for  the  principal  is  civilly 
responsible  for  the  acts  of  his  agent  within 
the  HCo\xi  of  his  employment.  Doe  t'. 
Martin,  4  T.  H.  39.  So,  in  Udell  v. 
Atherton,  7  H.  &  N.  172,  it  was  held  by 
Pollock,  C.  B.  and  Wilde,  B.,  Martin  and 
Bramwell,  Hit.,  dis.sciitiiig,  that  a  prin- 
ciiNil  is  liable,  in  an  action  of  deceit,  for 
the  false  and  fraudulent  representations  of 
his  agent,  as  to  the  quality  and  value  of 
an  article,  whereby  a  person  has  l>*>en  in- 
duced to  purchase  it  for  more  than  its 
worth,  notwithstanding  that  the  principal 
neither  authorized  nor  knew  of  the  fraudu- 
lent conduct  of  his  agent.  The  plaintiff 
having  paid  for  the  artiide,  in  an  action 
against  the  ])rincipal  for  the  fraud  the 
plaintilf  was  nonsuited  ;  so  the  o|>inion  of 
Martin  and  Bramwell,  BB.,  .prevailed. 
The  rule  was  admitted  all  around  in  this 
case  to  be  that  where\er  an  agent,  within 
the  scojie  of  his  authority,  makes  a  fniudu- 
lent  misrepresentation,  his  (irincipal  is  li- 
able. But  the  ditiiculty  which  arose  in 
the  ease  was  in  applying  the  rule,  and  the 
prevailing  oi)inion  really  rested  upon  the 
fact  that  the  agent  was  really  a  special  and 
not  a  general  agent,  and  that  the  fraud 
was  that  of  the  agent  and  not  of  the  prin- 
cipal. This  is  considered  by  the  court  in 
Barwick  v.  Knglish  .loint-Stock  Bank,  L. 
K.  2  Ex.  259,  265,  where  it  is  said :  "  If 
there  be  fraud  in  the  manager,  then  ari.sos 
the  question,  whether  it  was  such  a  fraud 
as  the  bank,  his  employers,  would  be  an- 
swerable for.  With  respect  to  that,  we 
conceive  we  are  in  no  respect  overruling 
the  ojunions  of  my  Brothers  Martin  and 
Bramwell,  in  Udell  v.  Atherton,  7  H.  & 
N.  172,  the  case  most  relied  upon  for  the 
purpose  of  establishing  the  proposition  that 
the  principal  is  not  answerable  for  the 
fraud  of  his  agent.  Upon  looking  at  that 
case,  it  seems  pretty  dea;-  that  the  division 
of  opinion  which  took  place  in  the  Court 
of  Exchefjuer  arose,  not  so  much  upon  the 
question  whether  the  princi{)al  is  answer- 
able for  the  act  of  an  agent  in  the  course 
of  his  busines.s,  —  a  question  which  was 
settled  as  early  as  Lonl  Holt's  time,  —  but 
in  applying  that  principle  to  the  peculiar 
facts  of  the  case  ;  the  act  which  was  relied 
upon  there  as  constituting  a  liability  in 
the  sellers  having  been  an  act  adopted  by 
them  under  peculiar  circumstances,  and 
the  author  of  that  act  not  being  their 
general  agent  in  business,  as  the  manager 
of  a  bank  is."  See  further,  Comfoot  v, 
Fowke,  6  M.  &  W.  373  ;  Wilson  v.  Fuller, 


I  ; 


610 


COMMENTABIES  ON  SALES. 


[book  II. 


out  a  government  contract,  refused  to  continue  to  do  so  unless 
he  had  a  better  guarantee.  The  defendants'  manager  thereupon 
gave  him  a  written  guarantee  to  the  effect  that  the  customer's 
check  on  the  bank  in  plaintiffs  favor,  in  payment  for  the  oats 
supplied,  should  be  paid,  on  receipt  of  the  government  money, 
in  priority  to  any  other  payment,  "  except  to  this  bank."  J.  1). 
was  then  indebted  to  the  bank  to  the  amount  of  .£12,000,  but 
this  fact  was  not  known  to  the  plaintiff,  nor  was  it  communi- 
cated to  him  by  the  manager.  The  plaintiff  thereupon  supplied 
the  oats  to  the  value  of  £1227  ,  the  government  money,  amount- 
ing to  £2676,  was  received  by  J.  D.,  and  paid  into  the  bank  ;  but 
J.  D.'s  check  for  the  price  of  oats,  drawn  on  the  bank  in  favor 
of  the  plaintiff,  was  dishonored  by  the  defendants,  who  claimed 
to  retain  the  whole  sum  of  £267^,  in  payment  of  J.  D.'s  debt 
to  them.  The  plaintiff  having  brought  an  action  for  false  repre- 
sentation, and  for  money  had  and  received,  on  the  trial  of  the 
cause  before  Martin,  B.,  a  nonsuit  was  directed  on  the  ground 
that  there  was  no  evidence  to  go  to  the  jury  in  support  of  the 
plaintiff's  case.  But,  on  exceptions,  the  court  held,  that,  on 
the  facts,  the  jury  might  justly  come  to  the  conclusion  that  the 
manager  know  and  intended  that  the  guarantee  should  be  un- 
availing ;  that  he  procured  for  his  employers,  the  bank,  the  gov- 
ernment check,  by  keeping  back  from  the  plaintiff  the  state  of 
J.  D.'s  account,  and  that  he  inter.ded  to  do  so ;  from  which  the 
jury  would  conclude  that  there  was  such  a  fr.'xud  in  the  min- 
ager  as  the  plaintiff  coi.  "^lained  of ;  second,  that  this  was  such 
a  fraud  in  the  manager  a..  '  "  bank,  his  employers,  would  be 
answerable  for  ;  and,  third,  that  •..  description  of  such  fraud  as 
the  fraud  of  the  bank  was  proper.*  a  venire  de  novo  was  accord- 
ingly ordered. 

by  a  sheriff  against  an  execution  creditor, 
on  a  bond  of  indemnity  for  seizing  goods 
\in(*er'  ^fi.  fa.,  defendant  pleaded  that  the 
bond  was  obtained  from  defendant,  by 
plaintiff  and  others  in  collusion  witii  him, 
by  fraud  and  misrepresentation.  It  was 
held  that  the  defendant  supported  this 
plea  by  proof  that  the  sheriff's  officer,  who 
executed  the  process,  obtained  the  bond 
by  fmud  and  misrepresentation,  although 
the  })laintiff  did  not  appear  to  have  been 
personally  cognizant  of  any  part  of  the 
transaction.  See,  also,  to  the  same  elfpct, 
Woodgate  v.  Knatchbnll,  2  T.  R.  148; 
Sturmy  v.  Smith,  11  East,  25  ;  Fitzherbert 
V.  Mather,  1  T.  R.  12  ;  Doe  v.  Martin,  4 
T.  R.  39  ;  Laicock's  Case,  Noy,  90  ;  San- 
derson V.  Baker,  2  W.  Bl.  832  ;  Smart  v. 
Hiitton,  2  N.  &  M.  426  j  North  v.  Miles, 
1  Camp.  389. 


8  Q.  B.  68  ;  Murray  v.  Mann,  2  Ex.  538  ; 
Wilde  V.  Gibson,  1  H.  L.  Cas.  605  ;  Brady 
V.  Todd,  9  C.  B.  N.  s.  592;  Fenn  v 
Harrison,  3  T.  R.  760 ;  Croft  v.  Mhav,, 
4  B.  &  Aid.  590 ;  Ewbank  v.  Nutting,  7 
C.  B.  797  ;  Hamilton  v.  Watson,  12  V\.  fi 
F.  109  ;  Lee  v.  Jones,  17  C.  B.  n.  >5.  :>(y\  ; 
Goff  ».  Great  Northern  Ry.  Co.,  3  E.  &  E. 
672 ;  Roe  v.  Birkenhead  Ry.  Co.,  7  Ex. 
86  ;  Barry  v.  Midland  Ry.  Co.,  Ir.  L. 
Rep.  1  C.  L  130  ;  Huzzey  v.  Field,  2  C. 
M.  &  R.  432,  440  ;  Pickering  i'.  Dowson, 
4  Taunt.  779  ;  Haycraft  v.  Creasy,  2  East, 
92 ;  Polhill  v.  Walter,  3  B.  &  Ad.  114 ; 
licvy  V.  Langridge,  4  M.  &  W.  337  ; 
Moens  v.  Hayworth,  10  M.  &  W.  147  ; 
Evans  v.  Collins,  5  Q.  B.  804,  820 ;  Pas- 
ley  V.  Freeman,  3  T.  R.  61. 

'  This  was  so  held  in  Raphael  v.  Good- 
man, 8  A.  &  E.  665,  where  to  an  action 


PART  VIII.] 


AGENCY. 


611 


A  company  formed  to  work  a  mine  was  compelled  from  want 
of  funds  to  cease  working ;  money  was  then  advanced  to  them  by 
some  of  the  directors,  and  among  them  Barnctt  and  Baldwin. 
Afterwards  at  a  general  meeting  of  the  company,  held  in  order, 
among  other  things,  to  provide  for  the  existing  deficit  and  for 
working  expenses,  the  directors  were  authorized  to  issue  deben- 
tures on  such  terms  and  for  such  amounts  as  they  in  their  discre- 
tion might  think  fit.  The  directors  accordingly  authorized  the 
secretary  to  employ  a  firm  of  brokers  to  place  the  debentures. 
The  brokers  prepared  and  issued  a  prospectus,  bearing  the  names 
of  Bell  and  others  as  directors,  and  containing  statements  as  to 
the  condition  and  prospects  of  the  company,  on  the  faith  of  which 
the  plaintiff  and  others  purchased  debentures.  The  money  thus 
raised  was  paid  to  the  company's  bankers,  and  part  of  it  was  ap- 
plied by  the  directors  on  behalf  of  the  company  to  repay  the  ad- 
vances made  by  Barrett  and  Baldwin.  Tlie  debentures  having 
become  worthless,  the  plaintiff  brought  an  action  for  damages 
against  Bell  and  others  in  respect  of  the  statements  in  the  pro- 
spectus, some  of  which  were  alleged  to  be  fraudulent.  The  jury 
found  that  the  prospectus  contained  statements  of  fact  whicli 
were  false  to  the  knowledge  of  the  brokers,  and  by  which  the 
plaintiff  was  induced  to  part  with  his  money ;  that  none  of  the 
false  statements  were  made  by  Bell  personally  or  by  his  authority  ; 
that  the  brokers  had  authority  to  issue  a  prospectus,  but  no  au- 
thority to  include  in  it  statements  which  wore  fraudulent ;  and 
that  Bell  derived  no  benefit  from  the  money  raised  by  the  deben- 
tures. Held,  by  Cockburn,  C.  J.,  Bramwell,  and  Brett,  L.  JJ., 
(Cotton,  L.  J.,  dissenting),  affirming  the  judgment  of  the  Exche- 
quer Division,  that  the  defendant  Bell  was  not  liable.  By  Cock- 
burn,  C.  J.,  and  Brett,  L.  J.,  on  the  ground  that  though  a  party 
as  director,  to  the  receipt  of  money,  the  defendant,  Bell,  was  not 
aware  of  the  falsehood  of  the  statements  contained  in  the  pro- 
spectus, and  derived  no  personal  benefit  from  the  receipt  of  the 
money.  By  Bramwell,  L.  J.,  that  the  defendant,  Bell,  had  been 
guilty  of  no  moral  fraud,  and  not  being  the  principal  of  the  brok- 
ers, could  not  be  held  to  have  impliedly  undertaken  for  the  ab- 
sence of  fraud  in  them  in  issuing  the  prospectus.  Cotton,  L.  J., 
held,  in  dissenting  from  the  other  judges,  that  the  defendant,  Bell, 
was  liable  in  an  action  to  the  plaintiff,  for  it  was  his  duty  as  di- 
rector to  ascertain  whether  the  statements  in  the  prospectus  were 
true  or  false.* 


»  Weir  t>.  Baraett,  3  Ex.  Div.  238. 
The  judges  in  the  Exchequer  Division 
(Kelly,  C.  B.,  Pollock  and  Huddleston, 


BB.),  whose  decision  was  sustained  in 
respect  to  Bell  by  the  Court  of  /■ — ^], 
held  unanimously  that  the  brokers  were 


ii 

i 

It 

! 

1 

r.i 

1   i; 

;  i; 

T'l 

''li 
iiili 

612 


COMMENTARIES  ON  SALES. 


[book  II. 


The  plaintiffs  instructed  a  broker  to  re-insure  an  overdue  ship. 
Whilst  acting  for  the  plaintiffs,  the  broker  received  information 


really  not  the  agents  of  the  directors,  but 
of  the  company,  the  directors  being  inter- 
vening agents  ;  that  the  repayment  of  the 
moneys  to  Barnett  and  Baldwin,  though 
in  some  sense  consequent  uiwu,  had  no 
necessary  connection  with,  the  fraudu- 
lent statements  in  the  prospectus ;  that 
Barnett  and  Baldwin  were  not  the  prin- 
cipals of  the  brokers,  so  as  to  bring  the 
former  within  the  rule  that  a  principal 
is  answerable  where  he  iias  received  a 
beneht  from  the  fraud  of  an  agent  within 
the  scope  of  his  authority,  and,  therefore, 
that  the  plaintiffs  could  not  recover  in 
their  action  against  any  of  the  defendants, 
among  whom  were  Barnett  and  Baldwin. 
Ibid.  3  Ex.  Div.  32.  The  appeal  to  the 
Court  of  Appeal,  was  only  in  resi>ect  to 
the  defendant  Hell.  The  judges  of  the 
Court  of  Appeal,  as  to  the  question  of  the 
liability  of  tiie  company,  were  of  opinion 
with  the  court  below  that  the  company 
would  have  been  liable  for  the  fraud.  And 
had  the  appeal  been  as  to  the  judgment 
in  favor  of  Barnett  and  Baldwin,  Cock- 
burn,  C.  J.,  and  Brett,  L.  J.,  with  Cotton, 
L.  J.,  would  have  reversed  the  judgment 
of  the  Excheipier  Division  witii  resjiect  to 
them.  Cockburn,  C.  J.,  in  delivering  the 
.judgment  of  iiimself  and  Brett,  L.  J.,  on 
these  two  jioints,  said:  "Tlie  Court  of 
Exchcipier  Division  gave  judgment  iu 
fpvcr  of  the  defenilants,  on  the  ground 
that  the  brokers,  in  issuing  the  prospec- 
tus, had  acted  as  the  agents  not  of  the 
defendants,  but  of  the  company  ;  that  the 
directors  had  been  merely  the  olKcers  and 
agents  of  the  company  in  carrying  into 
effect  the  resolution  of  the  company  that 
debentures  should  be  issued  ;  and  in  doing 
what  was  necessary  for  that  puri)ose,  inter 
alia  in  directing  that  a  prospectus  should 
be  prepared  ard  [mblished,  had  been  in 
no  sense  principals;  conseipientiy  that  the 
rule,  that  a  [principal  wlio  derives  benetit 
from  a  fraud  commivted  by  his  agent  m 
the  course  of  his  employment  becomes 
liabl"  to  a  ]tarty  injured  by  the  fraud,  has 
here  no  application,  though  upon  the  au- 
thority of  Barwick  v.  English  Joint  Stock 
Bank  (L.  K.  2  Ex.  259)  the  fraud  in  ques- 
tion would  have  made  the  company  liable 
hail  the  action  been  brougiit  against  them. 
1  concur  iu  the  view  that  the  defendants, 
in  what  they  did,  were  acting  as  the  agents 
ot  the  com|>any,  and  not  as  principals,  and 
therefore  that  they  woultl  not  be  liable, 
generally  speaking,  for  misrepresentations 
made  without  tlieir  authority  by  persons 
employed  by  them  on  behalf  of  the  com- 
pany, and  who  in  such  employment  were 
acting,  not  aa  their  agents,  but  as  the 


agents  of  the  company.     But  the  court 
below  appear  to  have  overlooked  a  cir- 
cumstance   which,    as   it   seems    to    me, 
makes  all   the  difference  ;   namely,   that, 
with  the  exception  of  the  defendant  Bell, 
all  the  defendants,  though  not  parties  to 
the  issuing  of  the  prospectus  as  fraudu- 
lently framed,  yet,  knowing  that  it  had 
been  issued,  and  with  the  knowledge  of 
its  fraudulent  character  which  their  per- 
fect acquaintance  with  the  affairs  of  the 
company  must  have  given  them,  not  only 
allowed  the  plaiutiti'  and  otiiers  to  ad- 
vance  their  money  on  the   faith  of  the 
false  representations  contained  in  it,  and 
by  receiving  the  money  became  jtarties  to 
the  fraud,  but,  on  their  own  authority, 
applied    a    considerable    portion    of    the 
money  so   received    to   the   discharge  of 
their  own  pecuniary  claims  on  the  com- 
pany, —  claims  which  the  company  had  no 
other  means  wliatever  of  satisfying.    Even 
the  defendant  Barnett,  who  left  England 
in  August,  1S73,  and  did  not  return  till 
1874,  and  who  was  ignorant  of  all  that 
was  done  in  the  interval,  inclusive  even 
of  the  fact  of  the  payment  of  the  amount 
due  to  him  from  the  company,  the  money 
having  been  psiid  to  his  agci'ts  in  his  ab- 
sence, having  retained  the  money  when 
the  facts  came  to  his  knowledge,  stands 
on  the  same  footing  with  the  rest.     Now, 
I  take  it  to  be  undoubted  law  that,  if  an 
agent,  in  the  course  of  his  employment, 
commits    a    fraud    upon    another    party, 
whereby  damage  ensues  to  the  latter,  he 
will  be  liable  to  the  party  wronged,  though 
his  principal  would  be  so  likewise.     Tiie 
caso  of  Henderson  v.  Lacon  (L.  R.  ^  Ei). 
249)  proceeded  on  this  i)rincii)le.     And  in 
Cullen  V.  Thompson's  Truslues  (4  Macc[. 
424),  Lord  Westl)ury  says  :    'All  persons 
concerned  in  the  commission  of  a  fraud 
are  to  be  treated  as  principals.     No  [tarty 
can  be  permitted  to  excuse  himself  on  tlm 
ground  that  he  acted  as  the  agent  or  ser- 
vant of  another.'     A  Jortiori,  this  would 
be  so  where  the  a-'ent    himself   derives 
benefit  from  the  fraud.     The  presen;  case 
differs,  it  is  true,  in  this,  that  here  the 
det'endaiits,  being  the  agents  of  the  com- 
pany, em[)!oyed  sub-a.;;i'nt3  to  publish  tiie 
prospectus,    but   were   no   parties   to  the 
fraudulent    statements    contained    in    it, 
such   statements   having    been   [tubllslu'd 
by  the  sub-agents  without  their  autliority 
or  knowledge.     But  havii.g,  with  the  ex- 
ception of   the   defendant    Bell,    bei  oiip' 
aware    of    those    statements,   and    biini,' 
also  aware  of  their  falsehood,  they  were 
parties  to  the  issuing  of  the  debentures, 
and  applied  a  considjrable  portion  of  the 


PART  VIII.] 


AGENCY. 


613 


material  to  the  risk,  but  did  not  communicate  it  to  them,  and  the 
plaintiffs  effected  a  re-insurance  for  jB800,  through  the  broker's 
London  agents.  Afterwards  the  plaintiffs  effected  a  re-insurance 
for  £700,  lost  or  not  lost,  through  another  broker.  The  ship  had 
in  fact  been  lost  some  days  before  the  plaintiffs  tried  to  re-insure, 
but  neither  the  plaintiffs  nor  the  last-named  broker  knew  it,  and 
both  he  and  the  plaintiffs  acted  throughout  in  good  faith.  The 
House  of  Lords  held,^  reversing  the  judgment  of  the  Court  of 
Appeal,  and  restoring  the  judgment  of  Day,  J.,  that  the  knowl- 
edge of  the  first  broker  was  not  the  knowledge  of  the  plaintiffs, 
and  that  the  plaintiffs  were  entitled  to  recover  upon  the  policy 
for  £700.2 

proceeds  to  the  satisfaction  of  their  own 
claims  on  the  company.     Now,  I  appre- 
hend that  where  an  agent  employs  a  sub- 
agent,  and  the  latter,  in  the  course  of  his 
employment,  is  guilty  of  fraud  or  misrep- 
resenUition,  and  the  agent,  with  knowl- 
edge   of   the    fraud,    derives   a    material 
benefit  from  it,  the  case  becomes  analo- 
gous to  that  of  a  principal  who  profits  by 
the  frxud  of  his  agent,  the  prin'-iple  being 
that  he  who  profits  by  the  f...ud  of  one 
who  is  acting  by  his  authority,  though 
committed  without  his  authority,  adopts 
the  act  of  tlie  agent,  and  becomes  respon- 
sible to  the  party  who  lias  been  imposed 
upon,  and  has  sustained  damage  by  rea- 
son of  it.     If,  therefore,  the  case  of  the 
defendant  Bell,  with  which  alone  we  have 
to  deal,  as  it  is  oidy  against  the  decision 
of  the  court  below  in  his  favor  tiiat  the 
present    appeal    has    been   brought,    had 
Wn  undistinguishable  from  that  of  the 
other  defendants,  I  should  not  have  felt 
warranted  in  affirming  the  decision.     But 
his  case  differs  from  that  of  the  o'.her  de- 
fendants in  two  most  impo'tant  particu- 
lars.     First,   that   thougli  party  to  tli.) 
receipt  of  the  plaintilFs  :rioney,  he  do.?n 
not  appear  to  have  been  at  that  time  ai;- 
((uainted  with  the  real  state  of  the  ';om- 
pany's  affairs,  and  thus  aware  of  tlic  false- 
liocd  cf  the  statements  contained  in  tiio 
jjrospectus ;    sccondhj,    that  none   of  the 
nionov   actually  ca.iie   into   his  pocket." 
Weirr.  Bell,  3  Ex.  Div.  at  p.  247  ft  scq. 
See  Swift  V.  Winterbotham,  L.  H.  8  Q.  B. 
244  •    Swift  t>.  Jewsbury,   L.  K.  "  Q.  B. 
312  ;  Western  Bank  of  Scotland  i'.  Addie, 
L.  K.   1  Sc    :;   I),  145;    Mackay  y.  Com- 
niercial  E  '"■•  of  New  Brunswick,  L.  R. 
5  P.  C.  412 ;  Reese  Liver  Silver  Mining 
Co.  V.  Smith,  L.  R.  4  H.  L.  79 ;    Bavley 
I'.  Manchester,  &c.  Ry.  Co.,  L.  R,  7  C.  P. 
415  r  Directors,  &c.  of  Central  Ry.  Co.  v. 
Ksch,  L.  R.  2  H.  L.  113  ;   Henderson  v. 
Laoon,  L.  R.  5  Kq.  249,  261;  Land  Credit 
Co.  of  Ireland  v.   Fermoy,  L.  R.  5  Ch. 
763  ;  Sands  v.  Child,  3  Lev.  351;  Bennett 


V.  Bayes,  5  H.  &  N.  391 ;  Cullen  v.  Thomp- 
son, 4  Mac(].  424  ;  Mersey  Docks  Co.  v. 
Gibbs,  L.  R.  1  H.  L.  127;  Wilde  v.  (iib- 
son,  1  H.  L.  Cas.  Glo;  Ne'v  Brunswick  & 
Canada  Ry.  Co.  i'.  Connybeare,  9  H.  L. 
Cas.  711;  National  Exchange  Co.  i".  Drew, 
2  Macci.  124;  Davidson  i'.  Tulloch,  3  Macq. 
783  ;  Brady  v.  Tod,  9  C.  B.  N.  s.  592 ; 
Peek  V.  Gurney,  L.  R.  6  H.  L.  392;  Ew- 
bank  v.  Nuttii.g,  7  C.  B.  797. 

1  Blackburn  i'.  Vigors,  12  App.  Cas.  531. 

2  The  following  princijiles,  as  far  as 
they  relate  to  the  duty  of  the  agent  to 
coiimninicate  all  the  facts  of  which  lie  pos- 
sesses knowledge  to  the  same  extent  as 
the  principal  would  be  Iwund  to  commu- 
nicate knowledge  which  he  himself  pos- 
sesses, to  the  other  contracting  i>arty,  is 
as  apiilicable  to  the  contract  of  sale  as  to 
the  contract  of  insurance.  "  I  can  quite 
understand,"  said  Lord  Halsburv,  L.  C. 
(Blackburn  v.  Vigors,  12  A]ip.  Cas.  536), 
"  that  when  a  man  comes  for  an  insurance 
upon  his  ship  he  may  Ik;  exjiected  to  know 
both  the  then  condition  and  the  hi.story 
ct  the  ship  he  seeks  to  instire.  If  he 
takes  means;  '-.c*  to  k:iow,  so  a.s  to  be  able 
to  make  ctniracts  of  insurance  without 
the  responsibility  of  knowledge,  tiiis  is 
fraud.  But  even  v/ithout  fr.iud,  su;;!;  as 
I  think  this  would  be,  the  owner  of  the 
ship  cannot  escape  the  neces.-.ity  of  bein^ 
acquainted  with  his  ship  an  1  its  history, 
because  he  has  committed  ti.  otl'crs  —  his 
captain,  or  his  general  agent  for  the 
management  of  Ina  shipping  business  — 
the  knowledge  which  the  underwriter  has 
a  right  to  assume  the  ovner  posses.ses 
when  he  conies  to  insure  hi.'  ship.  With 
respect  to  agency  so  liniiteu,<I  am  not 
dispo.sed  to  ditfer  with  the  pro|)osition  laid 
down  by  Cockbum,  C.  J.,  in  Poudfoot 
V.  Montefiore,  L.  R.  2  Q.  B.  Ml,  521.  A 
part  of  the  proposition  is  '  that  the  insurer 
IS  entitled  to  assume  as  the  basis  of  the 
contract  between  him  and  the  assured  that 
the  latter  will  communicate  to  him  every 
material  fact  of  which  the  assured  has,  or 


I-    . 


:.  ;!     i 


1 1 

.! 

:  i 
i 

!     1 


614 


COMMENTARIES  ON  SALES. 


[book  II. 


In  Juna,  1857,  the  defendants,  in  Indiana,  being  desirous  of 
obtaining  money,  made  their  acceptances  of  two  blank  bills  of  ex- 


ia  the  ordinary  course  of  business  ought 
to  have  kni>wlu(i<ru.'  I  think  these  lust 
are  the  cardinal  words,  and  contemphite 
such  an  agency  as  I  have  described  above. 
I  am  unable,  however,  to  see  that  tlie 
present  case  is  governed  by  any  such  prin- 
ciple. A  broker  is  employed  to  ettect  a 
particular  insurance.  While  so  employed 
he  receives  material  information.  He  docs 
not  ellect  the  insurance,  and  he  does  uot 
communicate  the  information.  How  is  it 
]>ossible  to  suggest  that  the  assured  could 
rely  upon  the  comnmnication  to  the  prin- 
cipal of  every  piece  of  information  ac- 
quired by  any  agent  through  whom  the 
assured  has  unsuccessfully  endiavored  to 
procure  an  insurance  ?  I  am  unable  to  ac- 
cept the  criticism  by  the  Master  of  the 
Rolls  [in  the  Court  of  Api)calj,  upon  the 
proposition  that  the  knowledge  of  the 
agent  is  the  knowledge  of  the  principal. 
When  the  person  is  the  agent  to  know, 
his  knowledge  does  bind  the  principal. 
Hut  in  this  case  I  think  the  agency  of  the 
broker  had  ceased  before  the  policy  sued 
upon  was  elFected.  The  principal  himselt 
and  the  broker  through  whom  the  policy 
sued  on  was  elfected  were  both  admitted 
to  be  unaciiuainted  with  any  material  fact 
which  was  not  disclosed.  I  cannot  but 
think  that  the  somewhat  vague  use  of  the 
word  'agent'  leads  to  confusion.  Some 
agents  so  far  represent  the  principnl  tluit 
in  all  respects  their  acts  and  intentions  and 
their  knowledge  iiuiji  truly  be  said  to  be  t/ie 
acts,  intentions,  and  knowledge  of  tlie  prin- 
cipal. Other  agents  may  /lavc  so  limited 
and  narrow  an  authority  both  in  fact  and 
in  common  understanding  of  their  form  of 
employment,  that  it  ivou/d  be  quite  inaccu- 
rate to  say  that  inch  an  agent's  knowledge 
or  intentions  arc  the  knowledge  or  inten- 
tions of  his  principal ;  and  whether  his 
acts  are  the  acts  of  his  principal  de- 
pciuls  upon  the  specific  authority  /w  has 
received.  In  Fitzherbert  i'.  Mather,  1  T. 
R.  12,  the  consignor  and  shipper  of  the 
goods  insured  was  the  agent  whoso  knowl- 
edge was  in  ipiestion.  In  Gladstone  v. 
King,  1  M.  &  8.  35.  the  master  of  the  ship 
was  the  agent ;  and  in  Promlfoot  v.  Mon- 
teliore,  L.  R.  2  Q.  B.  511,  the  agent  was 
the  accepted  representative  of  the  luinei- 
pal,  ill  effect,  trading  and  acting  for  him  in 
Smyrna,  the  owner  himself  carrying  on 
business  in  Mandiester.  And  though  the 
decision  in  Ilugglcs  v.  General  Insurance 
Co.,  12  Wheat.  408,  before  the  Supreme 
Court  of  the  United  States,  may  not  be 
ver"  satisfactory  in  what  they  held  ui  ;1p" 
tht.  circumstances  of  that  cose  to  be  .ae 
relation  between  the  captain  of  :he  ship 


and  his  owners,  the  principle  upon  which 
that  case  was  decided  was  the  supposed 
termination  of  the  agency  between  them. 
Where  the  employment  of  the  agent  is 
such  that  in  respect  of  the  particular  mat- 
ter in  question  he  really  does  re]>resent  the 
principal,  the  formula  that  the  knowli:dge 
of  the  agent  is  his  knowledge  is,  1  think, 
correct ;  but  it  is  obvious  tnat  that  form- 
ula can  only  be  applied  when  the  words 
•  agent'  and  '  principal '  are  limited  in  their 
ai>plication.  To  lay  down  as  an  abstract 
proposition  of  law,  tfiat  every  agent,  no 
matter  how  limited  t/ie  scope  of  his  agency, 
icoald  bind  every  principal  even  by  his 
acts,  is  obviously,  and  upon  the  fact  of  it, 
absurd;  and  yet  it  is  by  the  fallacious 
use  of  the  word  '  agent '  that  plausibility 
is  given  to  rciisoning  which  requires  the 
assumption  of  some  such  proposition. 
What  then  is  the  position  of  the  broker 
in  this  case,  whose  knowledge,  though 
not  communicated,  is  held  to  be  that  of 
the  principal '!  He,  certainly,  is  not  em- 
ployed to  ac(}uire  such  knowle<lge,  nor 
can  any  insurer  supjwse  that  he  has  knowl- 
edge in  the  ordinary  coui"se  of  employment 
like  the  captain  of  a  ship,  or  the  owner 
himself,  as  to  the  condition  or  history  of 
the  ship.  In  this  particular  case  tl'.e 
knowledge  was  acipiired,  not  because  he 
was  the  iigent  of  the  assured,  but  from 
the  accident  that  he  was  general  agent  Tur 
another  ix'rson.  The  reason  why,  if  he 
had  effected  the  insurance,  his  knowledge, 
unless  he  communicated  it,  would  have 
been  fatal  to  the  jwlicy,  is  because  his 
agency  was  to  ellect  an  insurance,  and  the 
authority  to  make  the  contract  drew  with 
it  all  the  necessary  powers  and  resi'jnsi- 
bilities  which  are  involved  in  sucli  an 
employment  ;  but  he  had  no  general 
agency  ;  he  had  no  other  authority  thiin 
the  authority  to  make  the  jwrticular  con- 
tract, and  his  authority  ended  before  the 
contract  sued  on  was  made.  When  it 
was  made,  no  relation  lK!tween  him  and  the 
shipowner  existed  which  made  or  eontiii- 
ue(i  him  an  agent  for  whoso  knowledge  his 
f)rmer  principal  was  responsible.  Tlun' 
was  no  material  fact  known  to  any  agent 
which  was  not  disclosed  at  the  point  of  time 
at  which  the  contract  was  made  ;  there  wis 
no  one  possessed  of  knowledge  whose  d.ity 
it  was  to  comnumicato  such  I  nowledgc" 
We  entirely  concur  in  the  rertsoniiij; 
in  the  foregoing,  which  thoro\ighly  agnis 
with  the  views  we  express,  infra  (see  Vul. 
II.,  Book  III.,  Part  I.),  in  our  diseussinn  of 
the  cases  relating  to  the  power  of  a  s'ii|  • 
master,  as  agent,  to  bind  tlie  Bhi{)o.vir  i, 
as  principal,  by  the  fraudu    ot  (ignii  q  >'f 


>^ 


PART  VIII.] 


AGENCT. 


615 


change,  in  sets  of  two  parts  each,  and  sent  them  to  their  agent, 
R.,  in  Pittsburgh,  Pennsylvania.  The  two  sets  were  left  blank 
except  that  they  were  made  in  ft. or  of  R.,  and  were  accepted  on 
their  face  by  the  defendants,  who  instructed  R.  to  fill  up  the 
blanks ;  to  procure  the  signatures  of  the  requisite  parties  as  ac- 
commodation drawers  and  iudorscrs ;  to  sell  and  negotiate  the 
bills,  as  perfected,  for  money,  and  to  remit  the  proceeds  to  the 
defendants.  In  July  following,  at  the  request  of  R.,  the  defend- 
ants sent  him  four  other  similar  blank  acceptances,  to  be  sold  and 
negotiated  by  him  in  double  sets,  the  proceeds  of  these  to  be  re- 
tained by  R.  for  his  own  use.  R.  got  the  whole  of  the  firsts  of 
exchange  and  two  of  the  seconds  of  exchange  discounted,  and  kept 
the  proceeds.  The  seconds  were  in  every  respect  completed  bills 
of  exchange,  and  they  were  discounted  by  the  plaintiiTs,  without 
any  notice  of  the  facts  or  circumstances  of  the  way  in  whicl".  R. 
held  them,  unless  the  words  "  second  of  exchange,  first  unpaid," 
could  be  held  to  have  that  import.  The  court  held,  in  an  action 
by  the  plaintiffs  on  these  two  bills,^  that  the  defendants  were  lia- 
ble on  the  following  grounds :  — 

First.  Because,  where  a  party  to  a  negotiable  instrument  in- 
trusts it  to  the  custody  of  another  not  filled  up,  whether  it  be  for 
the  purpose  to  accommodate  the  person  to  whom  it  was  intrusted, 
or  to  be  used  for  his  own  benefit,  such  negotiable  instrument  car- 
ries on  its  face  an  implied  authority  to  fill  up  the  blanks  and  i>er- 
fect  the  instrument ;  and  as  between  such  a  party  and  innocent 
third  parties,  the  person  to  whom  it  was  so  intrusted  must  be 
deemed  tliC  agent  of  the  party  who  committed  such  instrument  to 
his  ci.  r  v-ly  ;  or,  in  other  words,  it  is  the  act  of  the  principal,  and 
he  if  'iOiiu'l  by  it.^ 

a  ':  'I  I'f  ..  :iincj,  where  the  goods  have  not 


bee  vi .  •  •  i'  The  sentences  which  we 
have  aU'  ■  itBli''i>u'il  are  so  peculiiirly 
ap[)licat)le  ,  on  'ti,^thyiliseussioiiofthat 
subject,  ihnt.  iVc  re-nuote  them  :  "  Some 
agents  so  far  represent  the  i»riiiciiinl  that 
ill  all  respects  tlu'ir  act.s  ami  intentions 
and  their  knowledfje  may  truly  be  said  to 
he  the  acts,  intentions,  and  knowledge  of 
the  principal.  Other  agents  iray  have  so 
limited  and  narrow  an  authority  both  in 
fnct  and  in  eoinmon  understanding  of 
their  form  of  employment,  that  it  vould 
be  lite  iuac('urate  to  say  that  such  an 
(IV..!'  .1  knowledge  or  intentions  are  tho 
k.K  ii'ilp-  or  intentions  of  his  principal ; 
air'  y,''  i:;'^r  h')^  acts  are  tho  acts  of  his 
priiu:i|ii  .  depemls  upon  the  specific  au- 
thority he  has  received .olayilown 

as  an  abstract  proposition  of  law  tlnit 
every  agent,  no  matter  how  limited  the 
scope  0?   his  agency,  would  bind  every 


principal,  even  by  his  acts,  is  obviously, 
and  upon  the  face  of  it,  absurd."  Hhick- 
burn  V.  Vigors,  12  Apji.  (us.  jip.  637, 
638, /)(■/■  Lord  ClKinctllor  llalsbury.  See 
tlie  case  in  the  court  below,  Blackburn  v. 
Vigors,  17  Q.  i;.  Div.  r>.")3,  Lord  Esher, 
M.  !{.,  dissenting  from  the  reversed  judg- 
ment of  Lindley  and  Lojies,  L.  .IJ.  And 
see  Williams  v.  North  Chiiui  Ins.  Co.,  1 
C.  P.  Div.  7.17  ;  Fitziicrbert  v.  Mather,  1 
T.  R.  VI  ;  (iladstone  v.  King,  1  M.  &  S. 
35  ;  Ruggles  v.  ticncral  Inti'rcst  Ins.  Co., 
4  Mason,  74  ;  12  Wheat.  4<pe  ;  Stewart  v. 
Dunlop,  4  Bro.  I'.  C  483;  I'roudfoot  f. 
Monteliore,  L.  H.  2  Q.  B.  .Ill  ;  Strii)ley 
V.  Imperial  Marine  Ins.  Co.,  1  t^.  \\.  Div. 
607;  Wyllie  v.  I'ollar,  32  L.  .1.  Ch.  782  ; 
Lynch  v.  Dunsford,  14  Kast,  494. 

1  The  Bank  of  I'itisburgh  v.  Neal,  22 
How.  96. 

a  Cioodman  v.  Simonds,  20  How.  361  ; 
Violet  V.  ration,  6  Cranch,  142. 


i 


mm 


'i.! 


616 


COMMENTARIES  ON  SALES. 


[book  II. 


Secondly.  Because  a  bond  fide  holder  of  a  negotiable  instru- 
ment, for  a  valuable  consideration,  without  notice  of  the  facts 
which  impeach  its  validity  between  the  antecedent  parties,  if  he 
takes  it  under  an  indorsement  made  before  the  same  becomes  due, 
holds  the  title  unaffected  by  these  facts,  and  may  recover  thereon 
although,  as  between  the  antecedent  parties,  the  transaction  may 
be  without  any  legal  validity.* 

Thirdly.  The  question  as  to  the  effect  of  the  words,  "  second 
of  exchange,  first  unpaid,"  is  one  of  law  for  the  court,  and  not  of 
fact  for  the  jury  ;  *  and 

Fourthly.  As  either  of  the  set  of  bills  of  exchange  may  be  pre- 
sented for  acceptance,  and  if  not  accepted  a  right  of  action  pres- 
ently arises,  upon  due  notice,  against  all  the  antecedent  parties  to 
the  bill,  without  any  other  of  the  set  being  presented  ;  the  fact  of 
the  words,  "  sec  ,nl  of  exchange,  first  unpaid,"  having  been  on  the 
two  parts  negoti>  r  is  no  notice  to  the  bond  fide  purchasers 

that  the  firsts  had  i  oeen  accepted;  which  double  acceptance 
is  improper,"  and,  if  merely  the  result  of  enabling  a  third  person 
to  do  a  wrong,  comes  within  the  rule  applicable  to  cases  of  agency, 
that  where  one  of  two  innocent  parties  must  suffer  through  the 
fault  or  negligence  of  a  third  party,  the  loss  must  fall  on  him  who 
gave  the  credit.* 


1  Swift  V.  Tyson.  16  Peters,  15  ;  Good- 
man V.  Simond.s,  20  How.  36". 

2  Auilrews  v.  Pond,  13  Peters,  5  ; 
Fowler  v.  Bluntly,  14  Pet.  318 ;  Goodman 
V.  Sinionds,  20  How.  366. 

8  Chitty  on  Bills  (10  Am.  ed.),  155; 
Byleson  Bills,  310;  Huldsworthw.  Hunter, 
10  B.  &  C.  449  ;  Davidson  v.  Uobertson, 
3  Dow  P.  C.  223. 

*  Fitzherbert  v.  Mathew,  1  T.  R.  16, 
per  Biiller,  J.  ;  Androscoggin  Bank  v, 
Kimball,  10  Ciish.  373  ;  Montague  v. 
Perkins,  17  Jur.  557. 

Speight  V.  Gaunt,  22  Ch.  Div.  727, 
affirmed  by  the  House  of  Lords,  Ibid.  9 
Ap.  Cas.  1,  holds  that  a  t;  astee  investing 
trust  funds  is  justified  in  employing  a 
broker  to  proeure  securities  authorized  by 
the  trust  and  in  paying  the  purchase- 
money  to  the  broker,  if  he  follows  the 
nsual  and  regular  course  of  business  adopt- 
ed by  ordinary  prudent  men  in  making 
such  investment.  In  this  case  the  broker, 
who  was  eMi|)loyed  by  a  trustee  to  buy 
securities  of  municipal  corporations  author- 
ized by  the  trust,  gave  the  trustee  a 
bought  note  which  purported  to  bo  subject 
to  the  rules  of  the  London  Stock  Ex- 
change, and  obtained  the  purchase-money 
from  the  trustee  upon  the  representation 
that  it  was  payable  the  next  day,  which 
was  the  next  account  day  on  the  London 


Exchange.  The  broker  never  procured 
the  securities,  but  appropriated  the  money 
to  his  own  use  and  linally  became  insol- 
vent. Some  of  the  securities  were  procur- 
able only  from  the  corporations  direct,  and 
were  not  bought  and  sold  in  the  market, 
and  there  was  evidence  that  the  form  of 
the  bought  note  would  have  suggested  to 
some  experts  that  the  loans  were  to  be 
direct  to  the  corporations  ;  but,  as  the 
House  of  Lords  held  on  the  facts,  there 
was  nothing  calculated  to  excite  suspicion 
in  the  mind  of  the  trustee  or  of  an  oixii- 
uary  prudent  man  of  business  ;  and  such 
jMiyment  to  a  broker  was  in  accordance 
with  the  usual  course  of  business  in  pur- 
chases on  the  London  Exehaiiwe.  It  was 
therefore  held  by  the  House  of  Lords  ( Lord 
Fitzgerald  doubting)  that  the  trustee  was 
not  liable  to  the  ccntidn  qite  trust  for  the 
loss  of  the  trust  funds.  Lord  Fitzgerald, 
in  expressing  the  doubts  which  he  enter- 
tained on  the  facts  in  the  case,  accepted  it 
as  settled  law  that  although  a  trustee  can- 
not delegate  to  others  the  cf»nrulence  re- 
posed in  himself,  nevertheless  he  may  in 
the  administration  of  the  trust  fund  avail 
himself  of  the  agency  of  third  parties,  such 
as  bankers,  brokers,  and  others,  if  he  does 
so  from  a  moral  necessity  or  in  the  regulai' 
course  of  business.  If  a  loss  to  the  trust 
fund  shoulu  be  occasioned  thereby,  the 


PART  VIII.] 


AGENCY, 


617 


proeur- 
ect,  ami 
iiiiiiket, 
form  of 
ustud  to 
to  be 
as  the 
there 
uspieion 
m  oixii- 
nd  such 
;ordance 
in  puv- 
It  was 
l.s{Lord 
stee  was 
for  the 
zgerald, 
le  enter- 
lopted  it 
iteo  can- 
Biice  re- 
may  in 
il  avail 
I'S,  surh 
he  docs 
regular 
ho  trust 
,hv,  the 


nd 


S.,  being  employed  by  the  respondent  to  carry  on  his  business, 
credited  the  respondent  in  account  with  the  appellant  with  the  sum 
of  5800  tacls,  which  he  falsely  represented  to  have  been  advanced  in 
the  ordinary  course  of  business  on  certain  goods  intended  for  ship- 
ment. He  then  drew  a  bill  in  the  name  of  the  respondent's  lirm 
on  the  appellants  for  the  balance  of  account,  and  liaving  received 
the  proceeds  of  such  bill,  including  the  said  5800  tacls,  appropri- 
ated them  to  his  own  use.  On  a  special  case  submitting  whether 
the  respondent  was  liable  to  the  aj)pellants  in  the  suid  sum,  with 
interest  from  date  of  receipt  by  S.,  it  was  held  by  the  Privy  Coun- 
cil, that  the  proceeds  of  the  bill  having  been  received  as  aforesaid 
by  S.,  acting  throughout  within  the  scope  of  his  authority,  be- 
longed to  the  respondent ;  and  that  he  having  thus  been  paid 
5800  taels  without  consideration,  the  appellants  were  entitled  to 
recover  back  the  sarae.^ 

In  an  action  to  recover  damages  for  a  fraudulent  misrepresenta- 
tion, L.  ordered  the  defendant  to  buy  rupee  paper  for  him.  The 
defendant  sold  rupee  paper  of  his  own  to  L,,  whilst  he  fraudulently 


trustee  will  bo  exonerated  unless  sojne 
uegligouce  or  default  of  his  has  led  to  that 
result.     Ibid,  at  p.  29. 

A  trustee  or  executor  who  conducts 
the  business  of  the  trust  in  the  same 
manner  that  nu  ordinary  prudent  man  of 
business  would  conduct  his  own,  does 
all  that  is  required  of  him,  and  beyond 
that  there  is  no  liability  or  oblitration 
on  the  trustee.  Li  re  JBird,  L.  It.  16 
Eq.  203  ;  Job  v.  Job,  6  Ch.  Div.  502  ; 
Jones  V.  Lewis,  2  Ves.  Sen.  240  :  Eju  parte 
Beluhier,  Amb.  218  ;  Bacon  v.  Bacon,  5 
Ves.  331  ;  Joy  v,  Campbell,  1  Sch.  k  Lef. 
328,  ^i\  ;  Clough  i;.  Burd,  3  M.  &  Cr, 
490,  497  ;  Castle  v.  Warland,  32  Beav. 
660.  But  where  the  trustee  has  not  taken 
proper  precautions  which  he  might  have 
taken  against  being  deceived,  then  the 
rule  has  lieen  ajiplied  that,  as  between  two 
innocent  parties,  one  of  whom  must  suli'er 
from  the  wrongful  acts  of  the  broker,  the 
loss  must  full  on  the  trustee  who  emjiloyud 
the  dishonest  broker.  Bostock  v.  Flover, 
k  R.  1  Va\.  26  :  Su  ton  v.  Wildere,  \j.  R. 
12  Eq.  373  ;  Hopgood  v.  Parkin,  L.  R.  11 
Eq,  74.  And  see  Matthews  i'.  Brise,  6 
Beav.  239  ;  Mendes  v.  Guedalla,  2  J.  & 
H.  259  ;  Langford  v.  Gascoyne,  11  Ves. 
333  ;  Lord  Shijibrook  v.  Lord  H  inch  brook, 
11  Ves.  2,')2  ;  16  Ves.  477  ;  Underwood  v. 
Stevens,  1  Mer.  712  ;  Hanbury  v.  Kirk- 
land,  3  Sim.  265.  The  law  is  well  laid 
down  bv  T'ord  Cottenhani,  in  Clough  v. 
Burd,  3  M.  &  Cr.  496  .  "  It  will  be  found 
to  be  the  result  of  all  the  best  authorities 
upon  the  subject,  that,  although  a  p(!rsonal 
representative,  acting  strictly  within  the 


line  of  his  duty,  and  exercising  reasonable 
care  and  diligence,  will  not  be  res])oiisible 
for  the  failure  or  depreciation  of  tlie  fund 
in  which  any  part  of  the  estate  may  be  in- 
vested, or  for  the  insolvency  or  misconduct 
of  any  pereon  who  may  have  possessed  it, 
yet,  if  that  line  of  duty  be  not  strictly 
pursued,  anil  any  part  of  the  pi-operty  be 
invested  by  such  jiersonal  re[)reseiitative 
in  funds  or  ujwn  securities  not  authorized, 
or  be  put  within  the  control  of  ])ersons 
who  ought  not  to  be  intrusted  with  it, 
and  a  loss  be  thereby  eventually  sustained, 
such  personal  representative  will  be  liable 
to  malce  it  good,  however  unexpected  the 
result,  however  little  likely  to  arise  from 
the  course  adopted,  and  however  free  such 
conduct  may  have  been  from  any  improjier 
motive."  Walker  i;.  Synionds,  3  Swanst. 
1  ;  Wilkins  v.  Hagg,  8  Jur.  n.  s.  25  ; 
Chambers  t>.  Minchin,  7  Ves.  196  ;  Greg- 
ory V.  Gregory,  2  Y.  &  C.  Kx.  313; 
Booth  V.  Booth,  1  Beav.  l'J5  ;  Kgberl  v. 
Butter,  21  Beav.  660  ;  Tliompsim  v.  Finch, 
22  Beftv.  316  ;  Cowell  v.  GutcdUibe,  27 
Beav.  568;  Brice  «.  Stokes,  11  Vis.  219; 
Oliver  v.  Covert,  8  I'rice,  166  ;  In  re 
Chertsey  Market,  6  Trice,  279  ;  Attorney- 
General  V.  Holland,  2  Y.  &  C.  Cli.  699  ; 
Williams  v.  Nixon,  2  Beav.  472  ;  Black- 
wood I'.  BorrowCs,  2  Con.  &  L.  477. 

1  Swire  v,  Francis,  3  Apn.  Gas.  106. 
This  case  approvetl  and  followed  Bar- 
wick  V.  The  English  Joint-Stock  Bunk, 
L.  R.  2  Ex.  2r)9,  and  Mackay  v.  The 
Commercial  Bank  of  New  Brunswick, 
L.  R.  6  P.  C.  412. 


III     ■         i 


1^! 


618 


COMMENTARIES  ON  SALES. 


[book  II. 


led  L.  to  believe  that  it  belonged  to  third  persons.  The  value  of 
rupee  paper  afterwards  became  considerably  less,  but  L.  held,  for 
many  months,  what  the  defendant  had  sold  to  him,  and  ulti- 
mately I'c-sold  it  at  a  loss  of  ,£43,000.  On  the  trial,  judgment 
was  ordered  to  be  entered  for  the  whole  amount.  The  Court  of 
Appeal,  on  motion  for  a  new  trial,  held,  distinguishing  B»'ookman 
V.  Rothschild,^  that  the  measure  of  damages  was  not  the  amount 
of  the  loss  ultimately  sustained  by  L.,  but  the  difference  between 
the  price  which  he  paid  for  the  rupee  paper  and  the  price  which 
he  would  have  received  if  he  had  resold  it  in  the  market  forthwith 
after  purchasing  it.^ 

Whce  a  secret  gratuity  is  given  to  an  agent  with  the  intention 
of  influencing  his  mind  in  favor  of  the  giver  of  the  gratuity,  and 
the  agent,  on  subsequently  entering  into  such  a  contract  with  such 
giver  on  behalf  of  his  principal,  is  actually  influenced  by  the  gra- 


1  3  Sim.  153;  on  appeal,.')  Bli.  N.  s.  165. 

»  Waddell  V.  Blockey,  4  Q.  B.  Div,  678. 
The  following  is  the  principle  of  the  deci- 
sion, by  Braniwcll,  L.  J. :  "  When  a  person 
has  been  defrauded  in  buying  a  chattel, 
and  is  in  a  condition  to  restore  it,  he  is  en- 
titled upon  discovering  the  fraud  to  receive 
back  the  price,  provided  he  offers  to  return 
the  chattel.  It  may  be  that  if  the  plaintiff, 
»vho  represents  the  insolvent  buyer,  could 
have  tendered  the  rupee  paper  to  the  de- 
fendant, he  might  liave  recovered  back  the 
whole  price,  ...  If  there  could  have  been 
a  restUidio  in  irUcgrum,  possibly  the  plain- 
tiff in  this  action  might  have  recovered  in 
full.  The  question,  however,  is  reduced 
to  this :  What  damages  is  the  plaintiff 
entitled  to  ?  How  much  worse  off  is  the 
estate  which  he  represents  owing  to  the 
bargain  into  which  the  insolvent  entered  ? 
We  may  suppose  the  insolvent  to  have 
been  an  intentional  and  willing  buyer. 
In  fact  he  bought  the  rupee  paper  ;  he  ac- 
cepted it  and  used  it;  that  is,  sold  it. 
Therefore  the  plaintiff  cannot  tender^it  to 
the  defendant,  and  the  ([uestion  is  one  of 
damages.  The  right  mode  of  dealing  with 
the  damages  is  to  see  what  it  would  have 
cost  the  insolvent  to  get  out  of  the  situa- 
tion ;  that  is,  what  is  the  price  at^which 
he  could  have  sold  the  pajier  ?  Suppose 
that  a  horse  has  been  sold  with  a  fraudu- 
lent warranty,  and  sui)pose  the  horse  is 
resold  with  knowledge  of  the  defect,  which 
had  been  fniuduli-ntly  concealed,  the  dam- 
ages to  be  recovered  would  be  the  differ- 
ence in  the  pric<'s  obtained  at  the  two 
sales.  Here  the  question  is  :  What  could 
the  insolvent  have  obtained  if  he  had  re- 
sold the  rupee  paper  which  he  had  been 
induced  to  purchase  by  the  fraud  of  the 
defendant  ?    It  was  for  the  insolvent  to 


consider  whether  he  would  sell  it  or  retain 
it.  The  retention  of  it  was  his  own  vol- 
untary act.  If  he  elected  to  remain  owner 
after  the  rupee  paper  began  to  fall  in  \  ice 
his  loss  was  not  owing  simply  to  his  luiv- 
iiig  purchased  it,  but  to  his  having  pur- 
chased it  and  retained  it.  When  I  say 
that  his  loss  is  to  be  estimated  by  the 
price  which  he  might  have  obtained  upon 
a  resale,  I  mean  that  he  is  entitled  to  in- 
clude tlie  commissions  which  he  would 
have  to  pay  upon  the  sale  and  the  resale  ; 
further,  he  would  not  have  been  bound 
to  resell  hastily  and  unadvisedly,  but  he 
ought  to  have  time  allowed  to  him  to  as- 
certain what  his  loss  really  was.  Upon 
these  principles  the  amount  must  be  calcu- 
lated at  which  the  damages  are  to  stand." 
When  an  agent  is  employed  to  buy,  it  is  a 
•fraud  if  ho  sells  property  of  his  own  to  a 
principal  who  is  under  the  belief  that  he  is 
dealing  with  a  third  party  ;  the  agent  occu- 
pying a  fiduciary  relation.  Upon  the  dis- 
covery of  the  fraud  the  princii)al  may  annul 
the  contract  and  recover  his  damages. 
Brookman  v.  Rothschild,  3  Sim.  153  ;  5 
Bli.  N.  s.  165;  Gillct  V.  Peppercorne,  3 
Beav.  78;  Kimber  v.  Barber,  L.  R.  8  Ch.  56. 
As  to  the  measure  of  damages,  see  David- 
son 1'.  Tulloch,  3  Macq.  783,  790.  In  this 
c<ise  it  was  laiil  down  by  Lord  Campbell, 
where  the  question  came  np  with  refer- 
ence to  a  sale  of  stock,  that  the  proper 
mode  of  measuring  the  damages  is  to  as- 
certain the  difference  between  the  pur- 
chase-money and  what  would  have  been  a 
iMr  price  to  be  paid  for  the  shares  at  the 
time  of  the  purchase.  This  accords  with 
the  holding  in  Waddell  v.  Blockcy,  4  Q.  B. 
Div.  678.  See  Twycross  v.  Grant,  2  C.  P. 
Div.  469;  Mullett  v.  Mason,  L.  R.  1  C.  P. 
659. 


PART  VIII.] 


AGENCY. 


619 


tiiity  in  assenting  to  stipulations  prejudicial  to  the  interests  of  his 
principal,  although  the  gratuity  was  not  given  directly  with  rela- 
tion to  such  particular  contract,  the  transaction  is  fraudulent  as 
against  the  principal,  and  the  contract  is  voidable  at  his  option.^ 

In  Smith  v,  Sorby,^  which  was  an  action  for  breach  of  an  agree- 
ment by  the  defendant  to  supply  the  plaintiff  with  coals,  the  de- 
fendant's case  was,  that  there  was  a  secrw  agreement  for  payment 
by  the  plaintiff  to  the  defendant's  agent  of  a  commission  which 
was  intended  to  influence  the  agent's  mind  to  the  prejudice  of  his 
employer,  in  favor  of  the  plaintiff ;  and  that,  in  fact,  it  did  influ- 
ence his  mind  in  entering  into  the  agreement  for  the  defendant 
with  the  plaintiff.  At  the  trial,  Pollock,  B.,  before  whom  the 
trial  took  place,  directed  the  jury  that  the  giving  of  a  commission 
to  an  agent,  though  improper,  was  not  necessarily  fraudulent,  <vnd 
that,  in  order  to  vitiate  the  contract  on  the  ground  of  fraud,  there 
must  have  been  an  intention  on  the  part  of  the  party  offering  the 
commission  to  induce  the  agent  in  entering  into  the  contract  to 
betray  his  principal's  interests,  and  the  mind  of  the  agent  must, 
in  fact,  have  been  corruptly  affected  by  such  inducement.  This 
ruling  not  having  been  considered  satisfactory,  a  new  trial  was 
ordered. 

The  question  was  again  considered  in  Harrington  v.  Graving 
Dock  Co.2  There,  the  defendants  contracted  to  pay  the  plaintiffs 
a  commission  for  superintending  repairs  to  be  executed  by  them 
on  certain  ships  belonging  to  the  Great  Eastern  Ry.  Co.  The 
plaintiff,  at  the  time  of  such  contract  being  made,  was  in  a  posi- 
tion of  trust  in  relation  to  the  railway  company,  having  been  em- 
ployed by  them  as  an  engineer  to  advise  them  as  to  the  repairs, 
and  the  contract  between  defendants  and  plainty^  was  made  in 
part  in  consideration  of  a  promise  that  the  plaintiff  would  use  his 
influence  with  the  railway  company  to  induce  them  to  accept  the 
defendant's  tender  for  the  repairs  of  the  ships.  The  jury  found 
that  the  contract,  thongli  calculated  to  bias  Iho  mind  of  the  plain- 
tiff, had  not,  in  fact,  done  so,  and  that  he  had  not  in  consequence 
thereof  given  less  beneficial  advice  to  the  company  as  to  the  de- 
fendant's tender  than  he  would  otherwise  have  done.  The  court 
dealt  with  the  question  left  undecided  in  Smith  v.  Sorby  ;  ^  holding 
that  th(?  plaiMtiff  could  not  maintain  an  action  for  commission 
under  the  contract,  on  the  ground  that,  even  although  the  plain- 
tiff had  not  been  induced  to  act  corruptly,  the  consideration  for 
the  contract  was  corrupt.* 

said 


»  Smitli  V.  Sorby,  8  Q.  B.  Div.  552,  n. 

2  3  Q.  B.  Div.  649. 

8  lUd.  652. 

*  Cockbuni,  C.  J.,  in  his  judgment, 


"  I  will  assume,  for  the  purposes  of 
argument,  that  the  agnteinent  aid  not  in- 
fluence the  mind  of  the  plaintiff  so  as  to 
induce  him  to  do  anything  dishonest  to» 


::,ji3 


'  I-  ■  (■• 


mm 


620 


COMMENTARIES  ON  SALES. 


[book  II. 


Panama  &  South  Pacific  Telegraph  Co.  v.  India  Rubber,  Gutta 
Percha  &  Telegraph  Works  Co.^  is  another  important  case  illus- 
trative of  the  duty  which  an  agent  owes  to  his  principal.  It  was 
a  case  where  a  telegraph  work  company  agreed  with  a  telegraph 
cable  company  to  lay  a  cable,  the  cable  to  be  paid  fur  by  a  sum 
payable  when  the  cable  was  begun,  and  by  twelve  instalments 
payable  on  certificates  %  the  cable  company's  engineer,  who  was 
named  in  the  contract.  Shortly  afterwards  the  engineer,  who 
was  engaged  to  lay  other  cables  for  the  works  company,  agreed 
with  them  to  lay  this  cable  also  for  a  sum  of  money  to  be  paid  to 
him  by  instalments  payable  by  the  works  company  when  they  re- 
ceived the  instalments  from  the  cable  company.  The  cable  com- 
pany paid  the  works  company  ^£40,000  as  a  first  payment  on 
Feb.  4,  1870,  soon  after  the  contract  was  made.  On  Nov.  16, 
1870,  the  works  company  claimed  j£90,000  as  a  further  payment, 
but  the  cable  company  refused  to  recognize  their  liability.  In 
September,  1871,  the  cable  company's  engineer  resigned  his  po- 
sition, soon  after  which  the  cable  company  discovered  that  he 
had  entered  into  the  sub-contract  'ith  the  works  company.  They 
filed  their  bill  against  the  defendants,  praying  that  the  contract 
might  be  set  aside  and  delivered  up  to  be  cancelled ;  the  works 
company  be  decreed  to  repay  the  plaintiffs  the  £40,000;  and 
that  the  engineer  be  decreed  to  repay  j£600  commission  which 
the  cable  company  had  paid  him.  The  argument  was  most  elab- 
orate, lasting  for  several  days.  The  Court  of  Appeal,  Sir  W.  M. 
Jamt'  and  Sir  G.  Mellish,  L.  JJ,,  differed  on  one  point  of  princi- 
ple in  the  case ;  the  former  taking  it  to  be  clear  that  any  surrep- 
titious dealing  between  one  principal  and  the  agent  of  the  other 
principal  is  a  ^aud  on  such  other  principal,  cognizable  in  equity. 
"  That,"  he  says,  "  I  take  to  be  a  clear  proposition,  and  1  take  it, 
according  to  my  view,  to  be  equally  clear  that  the  defrauded  prin- 
cipal, if  he  comes  in  time,  is  entitled,  at  his  option,  to  have  the 


wards  his  employers,  the  Great  Eastern 
Railway  Company.  I  entertain  no  doubt, 
however,  that  when  a  bribe  is  given,  or  a 
proniise  of  a  bribe  is  made,  to  a  person  in 
the  employ  of  another  by  some  one  who 
has  contracted,  or  is  about  to  contract, 
with  the  employer  with  a  view  to  inducing 
the  person  employed  to  act  otherwise  than 
with  loyalty  and  lidelity  to  his  employer, 
the  agreement  is  a  coiTupt  one,  and  is  not 
enforceable  at  law,  whatever  theactual  effect 
produced  on  the  mind  of  the  person  bribed 
may  be.  The  tendency  of  such  an  agree- 
ment as  this  must  be  to  bias  the  mind  of 
the  agent  or  other  person  employed,  and  to 
lead  him  to  act  disloyally  to  his  principal. 
It  is  intended  by  the  party  who  promises 


the  bribe  to  have  that  effect,  and  the  other 
party  knows  such  is  his  intention.  Such 
a  bargain  is  obviously  cornipt.  It  would 
plainly  be  a  contravention  of  the  maxim 
e  turpi  ca^lsd  non  oritur  actio,  and  most 
mischievous,  to  hold  that  a  man  could 
come  into  a  court  of  law  to  enforce  such 
a  bargain  on  the  grount  that  he  was  not 
in  fact  corrupted.  It  is  quite  immaterial 
that  the  employer  was  not  in  fact  dam- 
aged. It  is  sufficient  that  the  considera- 
tion upon  which  the  promise  was  made 
was  intended  to  be  a  corrupt  one."  Har- 
rington V.  Graving  Dock  Co.,  3  Q.  B. 
Div.  549,  551. 

»  L.  R.  10  Ch.  Ap.  515. 


PAET  VIII.] 


AGENCY. 


621 


contract  rescinded ;  or,  if  he  electa  not  to  have  it  rescinded,  to 
have  such  other  adequate'  relief  as  the  court  may  think  right  to 
give  him."  Mellish,  L.  J.,  did  not  acquiesce  in  this,  on  principle, 
rather  too  wide  proposition.  He  said  with  reference  to  it :  "I  am 
not  quite  certain  that  I  go  the  full  length  to  which  the  Lord  Jus- 
tice has  gone  in  thinking  that,  because  a  person  has  been  a  party 
to  a  fraudulent  act  of  this  kind  after  the  contract  was  made,  the 
mere  fact  of  his  having  been  guilty  of  such  fraudulent  conduct, 
auppomig  that  a  full  remedy  for  the  fraud  could  be  otherwise 
obtaineu,  would  entitle  the  other  party  to  say, '  Because  you  acted 
fraudulently,  therefore  1  will  have  nothing  more  to  do  with  you, 
and  T  will  not  carry  out  my  contract  with  you.'  I  am  not  aware 
of  any  authority  which  has  gone  to  that  extent.  As  far  as  I 
know,  the  consequence  of  fraud  is,  that  the  court  will  see  that 
the  party  defrauded  obtains,  as  far  as  can  be  given, /u/Z  redress 
for  the  fraud.^'' 

However,  they  both  agreed  that,  under  the  circumstances  of 
this  case,  as  a  full  redress  for  the  fraud,  that  the  agreement 
between  the  works  company  and  the  engineer  was  a  fraud  which 
entitled  the  cable  company  to  have  their  contract  with  the  works 
company  rescinded,  and  to  receive  back  the  moneys  (the  £40,000 
and  the  £600)  which  they  had  paid  under  that  contract.  And 
it  was  so  decreed.* 

Kimberly  v.  Dick^  is  a  case  very  similar  in  principle  to  Pan- 
ama &  South  Pacific  Telegraph  Company  v.  India  Rul)ber,  Gutta 
Percha  &  Telegraph  Works  Company.^  In  this  case  an  archi- 
tect entered  into  an  undertaking  with  his  employer  that  a  house 
should  he  erected  for  a  sum  not  exceeding  £15,000,  including 
architect's  commission  and  all  expenses,  and  engaged  the  services 
of  a  builder,  who,  without  being  informed  of  the  undertaking^, 
gave  an  estimate  based  on  quantities  given  him  by  the  architect, 
and  entered  into  a  contract  with  the  employer  for  the  comi)letion 
of  the  work  from  the  architect's  plans,  and  under  his  superin- 
tendence, for  £13,690,  with  power  for  the  architect  to  order  extra 
works,  and  with  a  clause  providing  that  all  questions  between 
the  parties  should  be  settled  by  the  award  of  the  architect.    On  a 


i:;]' 


'i'\ 


i\ 


1  See,  further,  Central  Ry.  Co.  of  Vene- 
zuela V.  Kiscb,  L.  R.  2  H.  L.  99  ;  Imj.e- 
rial  Mercantile  Credit  Assoc,  v.  Coleman, 
L.  R.  6  H.  L.  189;  Dunne  v.  English,  L.  R. 
18  Eq.  524  ;  Lindsay  Petroleum  Co.  v. 
Hard,  L.  R.  .5  P.  C.  221 ;  Randall  v. 
Errington,  10  Ves.  423;  Onions  v.  Cohen, 
2  H.  &  M.  361  ;  Kemp  w.  Rose,  1  Giff. 
268;  Kimberley  v.  Dick,  L.  R.  13  Ea.  1 ; 
Pawley  v.  TumbuU,  3  Giflf.  7C  ;  In  re  Mar- 


seilles Escension  Ry.  Co.,  L.  R.  7Ch.  161; 
Ex  parte  .Tames,  8  Ves.  337  ;  Atwood  v. 
Small,  6  01.  &  F.  232,  Flaiicht  v.  Colbnrn, 
8  ning.  14  ;  Palmer  r  Tcnii.Ie,  9  A.  &  E. 
608;  Keys  v.  Harwood,  '2  C.  B.  905;  Mil- 
ner  v.  Field,  6  Ex.  829 ;  Blair  v.  Bromley, 
2  Ph.  354 ;  Jervis  «>.  Berridge,  L.  R.  8  Ch. 
361. 

2  L.  R.  13  Eq.  1. 

•  L.  R  10  Ch.  Ap.  616. 


I  ;:i 


622 


COMMENTARIES  ON  SALES. 


[book  II. 


suit  by  tho  builder,  claiming  to  bo  entitled  to  bo  paid  by  the  em- 
ployer for  all  quantities  executed  by  him  beyond  those  included 
in  his  estimate,  and  for  extra  works :  it  was  held,  that,  on  the 
evidence,  the  architect  was  the  agent  of  the  employer ,  that,  his 
undertaking  having  been  concealed  from  the  builder,  the  arbitra- 
tion clause  in  tho  contract  could  not  be  enforced ;  and  that  the 
plaintiff  was  entitled  to  an  account  for  what  was  duo  to  him  for 
any  works  executed  by  him  under  tho  architect's  direction  not 
included  in  the  contract,  and  for  any  works  so  executed  under  the 
contract  the  price  for  which  was  not  therein  included,  and  for 
any  variations  made  under  tho  architect's  direction  of  works  in- 
cluded in  tho  contract.^ 


6.  Ratification  of  Acts  op  Agents. 

The  general  rule  as  to  the  effect  of  a  ratification  by  one,  of  the 
unauthorized  act  of  another  respecting  the  property  of  the  former, 
is  well  settled.  The  ratification  operates  upon  tho  act  ratified 
precisely  as  though  authority  to  do  the  act  had  been  previously 


1  Thb  existence  of  any  circumstance  cal- 
culiittid  to  bias  the  mind  of  an  arbitrator 
unknown  to  either  of  the  parties  who  liave 
submitted  to  his  decision  is  a  sulKciunt 

f  round  for  the  interference  of  the  court.  In 
[emp  V.  Rose,  1  GitF.  258,  where  a  builder 
by  his  contract  bound  himself  to  abide  by 
the  decision  and  certificates  of  an  architect 
aa  to  the  amounts  to  be  paid  for  the  work, 
not  knowing  that  the  architect  had  given 
an  assurance  to  the  employer  that  the  cost 
of  the  building  should  not  exceed  a  cer- 
tain specified  amount,  although  he  refused 
to  guarantee  that  amount,  the  court  did 
not  consider  the  decision  of  the  architect 
made  under  such  a  bias  as  binding,  but 
gave  directions  so  as  to  ascertain  under 
the  authority  of  the  court  how  much  re- 
mained justly  due  to  the  plaintitf.  l.\ 
such  a  case,  whether,  in  fact,  the  circum- 
stance had  any  operation  in  the  mind  of 
the  arbitrator  must,  for  the  most  part,  be 
incapable  of  evidence,  and  may  remain 
unknown  to  every  human  being  ;  perhaps 
even  unknown  to  himself.  It  is  enough 
that  such  a  circumstance  did  exist.  The 
House  of  Lords  considered  this  question 
in  Dimes  v.  Grand  Junction  Canal,  3  H. 
L.  Caa.  759,  where  the  question  arose  in  a 
case  where  the  Lonl  Chancellor  was  the 
owner  of  shares  in  a  company,  and  it  was 
held  that  he  was  disqualified,  on  the 
ground  of  interest,  from  sitting  as  judge  in 
a  cause  in  a  matter  largely  involving  the 
interests  of  the  company  ;  that  hia  decree 
was  therefore  voidable,  and  must  be  set 
aside.    See  The  Queen  v.  The  Commis- 


sioners for  the  Paving  of  Cheltenham,  1 
Q.  B.  467  ;  Sir  John  Egerton  v.  Earl  of 
Derby,  12  Co.  114;  The  Mayor  of  Here- 
ford's Case,  1  Salk.  396  ;  Brookes  v.  The 
Earl  of  Rivers,  Hardres,  503  ;  Bridgmaii 
V.  Holt,  Shower,  111  ;  The  King  v.  Yar- 
pole,  4  T.  R.  71  ;  Great  f'harte  r.  Kenning- 
ton,  2  Str.  1173  ;  The  King  v.  The  Justices 
of  Essex,  6  M.  &  Sel.  513 ;  Bonham's 
Case,  Hob.  85,  87  ;  City  of  London  v. 
Wood,  8  Co.  118.  But,  in  Ranger  v.  Tho 
Great  Western  Ry.  Co.,  5  H.  L.  Cas.  71, 
where  cases  of  dilference  were  agreed  to 
be  left  to  the  engineer  of  the  company, 
it  was  held  by  the  House  of  Lords  that 
the  agreement  in  effect  meant  that  thase 
questions  were  to  be  left  to  the  company 
itself,  by  ."^s  agent,  who  was  the  engineer, 
and,  thereft  -e,  the  fact  that  the  engineer 
was  a  shareholder  in  the  company  did  not 
affect  the  validity  of  the  agreement. 

Owing  to  the  fiduciary  relations  exist- 
ing between  them,  an  agent  for  sale,  who 
takes  an  interest  in  a  purchase  negotiated 
by  himself,  is  bound  to  disclose  to  hi.s 
principal  the  exact  nature  of  his  interest ; 
and  it  is  not  enough  merely  to  disclose 
that  he  has  an  interest,  or  to  make  state- 
ments such  as  would  put  the  principal  on 
inquiry.  Connected  with  this  principle  it 
was  held  in  Dunne  v.  English,  L.  R.  18 
Eq.  524,  tha  in  such  a  case,  the  burden 
of  proving  that  a  full  disclosure  was  made 
lies  on  the  agent,  and  was  not  discharged 
merely  by  the  agent  swearing  that  he  did 
so,  where  his  evidence  was  contradicted 
by  the  plaintiff,  and  not  corroborated. 


PART  VIII.] 


AQENCT. 


628 


given,'  except  wi?erc  the  rights  of  third  parties  have  intervened  be- 
tween th     act  and  the  ratification.^    The  retroactive  efficacy  of 


'  This  principle  was  acted  on  in  Mac- 
lean V.  Dunn,  4  Uing.  722,  where  it  was 
htilil  that  it'  A.,  witliout  authority,  iniikes 
a  contract  in  writing  for  the  ]iurcha8e  of 
goods  by  B.,  and  U.  sub8e((ueutly  ratilies 
the  contract,  such  ratiHcation  renders  A. 
an  agent  sulHciently  authorized  to  niaico 
the  contract  under  tlie  statute  of  frauds. 
It  was  contended  that  to  take  the  case 
out  of  the  statute  the  agent  should  have 
had  his  authority  at  the  time  the  contract 
was  entered  into.  Best,  C.  J.,  in  dealing 
with  this  contention,  said  :  "  If  such  had 
been  the  intention  of  the  legislature  it 
would  have  been  expressed  more  clearly; 
but  the  statute  only  reijuires  some  note 
or  memorandum  in  writing  to  be  signed 
by  the  party  to  be  charged,  or  his  agent 
thereunto  lawfully  authorized,  leaving  us 
to  the  rules  of  common  law  as  to  the 
mode  in  which  the  agent  is  to  receive  his 
authority.  Now  in  all  other  cases  a  sub- 
sequent sanction  is  considered  the  same 
thing  in  effect  as  assent  at  the  time.  Om- 
nis  ratihabitio  rdrotrahitur  ct  mandato 
ccquiparalur;  and  in  n>y  opinion  the  sub- 
se((uent  sanction  of  a  contract,  signed  by 
an  agent,  takes  it  out  of  the  operation  of 
the  statute  more  satisfactorily  than  an 
authority  given  beforeliand.  Where  the 
authority  is  given  beforehand  the  party 
must  trust  to  his  agent ;  if  it  be  given 
subsequently  to  the  contract  the  party 
knows  that  all  has  been  done  according 
to  his  wishes."  Soames  v.  Spencer,  1  D. 
&  Ry.  32.  In  Foster  v.  Bates,  12  M.  & 
W.  226,  a  sale  was  made  by  a  person  who 
intended  to  act  as  agent  for  the  one,  who- 
ever he  might  be,  who  should  legally  rep- 
resent the  estate  of  the  intestate,  to  whom 
the  goods  solil  belonged,  and  the  sale  was 
subsequently  ratilied  by  the  administrator; 
and  it  was  held  that  when  one  means  to 
act  as  agent  for  another,  a  subsequent  rati- 
tication  by  the  other  is  always  e(iuivalent 
to  a  prior  command ;  nor  is  it  any  objec- 
tion that  the  intended  principal  was  un- 
known at  the  time  to  the  person  who  in- 
tended to  be  the  agent.  Hull  v.  Pickers- 
gill,  1  Bro.  &  n.  282.  See  Muskett  v. 
Drummond,  10  B.  &  C.  157;  Hagedorn  v. 
Oliverson,  2  M.  &  Sel.  485  ;  Nicholls  v. 
lie  Feuvre,  2  Bing.  N.  C.  81 ;  Bloxam  v. 
Sanders,  4  B.  &  C.  941;  Bailey  v.  Culver- 
well,  8  B.  &  C.  448  ;  Buron  v.  Denman, 

2  Ex.  167;  Whitehead  v.  Taylor,  10  A.  & 
E.  210  ;  Fitchet  v.  Adams,  2  Str.  1128  ; 
Wolfr».  Horncastle,  1  B.  &  P.  317;  Routh 
V.  Thompson,  11  East,  274;  Wilson  v. 
Tumman,  6  M.  &  G.  236;  Wilson  v.  Barker, 
4  B.  &  Ad.  614  ;  Goodtitle  t;.  Woodward, 

3  B.  &  Aid.  689.    An  act  done  for  another, 


not  assuming  to  act  for  himself,  but  for 
such  other  person,  though  without  any 
precedent  authority  whatever,  Ix'comes  the 
act  of  the  principal,  if  subsequently  rati- 
fied by  him  ;  but  where  A.  does  an  act  na 
agent  fur  B.,  without  any  communication 
with  C.,  C.  cannot  afterwards  by  adopting 
that  act  make  A.  his  agent,  and  thereby 
incur  any  liability  or  take  any  benefit  un- 
der the  act  of  A.  Wilson  v.  Tumman, 
6  M.  &  G.  236.  The  same  distinction  is 
taken  in  the  Year  Book,  7  H.  4,  fo.  34, 
pi.  1,  that  if  the  bailiti'  took  the  heriot, 
claiming  property  in  it  himself,  the  subse- 
quent agreement  of  the  lord  would  not 
amount  to  a  ratiHcation  of  his  authority 
as  bailiti  at  the  time  ;  but  if  he  took  it  at 
the  time  as  bailiff  of  the  lord,  the  subse- 
quent ratitication  by  the  lord  made  him 
bailiff  at  the  time.  It  is  similarly  laid 
down  by  Alderson,  C.  J.,  in  Godbolt, 
109  b :  "  If  one  have  cause  to  distrain  my 
goods,  and  a  stranger,  of  his  own  wrong, 
without  any  warrant  or  authority  given 
him  by  the  other,  takes  my  goods,  not  as 
bailiff  or  servant  to  the  other,  and  I  bring 
an  action  of  trespass  against  him,  can  he 
excuse  himself  by  saying  that  he  did  it  as 
his  bailitf  or  servant  i  Can  he  also  father 
his  misdemeanor  upon  another  /  He  can- 
not, for  once  he  was  a  trespasser,  and  his 
intent  was  manifest."  So,  as  to  actions 
ex  contractu,  "The  nde  as  to  ratitication 
applies  only  to  the  acts  of  one  who  pro- 
fesses to  act  as  the  agent  of  a  pei'son  who 
afterwards  ratifies."     Vere   v.  Ashby,   10 

B.  &  C.  298,  per  Parke,  J. ;  Saundei-son  v. 
Griffiths,  5  B.  &  C.  909  ;  Anon.,  2  Leon. 
196;  Fuller  &  Trininieirs  Case, /6.  210; 
Hull  V.  Pickersgill,  1  Bro.  &  B.  282 ; 
Governor,  &c.  of  Bristol  v.  Wait,  3  N.  & 
M.  359,  368,  369. 

1  C.  &  T.,  merchants  at  Liverpool,  sent 
orders  to  I.,  a  merchant  at  New  York,  to 
purchase  for  them  certain  goods,  which 
were  accordingly  shi|ijH'd  by  1.  in  five  ves- 
sels Iwund  to  Liverpool,  and  consigned  to 

C.  &  T.,  who,  after  the  receipt  of  goods 
by  one  of  the  vessels,  stopped  pe"T)!ent  on 
April  7,  1846.  I.  had  drawn  'liis  .or  the 
goods,  partly  on  (.'.  &  T.  an,;  ,  uly  on 
B.  &  Co.,  with  whom  C.  &  T.  had  deal- 
ings. B.  &  Co.,  who  were  merchants  at 
Liverpool,  and  who  also  had  a  house  of 
business  in  New  York,  purchased  there 
several  of  the  bills,  which  were  drawn  at 
sixty  days'  sight,  and  were  dated,  some 
on  March  28,  and  the  rest  on  March  30. 
On  May  8  a  fiat  in  bankruptcy  issued 
against  C.  &  T.  The  four  other  ves- 
sels, arrived  at  Liverpool,  respectively  on 
May  3,  5,  7,  and  9 ;  and  immediately  on 


624 


COMMENTARIES  ON  SALES. 


[book  II. 


the  ratification  is  subject  to  this  qualification.  The  intervening 
rights  uf  third  persons  cannot  be  defeated  by  the  ratification.  In 
other  words,  it  is  essential  that  the  party  ratifying  should  be  able 
not  merely  to  do  the  act  ratified  at  the  time  the  act  was  done,  but 
also  at  the  time  the  ratification  was  mado.^    The  ratification  is 


the  arrival  of  each,  and  while  tho  Irann- 
Uiu  of  the  goods  on  boanl  continued, 
B.  &  Co.,  on  behalf  of  I.,  gave  notice  to 
the  m»iiter  and  consignees  of  each  8hi|), 
claiming  to  stop  the  goods  in  transitu. 
H.  &  Co.  wore  not  the  general  agents  of 
I.,  nor  had  they  reo"iv»'d  from  him  any 
authority  to  rnuico  tliis  stot>-<agn.  On  May 
11  the  Hssignoos  of  U.  &  T.  ni.:de  a  formal 
demand  of  the  good.s  from  the  m^ister  and 
consignees  of  each  of  the  four  sliips,  at  the 
same  time  tendering  tliu  freight ;  but  they 
refused  '^o  deliver  them,  and  on  the  same 
day  delirereil  the  whole  to  \i.  &  Co.  On 
the  ii"Xl  day  tlio  onsigneus  made  a  formal 
dem.ind  of  t!ie  good.s  from  B.  &  Co.,  but 
thoy  refused  to  deliver  them  up,  claiming 
title  under  the  stoppage  in  transitu.  On 
April  '28>  I.  heard  at  flew  York  that  C.  & 
T.  had  stopped  payment ;  and  on  the  next 
day  he  executed  a  power  of  attorney  to  H. 
of  Liverpool  authorising  him  to  stop  the 

foods  in  tramitu.  Tliis  was  received  by 
[.  on  lVI:iy  l;{,  and  hu  on  that  day  adopted 
anil  contirmed  tho  previous  stoppage  by  B. 
&  Co.  I.  ..fterwards  adopted  and  ratified 
all  that  had  been  done  both  by  H.  and  B. 
&  Co.  In  trover  by  tho  assignees  of  C.  & 
T.  against  B.  &  Co.  it  was  held,  first,  that 
there  could  be  no  valid  stoppage  in  trans- 
itu after  the  formal  demand  of  the  goods 
by  the  assignee  on  May  11,  and  the  sub- 
sequent delivery  of  thera  to  the  defend- 
ants ;  and,  secondly,  that  the  ratification 
of  the  stoppage's  by  I.  "fter  the  conversion 
by  the  defendants  had  not  the  effect  of  al- 
tering retrospectively  tho  ownership  of  the 
goods,  which  had  already  vested  in  the 
plaintiffs.  Bird  v.  Brown,  4  Ex.  786. 
See  Right  v.  Cuttrell,  5  East,  491 ;  Doe  v. 
Walters,  10  B.  &  C.  626;  Waring  v.  Dew- 
berry, 1  Str.  97 ;  Butter  &  Baker's  Case, 
3  Rep.  29  6;  Whitehead  v.  Anderson,  9 
M.  &  W.  518  ;  Nicholls  v.  he  Feuvre,  2 
Bing.  N.  C.  81;  Bailey  r.  Culverwell,  8  B. 
&  C.  448  ;  Lord  Audley's  Case,  Cro.  Eliz. 
661 ;  Moore,  4,i7  ;  Podger's  Case,  9  Rep. 
104  a.  Tlie  same  doctrine  was  held  in 
Leber  v.  Kauffelt,  5  W.  &  S,  446,  that  al- 
tLough  a  reiitti'iti  will  not  be  allowed  to 
take  place  so  iis  to  devest  the  right  of  a 
third  person,  or  to  take  away  those  of  the 
intestate,  according  to  the  maxim,  hi  fie- 
tione  juris  semper  consistit  equitas  (Ken- 
rick  V.  Burges,  Moo.  125;  Murray  v.  East 
India  Co.,  5  B.  &  Aid.  204;  Pratt  v. 


Swaine,  8  B.  &  C.  28');  Parsons  v.  Mayes- 
den,  Freem.  Ifi2 ;  Mountlord  v.  liibson, 
4  East,  446),  yet  tliat  generally  the  rela- 
tion back  will  bo  admitted  for  the  purpose 
of  supporting  the  rights  of  the  intestate, 
and  of  ratifying  acts  for  llie  Ixmetit  of  his 
estate,  and  giving  a  remedy  where  otlier- 
wise  there  would  be  ii»iie.  See  Wood  v. 
McCain,  7  Ala.  800,  800. 

»  Cook  V.  Tullis,    18  Wall.    332.     A 

fierson  may  ratify  an  action  brought  in 
lis  name,  but  without  liis  knowledge  or 
authority,  by  another  professing  to  act  as 
his  iigent  and  on  his  behalf.  Therefore, 
v.'iiere  the  holder  of  a  bill  of  exchange, 
without  the  knowledge  or  authority  of  the 
plaintiff,  indorsed  ami  delivered  it  to  an 
attorney  for  the  plaintitf,  and  in  order  that 
an  action  might  be  brouglit  n|)on  it  in 
his  name ;  .and  the  plaintiff,  after  action 
brought,  ratified  the  act,  it  was  held  that 
the  subsecpiont  ratification  was  equivalent 
to  a  prior  authority,  and  that  the  plaintiff 
had  a  valid  title  to  sue  on  the  bi  An- 
cona  V.  Marks,  7  H.  &  N.  686.  fica- 

tion  after  action  brought  is  eqi)  to 

a  prior  conimanii.  Uicilmrdsi...  xhe 
Countess  of  Oxford,  2  F.  &  F.  449  ;  Hull 
V.  I'ickersgill,  1  Hrod.  &  IJ.  282.  To  en- 
title a  person  to  sue  upon  a  contract  it 
must  be  shown  that  he  himself  made  it, 
or  that  it  was  made  on  his  behalf  by  an 
agent  authorized  to  act  for  him  at  the 
time,  or  whose  act  has  been  subsequently 
ratified  and  ai!opted  by  him  ;  and  the  per- 
son for  whom  the  agent  professes  tc  act 
must  be  capable  of  lieing  ascertained  at 
the  time.  Watson  ti.  Swann,  11  C.  B. 
N.  s.  756.  It  is  not  necessary  that  he 
shouhl  be  named  ;  but  there  must  be  such 
a  description  of  him  as  shall  amount  to  a 
reasonable  designation  of  the  person  in- 
tended to  be  bound  by  the  contract.  Thus 
S.,  an  insurance  broker  at  Hull,  being  in- 
structed to  effect  an  open  policy  for  £5000 
for  the  plaintiff,  against  jettison  only,  su'  • 
ject  to  declaration  thereafter,  and  being 
unable  to  do  so,  declared  certain  deck 
CArgo  shipped  for  Ostend  on  board  one  of 
the  plaintifTs  vessels  on  the  back  of  a  gen- 
eral policy  which  he  had  previously  effected 
for  himself  "  upon  any  kind  of  goods  and 
merchandise  as  interest  might  appear,"  and 
got  it  initialed  by  the  underwriters.  A 
loss  having  If^ppened,  it  was  held  that  it 
was  not  comi)etent  to  the  plaintiff  to  main- 


PART  VIII.] 


AOENCT. 


625 


the  first  proceeding  by  which  the  party  ratifying  becomes  a  party 
to  the  transaction,  and  he  cannot  acquire  or  confer  the  rights  re- 
sulting from  that  transaction,  unless  in  a  position  to  enter  directly 
upon  a  similar  transaction  himself.  Thus,  if  an  individual  pre- 
tending to  be  the  agent  of  anotiier  should  enter  into  a  contract 
for  the  sale  of  the  property  of  his  assumed  principal,  it  would  bo 
impossible  for  the  latter  to  ratify  the  contract,  if,  between  its  date 
and  the  attempted  ratification,  he  had  himself  disposed  of  the 
property,  lie  could  not  defeat  the  intermediate  sale  made  by 
himself,  and  impart  validity  to  the  sale  made  by  the  pretended 
agent,  for  his  power  over  the  property  or  to  contract  for  its  sule 
would  be  gone.'  On  the  same  principle,  liens  by  attachment  or 
judgment  upon  the  property  of  a  debtor,  are  not  affected  by  his 
subsequent  ratification  of  a  previous  unauthorized  transfer  of  the 
property." 

A  ratification  is,  in  its  effect  upon  the  act  of  an  agent,  equiva- 
lent to  the  possession  bv  him  of  a  previous  authority.  It  operates 
upon  the  act  ratified  in  the  same  manner  as  though  the  authority 
of  the  agent  to  do  the  act  existed  originally.  It  follows  that  a 
ratification  can  only  be  made  when  the  party  ratifying  possesses 
the  power  to  perform  the  act  ratified.^  To  hold  otherwise  would 
be  equivalent  to  saying  that  an  agent  not  having  the  power  to  do 


act 

at 

B. 

he 
buch 
I  to  a 

in- 
I'lius 

in- 
SOOO 

]eing 
leek 

\e  of 
i»en- 

■ctcil 

laiiil 
land 
A 
lit  it 
Iain- 


tain  an  action  against  the  underwriters 
upon  this  policy,  the  contract  not  having 
been  made  by  him  or  on  his  behalf  at  the 
time.  Ibid.  Seel'owlesv.  Junes,  11  M.  & 
W.  10.  The  same  principle  was  applied  in 
In  re  Empress  Engineering  Co.,  16  Ch. 
Div.  125.  There  A.  and  B.  agreed  with 
C.  on  behalf  of  a  company  intended  to  be 
formed,  that  A.  and  B.  should  sell  and  the 
comfmny  buy  a  certain  business,  and  it 
was  a  term  of  the  agreement  that  sixty 
guineas  should  be  paid  to  J.  and  P.,  so- 
licitors, for  their  ex{ienses  and  charges  in 
registering  the  company.  The  memoran- 
dum of  association  adopted  this  agree- 
ment, and  the  directors  subsequently  rati- 
fied it.  An  order  having  been  made  for 
winding  up  the  cotnpuny,  J.  and  P.  claimed 
to  prove  for  tlie  sixty  guineas.  It  was  held 
that  the  claim  must  be  disallowed,  for  that 
the  contract  between  A.  and  B.  and  C, 
having  been  entered  into  before  the  com- 
pany was  in  existence,  could  not  by  mere 
ratification  be  made  binding  on  the  com- 
pany. In  this  case  Jessel,  M.  R.,  said  (at 
p.  128):  "The  contract  between  the  pro- 
inoters  and  the  so-called  agent  for  the 
company  of  course  was  not  a  contract 
binding  upon  the  company,  for  the  uom- 

Cny  had  then  no  existence ;  nor  could  it 
come  binding  on  the  company  by  rati- 


fication, because  it  has  been  decided,  and, 
as  it  appears  to  me,  well  decided,  that 
there  cannot  in  law  be  an  effectual  ratifi- 
cation of  a  contract  which  could  not  have 
been  made  binding  on  the  ratifier  at  the 
time  it  was  made,  because  the  rpcifier  waa 
not  then  in  existence."  Melhado  v.  Porto 
Allegre,  &c.  Ry.  Co.,  L.  U.  9  C.  P.  503  ; 
In  re  Hereford  &  South  Wales  Waggon, 
&c.  Co.,  2  Ch.  Div.  621,  are  in  accord, 
that  a  company  cannot  ratify  a  contract 
before  it  came  into  existence,  —  cannot 
ratify  a  nullity.  And  see  Kelner  v.  Bax- 
ter, L.  R.  2  C.  r .  174  ;  Gunn  v.  London  & 
Lancashire  Fire  Ins.  Co.,  12  C.  B.  n.  h. 
694 ;  Payne  v.  The  New  South  Wales,  &c. 
Co.,  10  Ex.  283  ;  Hutchinson  v.  Surrey, 
&c.  Assoc.,  10  Ex.  283.  If  the  company 
adopts  the  act  it  can  only  be  by  way  of  a 
new  agreement ;  for  they  cannot  be  bound 
by  a  contract  made  by  the  promoters  be- 
fore the  company  was  recistered.     Ibid. 

•  McCracken  v.  City  of  San  Francisco, 
16  Cal.  624. 

2  Cook  «;,  Tullis,  18  Wall.  332;  Taylor 
V.  Robinson,  14  Cal.  396 ;  Wood  v.  Mc- 
Cain, 7  Ak.  806;  Bird  v.  Brown,  4  Ex. 
''69. 

«  Marsh  v.  Fulton  County,  10  Wall. 
676,  684. 


TOL.  I. 


40 


G26 


COMMENTARIES  ON  SALES. 


[book  II. 


a  particular  act  for  his  principal,  could  give  validity  to  such  act 
by  its  indirect  recognition.^ 

Where  an  agent,  acting,  as  he  supposes,  for  the  best  interest  of 
his  distant  pi  incipal,  hat,,  under  the  circumstances,  gone  beyond 
the  letter  of  his  instructions,  if  the  principal,  when  informed  by 
the  agent  of  \v^hat  has  been  done,  does  not  choose  to  affirm  the 
act,  it  is  his  duty  to  give  immediate  information  of  his  repudia- 
tion. He  cannot,  by  holding  his  peace,  and  apparent  acquiescence, 
have  the  benefit  of  the  contract  if  it  should  turn  out  to  be  profit- 
able, and  retain  a  right  to  repudiate  it  if  otherwise.  The  princi- 
pal must,  therefore,  when  informed,  reject  within  a  reasonable 
time  or  be  deemed  to  adopt  by  acquiescence.  The  rule  is  said  to 
be  a  stringent  one  upon  tlie  principal  in  such  cases,  where,  with 
full  knowledge  of  the  acts  of  the  agent,  he  receives  a  benefit  from 
them,  and  fails  to  repudiate  the  acts." 

The  case  of  Law  v.  Cross  ^  was  a  purchase  of  coal  by  the  plain- 
tiff for  the  defendant,  where  the  agent,  intending  to  act  for  the 
benefit  of  his  principal,  exceeded  his  instructions.    The  coal  was 


1  McCracken'v.  City  of  San  Francisco, 
16  Cal.  62  i.  Si-e  Despatch  Line  of  Pack- 
eta  V.  Hollamy  Munuf.  Co.,  12  N.  H.  232; 
Pratt  V.  Town  of  Swaiiton,  15  Vt.  147; 
Chamljorlin  r.  The  Inhabitants  of  Dover, 
13  Me.  466  The  defendant,  a  naval  com- 
mander, stationed  on  the  coast  of  Africa, 
with,  instructions  to  suppress  the  slave 
trade,  was  recpiested  by  the  Governor  of 
Sierra  Leone  to  obtain  the  liberation  of 
two  British  subjects  detained  as  slaves  at 
the  Gallini's  by  the  son  of  the  kin<?  of  that 
country,  and  in  ett'cotinf;  that  ooject  to 
use  forje  if  necessary.  He  accordingly 
proceeded  to  the  vrallinas  with  an  armed 
force,  and  having  ."auded  at  Dombjcorro 
took  military  possession  of  a  barracoon  be- 
lon^irtg  to  the  plaintiff,  who  was  a  Span- 
iard carrying  on  the  slave  trade  at  the 
Oallinas.  He  then  communicated  with 
tb"  ''.ing  of  the  country,  and  the  two 
British  subjects  having  been  released,  the 
defendant  concluded  a  treaty  for  the  aboli- 
tion of  the  slave  trade  in  that  country. 
In  execution  of  the  tn;aty  the  defendant 
fired  the  barracoons  of  the  plaintiff,  and 
carried  away  his  slav's  to  Sierra  Leone, 
where  th'-y  wero  liberated.  Some  of  the 
■jdaintitrs  goads  used  in  the  slave  tnu^e 
wei-e  claimed  by  the  king  as  forfeited,  and 
delivered  iip  to  him;  other  goods  were  de- 
stroyed. These  proceedings  having  been 
communicated  to  the  Lords  of  the  Admi- 
ralty and  the  Secretaries  of  State  for  the 
foreign  and  colonial  departments,  they  re- 
spectively by  letter  adopted  and  ratified  the 
act  of  the  defendant.  It  v/as  held  that  the 
ratification  of  the  defendant's  act  by  the 


ministers  of  state  was  equivalent  to  a  prior 
command,  and  rendered  it  an  act  of  state, 
for  which  the  Crown  was  alone  responsi- 
ble. .Buron  v.  Denman,  2  Ex.  167.  The 
effect  of  this  ratification  by  the  Crown  was 
to  render  the  defendant's  act  an  act  of 
state,  in  respect  of  which  no  action  can 
be  maintained.  Elphinstone  v.  Bedree- 
chund,  1  Knapp,  316.  See  Lamb  v.  Mills, 
4  Mc  1.  378  ;  TreviUian  v.  Pine,  11  Mod. 
112 ;  Manby  v.  Long,  3  Lev.  107,  as 
to  ratification  of  acts  of  bailiffs,  relating 
back  to  the  time  of  the  act  done,  under 
the  maxim,  Omnis  rcUihabitu}  retrotrahi- 
tur  et  maiidato  leqtiiparatur.  The  Rajah 
of  Tanjore,  a  native  independent  sover- 
eign, but,  in  virtue  of  tn*aties,  under  the 
protection  of  the  East  India  Company, 
died  without  leaving  issue  male,  when  the 
East  India  Company,  in  the  exercise  of 
thnr  sovercigv  jiowor,  and  in  trust  for 
the  British  (jovernment,  seized  the  Kaj  of 
Tanjore,  and  the  whole  of  the  property  of 
the  deceased  Rajah,  as  an  escheat,  on  the 
ground  that  the  dignity  of  the  Raj  was 
extinct  for  want  of  a  male  heir,. and  that 
the  projwrty  of  the  late  Rajah  lapsed  to 
the  British  Government.  The  government 
having  subsequentlj  ratified  the  act,  it 
was  held  that  an  act  done  by  an  agent 
of  the  government,  though  in  excess  of 
his  authority,  being  mtitiod  and  adopted 
by  the  government,  the  ratification  was 
equivalent  to  previous  authotity.  The 
Secretary  of  State  v.  Kamachee  Bove  Sa- 
haba,  13  Moo.  P.  C.  22,  86. 

«  Hoyt  V.  Thompson,  Id  N.  Y.  218. 

1  1  Black,  533. 


PART  VIII.] 


AGENCY. 


627 


shipped  to  San  Fraucisco,  and,  on  its  arrival  there,  the  price  of 
coal  having  fallen,  the  defendant's  agent  assumed  the  power  of 
repudiating  the  contract,  and  set  up  as  a  pretence  that  thu  coal 
was  not  good.  The  coal  was  sold  for  the  benefit  of  whom  it  might 
concern,  and  was  bid  in  by  the  defendant's  agent  for  a  sum  which 
paid  the  freight  only.  The  question  of  acquiescence  having  been 
loft  to  the  jury,  they  found  in  favor  of  the  plaintiff,  and,  on  the 
principles  above  stated,  the  Supreme  Court  of  the  United  States 
affirmed  the  judgment  of  the  court  below. 

Where  it  was  claimed  that  goods  shipped  to  the  defendants, 
factors,  were  improperly  shipped,  the  goods  belor^ing  to  the  plain- 
tiffs, ihe  United  States  Supreme  Court  held,'  that  though  the 
ov^ncrs  of  the  goods  were  not  bound  by  the  contract  improperly 
made  with  reference  to  their  property,  by  the  shippers,  yet  the 
owners  could  elect,  after  being  informed  of  ihe  nature  of  the  con- 
tract, to  reject  it  or  adopt  it.  If,  with  a  full  knowledge  of  the 
facts  concerning  it,  they  ratified  ic,  they  thereby  made  themselves 
a  party  to  it,  as  much  so  as  if  the  original  agreement  had  been 
made  wifh  them.  And  if  they  ratified  it,  no  new  or  additi-^nal 
consideration  was  required  to  support  the  ratification,  because  in 
adopting  the  contract  they  accepted  with  it  the  original  consider- 
ation on  which  it  was  founded,  as  a  sufficient  considerai  ion  for 
their  adoption  of  it.* 


I  Drakely  v.  Gregg,  8  Wall.  5?42. 

3  Pearsoil  v.  Cliapiii,  44  Pa.  9  ;  Kee- 
nan  v.  HoUoway,  16  Ala.  53  ;  Wilmot  v. 
IHchardson,  6  Diier,  328.  In  Pearsoil  v. 
Chapin,  44  Pa.  9,  17,  in  answer  to  the 
contention  that  if  a  contract  is  tiilnted 
with  fraud,  it  is  incapable  of  confirination 
or  ratificf.tlon  without  a  new  contract 
founded,  ou  a  new  consideration,  the 
court  say :  "  Katification  is  in  general 
the  adoption  of  a  previously  I'ornied  con- 
tract, notwithstnnding  a  vice  that  ren- 
dered it  re!ativ(?ly  void  ;  and  by  the  very 
nature  of  the  act  of  ratification,  conlirnia- 
tion,  or  affirmance  (all  of  tliese  terms  be- 
ing used  to  express  the  same  thing),  the 
party  confirming  becomes  a  party  to  tlio 
contract ;  he  that  wa.i  not  bound  becomes 
bound  by  it,  and  entitled  to  all  the  proper 
benelits  of  it  ;  he  accepts  the  considera- 
tion of  the  contract  as  a  sufficient  con- 
sideration for  ado;)ting  it,  and  usually 
this  is  tiuite  enougli  to  support  the  ratifi- 
cation. A  mere  ratification  cannot,  of 
cou'Tie,  correct  any  defect  in  the  terms  of 
the  contiHct.  If  it  is  in  its  very  terms 
ii.ralid  for  want  of  consideration,  or  for 
any  other  defect,  a  mere  mtitication  can 
arid  nothing  to  ita  binding  force." 

If  ail  agent  to  receive  payment  of  a 


debt,  undertakes  to  compromise  and  re- 
lease it,  and  his  principal  refuses  to  ratify 
his  act  or  to  receive  the  money,  anil  gives 
notice  thereof  to  the  debtor,  and  the 
money  paid  on  the  attempted  compromise 
remains  in  the  hands  of  the  agent,  it  is  at 
the  rifsk  of  the  tlebtor.  Curtis  v.  Inner- 
arity,  6  How.  146.  If  an  agent,  A.,  who 
has  departed  from  instructions,  docs'  not 
make  his  principal  awaie  of  the  fact  of 
departure,  the  principal  cannot  be  sup- 
posed to  intend  to  ratify.  If  the  prin- 
cipal, through  another  agent,  H.,  abroad, 
ec.ept  and  sell  a  cargo  ;  ncliased  dy  A.  in 
breach  of  or<iers,  this  ,iiay  or  may  not 
amount  to  a  ratitica' ■  -ii.  But  if  B.  ac- 
cepted and  sold  the  tr.'o  in  pursuance  of 
directions  given  V)y  I'lr  principal  in  ignor- 
ance of  a  breach  of  his  orders  by  A.,  this 
i.s  not  a  ratification.  Hell  r.  Cunniiighara, 
3  Peters.  69.  An  authority  to  an  agent 
to  sell  property  does  not  empower  him  to 
depart  from  tht  law  in  mnkiiig  t!ie  title, 
and  if  he  does  so,  and  the  title  fails  for 
that  cause,  the  principal  is  not  liable  to 
refund  the  pun  hase-money.  Owi.igs  v. 
Hullf  9  PeterSj  607.  And  no  doctrine  in 
better  settled,  both  unon  nrinciple  and 
authoritv,  than  t\...  ;  that  the  ratification 
of  an  act  of  an  agent  previously  author- 


I 

I'M" 


628 


COMMENTARIES  ON  SALES. 


[book  II. 


Under  the  constitution  act  of  Queensland,  any  person  who,  being 
disqualified  by  reason  of  his  having  entered  into  a  contract  or 
agreement  for  and  on  account  of  the  public  service,  shall  presultae 
to  sit  or  vote  in  the  legislative  council  or  legislative  assembly,  is 
liable  to  the  penalty  of  JE500  for  each  offence.  In  an  action,  un- 
der this  act,  against  the  defendant,  a  member  of  the  Queensland 
Legislative  Assembly,  for  a  violation  of  the  act,  it  appeared  that 
M.  &  Co.  had,  in  1878,  "  for  and  on  behalf  of  the  owners  of  the 
ship  S.  H.,"  but  contrary  to  the  express  direction  of  the  defend- 
ant (one  of  such  owners),  concluded  a  charter-party  with  the  lo- 
cal government ;  that  such  charter-party  was  made  in  pursuance 
of  an  agreement  between  M.  &  Co.  and  the  government  for  the 
supply  of  sliips  of  a  particular  description  to  carry  emigrants, 
which  agreement  did  not  provide  for  any  privity  of  contract  be- 
tween the  owners  of  such  ships  and  the  government ;  that  M.  & 
Co.  were  the  general  agents  of  the  defendant  to  charter  ships  in 
which  he  held  shares,  and  that  one  of  the  firm  was  registered  as 
the  managing  owner  of  the  S.  H. ;  and  that  it  was  neither  alleged 
nor  proved  that  the  government  over  knew  that  M.  &  Co.  or  any 
member  of  that  firm  had  general  authority  to  bind  the  defend- 
ant, and  had  acted  upon  the  belief  that  such  general  authority 
continued  unrestricted.  The  jury  having  found  for  the  defendant, 
the  Supreme  Court  of  Queensland  refused  a  rule  to  set  aside  the 
verdict,  and,  on  appeal  to  the  Privy  Council,  the  judgment  of  the 
Supreme  Court  was  sustained.  The  jury  having  found  that  the 
contract,  which  was  made  on  behalf  oi  the  owners,  which  would 
include  the  defendant,  was  made  "  contrary  to  the  express  direc- 
tions of  the  defendant,"  the  House  of  Lords  held  thai,  this  finding 
was  quite  justified  by  the  evidence ;  that,  although  the  defendant 
might,  on  becoming  aware  of  the  contract,  have  ratified  it,  there 
was  no  evidence  given  that  would  show  he  had  done  anything  that 
irould  amount  to  a  ratification  of  the  contract,  and  that  it  was  im- 
possible to  hold  the  defendant  bound  by  a  contract,  though  pur- 
porting to  be  made  on  his  behalf,  if  made  contrary  to  his  exprcE  s 
directions.* 


ized,  must,  in  order  to  bind  the  principal, 
1)6  with  a  full  knowliiilge  of  all  the  mater- 
ial facts.  If  the  <naterial  tacts  be  either 
suppressed  or  unknown,  the  ratification 
is  treated  as  invalid,  because  founded  in 
mistake  or  fraud.     Ibid. 

'  Miles  V.  McUwraith,  8  App.  Cas.  120. 
The  Privy  Council  approve<i,  in  this 
case,  the  principle  thus  laid  down  by 
Parke,  B.,in  Freeman  v.  Cooke,  2  Ex.  654, 
663 :  "  If  the  person  means  his  representa- 
tion to  be  Mted  on,  and  it  is  acted  upon 


accordingly ;  and  if,  whatever  a  ninn's 
real  intention  may  be,  he  so  condiu'ts 
himself  that  a  reasonable  man  would  take 
the  representation  to  be  true,  and  believe 
that  it  was  meant  that  hi-  should  act 
upon  it,  and  did  act  upon  it  as  true,  the 
party  making  the  representation  would 
be  equally  precluded  from  contesting  its 
truth ;  and  conduct  by  negligence  or 
omission,  where  there  is  a  duty  east  upon 
a  person  by  usage  of  trade  or  otherwise  to 
disclose  the  truth,   may  often  have  the 


PART  VIII.] 


AGENCY. 


629 


The  following  is  a  summary  of  the  principles  laid  down  in 
Insurance  Co  v.  McCain  :  ^  (1)  A  principal  cannot  be  allowed  to 
hold  out  a  person  as  his  agent,  and  then  disavow  responsibility 
for  his  acts.  After  being  once  appointed,  parties  dealing  with  him 
have  a  right  to  rely  upon  the  continuance  of  his  authority,  until 
in  some  way  informed  of  its  revocation.  (2)  Special  instructions 
limiting  the  authority  of  a  general  agent  whose  powers  would 
otherwise  be  coextensive  with  the  business  intrusted  to  him,  must 
be  communicated  to  the  party  with  whom  he  deals,  or  the  prin- 
cipal will  be  bound  to  the  same  extent  as  though  such  special  in- 
structions were  not  given.  (3)  After  the  acts  of  the  agent  are 
communicated  to  the  principal,  and  he  receives  and  retains  the 
fruit  of  such  acts  in  silence,  such  silence  will  be  deemed  equiva- 
lent to  acquiescence. 

D.,  the  managing  owner  of  a  ship,  through  the  plaintiffs,  his 
agents  at  Constantinople,  sold  her  to  the  Turkish  Government,  and 
received  a  bill  upon  the  Oriental  Bank  in  London,  for  the  amount 
of  the  purchase-money,  which  bill  was  duly  paid.  D.  had  no 
express  authority  at  the  time  from  the  defendants  (who  were  the 
owners  of  23-64ths  of  the  ship),  to  sell  her,  bui,  the  latter  knew 
that  a  sale  was  contemplated ;  and,  after  the  sale,  they  executed  a 
power  of  attorney,  reciting  that  they  had  agreed  to  sell  the  vessel 
to  the  Turkish  Government,  and  had  actually  received  tlie  pur- 
chase-money, and  empowering  the  plaintiffs  to  trunsfer  their  re- 
spective shares  and  to  hand  over  the  vens'  U)  the  purchasers. 
The  defendants  afterwards  received  from  D.,  oi  tsettkd  in  account 
with  him,  the  value  of  their  respective  shares.  It  was  held,  by 
the  Common  Pleas  Division,  affirmed,  on  appeal,  by  the  Court  of 
Appeal,  that  t'ue  jury  were  warranted  in  finding  that  the  defend- 
ants had  authc  rized  the  sale  of  the  ship  by  D.,  or  had,  by  their 
subsequent  ratification,  so  adopted  his  act,  as  to  render  them 
jointly  liable  to  the  plaintiffs  for  the  commission  due  to  the  latter 
on  the  sale ;  and,  also,  that  the  position  of  the  defendants  was 
not  so  altered  by  the  fact  of  the  plaintiffs  having  drawn  upon  D. 
a  bill  at  three  months'  date  tor  the  amount  of  the  commission. 


same  effect."  In  such  a  case,  though  the 
principal  does  not  actually  contract,  yet 
the  jwrson  who  thought  h«3  did  has  the 
option  to  preclude  him  from  denying  that 
ho  contracted,  if  the  case  is  brought  with- 
in the  alwve  nile ;  the  principle  being, 
that  a  person,  having  clothed  an  agent 
with  apparent  general  authority,  but  re- 
stricting it  by  secret  instructions,  is  bound 
(if  the  other  party  chooses  to  hold  him 
so)  to  one  who,  in  ignorance  of  the  restric- 
tions, contracts  through  the  agent,  on  the 


faith  of  the  agent  having  the  authority  he 
seems  to  have.  Miles  v.  M(^  11  wraith,  8 
App.  Cas.  120,  133.  See  Smith  v.  Mc- 
Guiro,  3  H.  &  N.  654  ;  Appleton  i;. 
Rinks,  6  East,  148  ;  Norton  t>.  Herron, 
Ry.  &  Mood.  229  ;  Tanner  i-.  Christian,  4 
E.  &  B.  691  ;  Cooke  v.  Wilson,  1  C.  B. 
N.  8.  153  ;  Shariand  v.  Brandt,  6  Q.  B. 
Div.  93  ;  Elbinger  Actien-Gesellschafft  v. 
Clave,  L.  R.  8  Q.  B.  318. 
1  96  U.  S.  84. 


630 


COMMENTARIES  ON  SALES. 


[book  II. 


as  to  release  the  former  from  liability  upon  the  dishonor  of  the 
bill.i 

Where  there  was  a  formal  letter  of  repudiation  of  the  acts  of 
the  agent  sent  by  the  principal  to  the  agent,  and  a  private  letter, 
in  effect  undertaking  to  ratify  the  acts  of  the  agent,  the  princi- 
pal was  held  bound,  in  a  case  of  a  sale  of  shares,  by  the  acts  of 
the  agent.2 

7.  Consignees,  Factors'  Acts,  etc. 

The  relative  rights  as  between  the  consignee  of  goods  and  the 
ship  as  to  freight  and  delivery,  are  set  out  by  the  Supreme  Court 
of  the  United  States,  in  Brittan  v.  Barnaby,'*  thns ;  Tlie  word 
"freight,"  when  not  used  in  a  sense  to  imply  the  burden  or  loading 
of  the  ship,  or  the  cargo  which  he  has  on  board,  is  the  hire  agreed 
upon  between  the  owner  or  master  for  the  carriage  of  goods  from 
one  port  or  place  to  another.  Tliat  hire,  without  a  different  stip- 
ulation by  the  parties,  is  only  payable  when  the  merchandise  is  in 
readiness  to  be  delivered  to  tlie  person  having  the  right  to  receive 
it.  Then  the  freight  must  be  paid  before  an  actual  delivery  can 
be  called  for.  In  other  words,  the  rule  is,  in  the  absence  of  any 
agreement  to  the  contrary,  that  freight,  under  an  ordinary  bill 
of  lading,  is  only  dcmandable  by  the  owner,  master,  or  consignee 
of  the  ship,  when  he  is  ready  to  deliver  the  goods  in  the  like 
good  order  as  they  were  in  when  they  were  received  on  board 
the  ship.  Such  is  the  general  rule.  Neither  party  can  require 
from  the  other  that  the  merchandise  shipped  under  one  bill  of 
lading  shall  be  put  up  into  parcels  for  delivery,  or  for  the  pay- 
ment of  freight.  They  may  do  so  by  stipulation  in  the  bill  of 
lading  or  by  a  subsequent  agreement,  for  <  ither  of  the  purposes 
just  mentioned.  The  master  is  bound  to  deliver  the  goods  in  a 
reasonable  time.     What  may  be  so  depends  upon  the  facilities 


»  Keay  v.  Fenwick,  7  C.  P.  D.  745. 
On  this  last-named  point  the  case  fol- 
lowed Bottomley  v.  Niittall,  5  C.  B. 
N.  8.  122.  Stie  also,  Thomson  v.  Daven- 
port, 9  B.  &  ('.  78  ;  Paterson  v.  Camlase- 
(|ui,  15  Ea.st,  62  ;  Addison  v.  Gandasequi, 
4  Taunt.  574  ;  Robinson  i>.  Wilkinson,  3 
Pile.?,  538  ;  Ford  v.  Beech,  11  Q.  B.  852  ; 
Belsl;aw  v.  Bush,  11  C.  B.  li»l. 

*  Loring  v.  Davis,  32  Ch.  Div,  625. 
It  was  claimed  that  the  letter  under- 
taking to  ratify  the  agent's  contract  was 
indefinite  in  its  character,  and  was  o]ion 
to  a  different  construction  from  that  which 
was  sought  to  be  placed  upon  it.  But  the 
court,  on  that  point,  adopted  the  law  as 
laid  down  by  Lord  Chelmsford,  in  Ireland 
V.  Livingston,  L.  R.  5  H.  L.  416,  on  the 


subject,  thus ;  '*  Now  it  appears  to  me 
that  if  a  principal  gives  an  order  to  an 
agent  in  sv!''h  uncertain  terms  r.s  to  be 
susceptible  of  two  different  meanings,  and 
the  agent  bond  fide  ado]>ts  one  of  them 
anil  acts  upon  it,  it  is  not  competent  to 
the  principal  to  re[mdiate  that  act  is  un- 
authorized because  he  meant  the  order  to 
be  read  in  the  other  sense  of  which  it  is 
equally  capable.  It  is  a  fair  answer  to 
such  an  attempt  to  disown  the  agent's 
authority,  to  tell  the  principal  that  tl^e 
departure  from  his  intention  was  occa- 
sioned by  his  own  fault,  and  that  ho 
should  have  given  his  order  in  clear  and 
unambiguous  terms." 
«  21  How.  627,  633. 


PART   VIII.] 


AGENCY. 


631 


there  may  be  for  the  discharge  of  the  cargo  at  the  port  of  deliv- 
ery, and  the  impediments  in  the  way  of  it.  When  the  shipment  is 
large,  or,  from  the  master's  storage  of  it,  it  cannot  be  landed  in  a 
day,  if  he  lands  a  part  of  it,  bis  lien  upon  the  whole  gives  him  the 
power  to  ask  from  the  consignee  of  the  merchandise  a  satisfactory 
security  for  the  payment  of  the  entire  freight  as  called  for  by  the 
bill  of  lading.  But  a  security  or  arrangement  is  all  that  he  can  ask. 
He  may  not  demand  that  the  whole  freight  of  the  shipment  should 
be  paid  before  the  consignee  has  had  the  opportunity  to  examine  his 
goods,  to  see  if  the  obligations  of  the  bill  of  lading  have  been  ful- 
filled by  the  shipowner.  Nor  is  the  ship  bound  to  land  an  entire 
shipment  in  a  day,  for  the  proper  storage  of  the  goods  is  the  mas- 
ter' ?  care,  and  he  may  do  it  in  such  a  way  as  may  be  most  advan- 
tageous to  the  ship,  taking  care  that  it  shall  not  be  done  to  the 
injury  of  the  goods,  or  in  such  a  manner  as  to  produce  unreason- 
able delay  in  the  delivery  of  them.  And  when  landings  of  the 
same  shipment  are  made  on  different  days,  if  the  shipper  disre- 
gards the  notice  given  to  him  that  such  will  be  the  case,  and  he 
shall  not  be  present  to  receive  the  goods,  and  has  not  made  an 
arrangement  to  secure  the  payment  of  the  freight,  they  may  be 
stored  for  safe  keeping  at  the  consignee's  expense  and  risk,  in  the 
shipowner's  name,  to  preserve  his  lien  for  the  freight. 

In  Brittan  v.  Barnaby,*  the  consignee  of  the  cargo  offered  to 
pay  the  freight  of  such  of  the  merchandise  as  had  been  landed. 
The  consignee  of  the  ship  refused  to  receive  it,  or  to  deliver  such 
goods,  claiming  that  he  had  a  right  to  demand  the  freight  upon 
the  whole  shipment,  when  he  was  only  ready  to  deliver  a  part  of  it. 
In  the  assertion  of  this  right,  the  respondent  from  day  to  day 
warehoused  the  goods.  The  court  held,  that  tlie  respondent,  having 
in  the  first  instance  demanded  the  entire  freight  called  for  by  the 
bill  of  lading,  without  any  right  to  do  so,  and  having  refused  to 
deliver  the  merchandise  belonging  to  the  libellant  when  the  last 
parcel  of  it  was  landed  on  the  wharf,  and  when  the  freight  due 
upon  the  wi^de  of  it  was  tendered,  on  the  ground  that  there  were 
due  charges  for  cartage  and  stowage,  did  so  without  color  of  law 
for  such  refusal,  and  the  respondent  was  held  liable  for  such 
charges,  and  for  value  of  the  lib  jllant'.s  merchandise,  after  freight 
and  primage  had  been  deducted,  when  it  was  wrongfully  detained 
from  the  respondent,  with  interest  from  the  commencement  of 
the  improper  detention.^ 

The  plaintiff,  by  his  agent,  T.,  delivered  goods  at  Greenboro', 
N.  C.  to  be  shipped  to  Columbia,  S.  C,  consigned  to  T.  &  R. 


J  21  How.  527. 


»  See  Bishop  v.  Ware,  3  Camp.  360  ; 
Ostrander  v.  Browu,  15  Johns.  39. 


682 


COMMENTARIES  ON  SALES. 


[book  II. 


there.  The  agent,  T.,  was  a  member  of  the  firm  of  T.  &  R.,  and 
on  delivery  of  the  goods  to  the  defendants,  he  informed  them  that 
the  goods  were  the  property  of  the  plaintiff.  The  goods  never 
left  Greensboro',  but  were  sold  there  without  the  plaintiff's  au- 
thority, by  T.  to  M.,  to  whom  the  goods  wrre  delivered.  The 
United  States  Supreme  Court  held,  affirming  the  judgment  of  the 
Circuit  Court,  that  where  it  is  known  that  the  goods  are  the  prop- 
erty of  the  shipper,  and  have  been  shipped  by  him  for  delivery  to 
the  consignees  as  his  agents  at  a  distant  place,  the  carrier  cannot 
deliver  the  goods  to  such  consignees,  nor  without  starting  them  on 
their  journey  ;  the  rule  being,  that,  where  tlie  consignor  is  known 
to  the  carrier  to  be  the  owner,  the  carrier  must  be  understood  to 
contract  with  him  only,  for  his  interest,  upon  such  terms  as  ho 
dictates  in  regard  to  the  delivery,  and  that  the  consignees  are  to 
be  regarded  simply  as  agents  selected  by  him  to  receive  the  goods 
at  a  place  indicated.^  But,  where  the  shipper  is  an  agent  merely, 
the  rule  is  different.' 

The  barque  Tangier,  a  foreign  vessel,  arrived  at  the  port  of 
Boston,  with  a  cargo  of  cotton,  which  she  commenced  discharg- 
ing on  Monday,  April  7,  and,  on  the  same  day,  the  master  noti- 
fied the  consignees  of  his  readiness  to  deliver  the  goods.  The 
unloading  continued  through  the  forenoon  of  Tuesday,  when,  the 
cotton  not  having  been  removed,  the  wharf  became  so  full  that 
the  work  was  suspended.  Notice  was  again  given  to  the  con- 
signees ;  and,  they  still  neglecting  to  remove  their  cotton,  a  third 
notice  was  added  on  Wednesday  morning.  On  the  afternoon  of 
that  day,  all  the  cotton  which  had  been  unladen  was  removed 
except  325  bales.  On  Thursday  forenoon  the  unloading  was  com- 
pleted. On  that  day  the  consignees  took  away  five  bales,  and 
postponed  taking  the  rest  until  the  next  day,  giving  as  a  reason 
that  it  was  fast-day.  About  three  o'clock,  on  Thursday  afternoon, 
the  cotton  on  the  wharf  was  consumed  or  damaged  by  an  acci- 
dental fire.  The  bill  of  lading  was  "  to  deliver,  in  like  good  order 
and  condition,  at  the  port  of  Boston,  unto  G.  &  P."  The  con- 
signees having  libelled  the  vessel,  the  Circuit  Court  for  Massa- 
chusetts held  that  the  vessel  was  liable  for  the  loss.  The  United 
States  Supreme  Court  reversed  the  decision,  holding,  first,  that 
the  goods  having  been  deposited  for  the  consignees  in  proper 


1  Southern  Express  Co.  v.  Dickson, 
94  U.  S.  649. 

«  Thompson  r.  Fargo,  49  N.  Y.  186  • 
Duff  ».  Budd,  3  Brod.  &  B.  177  ;  Sweet  v. 
Barney,  23  N.  Y.  325.  See  Insurance 
Co.  V.  Ruden,  6  Cranch,  338  ;  Jones  v. 
Sims,  6  Porter  (Ala. ),  162  ;  Dawes  v. 
Peck,  8  T.  R.  830 ;  Joseph  r.  Knox,  3 


Camp.  321 ;  King  v.  Meredith,  2  Camp. 
639  ;  Griffith  v.  Ingledew,  6  S.  &  R.  429  ; 
Dfivis  V.  James,  5  Burr.  2680;  Moore  v. 
V/ilson,  1  T.  R.  659 ;  Barrett  v.  Rogers, 
7  Mass.  297  ;  Conard  v.  Insurance  Co.,  1 
Pet.  444 ;  Craven  o.  Ryder,  6  Taunt. 
433  ;  The  Frances,  8  Cranch,  418. 


PART  VIII.] 


AGENCY. 


638 


order  and  condition,  at  a  proper  place,  at  mid-day,  on  a  week  day, 
in  good  weather,  this  generally  constitutes  a  good  delivery ;  due 
notice  to  remove  the  goods  having  been  given  the  consignees. 
Secondly,  that  as  there  is  no  statute  or  law  in  Massacluisetts  which 
forbids  the  citizen  to  labor  and  pursue  his  worldly  business  on  any 
day  of  the  week  except  on  the  Lord's  day,  usually  called  Sunday,* 
and  no  well-known  usage,  from  time  immemorial,  having  the  force 
and  effect  of  law  m  Boston,  which  requires  all  men  to  cease  from 
labor,  and  compels  vessels  engaged  in  foreign  commerce  to  cease 
from  discharging  their  cargoes,  and  hinders  consignees  from 
receiving  them,  the  fact  that  the  cotton  was  delivered  on  the  wharf 
on  fast-day  placed  no  greater  liability  on  the  vessel  than  if  the 
goods  had  been  delivered  on  any  other  day,  and  the  delivery  was 
good.* 

By  the  terms  of  a  bill  of  lading  of  the  barque  Griffin,  goods 
were  shipped  deliverable  to  a  consignee  at  Rio  de  Janeiro.  The 
goods  were  not  entered  on  the  ship's  manifest,  in  consequence  of 
which,  after  they  had  been  landed  and  the  duty  paid  by  the  con- 
signee, they  were  seized  by  the  Brazilian  Government  and  confis- 
cated. There  was  no  fraud  or  bad  faith  on  the  part  of  the  master, 
but  it  was  the  result  of  inattention  on  the  part  of  the  master, 
and  of  his  ignorance  of  the  laws  of  the  country  with  which  he  was 
trading ;  with  which,  the  court  held,^  it  was  his  duty  to  have 
acquainted  himself.*  The  court  further  held  that  the  appellants 
were  responsible  for  the  miscarriage  of  their  master  and  agent. 
Their  contract  was  an  absolute  one  to  deliver  the  cargo  safely,  the 
perils  of  the  sea  only  excepted ;  and,  that,  imdcr  such  a  contract, 
nothing  would  e.xcuse  them  for  a  non-performance,  except  they 
had  been  prevented  by  some  one  of  those  perils, —  the  act  of  the 
libellants,  or  the  law  of  their  country.  No  exception  of  a  private 
nature,  which  was  not  contained  in  the  contract  itself,  could  be 
engrafted  on  it,  by  implication,  as  an  excuse  for  its  non-perform- 
ance.^ The  delivery  contemplated  by  the  contract  in  the  bill  of 
lading  was  a  transfer  of  the  property  into  the  power  and  posses- 
sion of  the  consignee.  The  surrender  of  possession  by  the  master 
must  bo  attended  with  no  fact  to  impair  the  title  or  affect  the 
peaceful  enjoyment  of  the  property.  The  failure  to  enter  the 
property  on  the  mnaifest  was,  under  the  laws  of  Brazil,  a  cause 


*  In  tho  case  of  Farnum  i\  Fowle,  12 
Mass.  94,  it  is  said  by  Parker,  C.  J.,  — 
"There  nre  n>  fixed  and  established  holi. 
days  in  Masjachusetts,  in  which  all  bust' 
ness  is  suspended,  except  Sunday." 

»  The  Barque  Tangier,  23  How.  28. 
A  similar  doctrine  is  established  by  Fig- 
gins  V.  WUlie,  2  W.  Blk.  1186,  and  Spar- 


TO-  0.  Cooper,  lb.  1315.  And  see 
f  ttter  V.  Croome,  7  T.  R.  336  ;  Worthy 
V.  Palter,  6  Taunt.  180,  to  the  same  effect. 

^  The  Barque  Griffin,  22  How.  491. 

«  The  Vixon,  1  Dod.  145  ;  The  Adams, 
Edw.  Ad.  R.  310. 

'  Atkinson  v.  Ritchie,  10  East,  683 ; 
Spence  v.  Chodwick,  10  Q.  B.  516. 


634 


COMMENTARIES  ON  SALES. 


[book  II. 


of  confiBcation  from  the  event,  and  rendered  nugatory  every  effort 
subsequently  to  discharge  the  liability  of  the  ship  and  owners.* 

Where  a  consignee,  who  has  sold  merchandise  of  the  consignor, 
and  received  its  proceeds,  has  accepted  bills  drawn  against  those 
proceeds  which  are  not  yet  at  maturity,  or  are  in  the  hands  of  third 
persons,  for  value,  the  right  of  action  by  the  consignor  for  those  pro- 
ceeds are  suspended  until  the  bills  fall  due  and  arc  dishonored.^ 

The  Mary  Eddy  arrived  at  Charleston,  with  102  hhds.  of  sugar 
and  21  of  syrup  for  M.  &  Co. ;  the  goods  being  brought  under  an 
ordinary  bill  of  lading.  On  the  arrival  of  the  vessel,  the  master 
notified  M.  <fe  Co.  of  the  arrival  of  the  sugar  and  syrup,  offering  to 
deliver  the  goods  on  payment  of  freight.     M.  &  Co.  claimed  to 


*  It  was  held  in  Gosling  v.  Higgins, 
1  Camp.  451,  that  if  goods  put  on  board 
a  ship  to  be  carried  from  one  place  to 
another,  are  wronj;fully  seized  by  the 
officers  of  the  government,  so  that  they 
cannot  be  delivered  to  the  consignee,  the 
owner  of  the  goods  has  an  action  for  the 
non-delivery  against  the  owner  of  the 
ship,  who  must  seek  his  remedy  over 
against  the  otticers  of  the  government. 
So,  in  Hill  o.  Idle,  4  Camp.  327,  the 
consignee  of  a  particular  parcel  of  goods 
by  a  general  ship,  was  held  liable  to  the 
owner  for  not  takiiig  them  from  the  ship 
in  a  reasonable  time,  although  the  delay 
arose  from  the  necessity  of  procuring  an 
order  from  the  Treasury  to  land  the  goods, 
which  order  the  consignee  used  the  utmost 
diligence  to  obtain.  In  Barker  v.  Hodgson, 
3  M.  &  Sel.  267,  it  was  held,  '  it  a  char- 
terer of  a  ship,  who  covenants  to  send  a 
cargo  alongside  at  a  foreign  port,  is  not 
excused  from  sending  it  alongside,  though, 
in  consequence  of  the  prevalence  of  an 
infectious  disorder  at  the  port,  all  public 
intercourse  is  prohibited  by  the  law  at 
the  port,  and  though  he  could  not 
have  communication  without  danger  of 
contracting  and  communicating  the  dis- 
order. Lord  EUenborough  there  says,  — 
"  The  question  is,  on  which  side  the 
burden  is  to  fall,  if,  indeed,  the  per- 
formance of  tins  covenant  had  been 
rendered  unlawful  by  the  government  of 
this  country,  the  contract  would  have 
been  dissolved  on  both  sides.  And  this 
defendant,  as  he  had  been  thus  compelled 
to  abandon  his  contract,  would  have  been 
excused  for  the  non -performance  of  it,  and 
not  liable  to  damages.  But  if  in  con- 
sequence of  events  which  happen  at  a 
foreign  port,  t.ie  freighter  is  prevented 
from  furnishing  a  loading  there,  which  he 
has  contracted  to  furniidi,  neither  is  the 
contract  dissolved,  nor  is  he  excused  for 
not  performing  it,  but  must  answer  in 
damages."     See  Blight  v.  Page,  3  B.  &  P. 


295,  n.  ;  Hadley  v.  Clarke,  8  T.  R.  259  ; 
Touteng  v.  Hubbard,  3  B.  &  P.  291  ; 
Evans  v.  Hutton,  4  M.  &  G.  954  ;  Sjoetds 
V.  Luscombe,  16  East,  201  ;  Atkinson  v. 
Ritchie,  10  East,  533.  The  rule  that  has 
been  laid  down  in  Paradine  o.  Jane,  Aleyn, 
26,  has  often  been  recognized  in  courts  of 
law  as  a  souud  one  ;  i.  e.,  that  when  the 
party  by  his  own  contract  creates  a  duty 
or  charge  upon  himself,  he  is  bound  to 
make  it  good  if  he  may,  notwithstanding 
any  accident  by  inevitable  necessity  ;  be- 
cause he  might  have  provided  against  it  by 
his  contract.  Canal  Nav.  Co.  v.  Pritchard,6 
T.  R.  750;  Bullock  v,  Dommitt,  6  T.  R.  050. 
«  Black  V.  Zacharie,  3  How.  483.  The 
law,  which  is  well  settled,  is  thus  laid 
down  by  Story,  J.  :  "In  respect  to  the 
first  question,  it  is  plain  to  us  that  there 
was  no  debt  due  to  Zacharie  &  Co.  at  the 
time  when  the  attachment  was  made. 
The  supposed  debt  was  for  the  proceeds  of 
a  cargo  of  sugar  and  molasses,  sold  by 
Black  on  account  of  Zacharie  &  Co. 
Assuming  those  proceeds  to  be  due  and 
payable,  Zacharie  &  Co.  had  drawn  cer- 
tain bills  of  exchange  upon  Black,  which 
had  been  accepted  by  the  latter,  for  the 
full  amount  of  those  proceeds  ;  and  all  of 
those  bills  had  been  negotiated  to  third 
persons,  and  were  then  outstanding,  and 
three  of  them  were  not  yet  due.  It  is 
clear,  upon  principles  of  law,  that  this 
was  a  suspension  of  all  right  of  action  in 
Zacharie  &  Co.  until  after  those  bills  had 
become  due  and  dishonored,  and  were 
taken  up  by  Zaciiarie  &  Co.  It  amounted 
to  a  new  credit  to  Black  for  the  amount 
of  those  accefitances,  during  the  running 
of  the  bills,  and  gave  Black  a  complete 
lien  upon  those  proceeds,  for  his  indemnity 
against  those  acceptances,  until  they  were 
no  longer  outatanaing  after  they  had  been 
dishonored."  Ibid.  p.  510.  Kearslake  v. 
Morgan,  5  T  R.  513  ;  Steadman  v.  Gooch, 
1  Esp.  3  ;  Belshaw  v.  Bush,  U  C.  B.  206 ; 
Ford  i>.  Beach,  11  Q.  B.  867. 


PART  VIII.] 


AOENCT. 


685 


have  the  goods  first  at  their  store  to  inspect  them  there,  and  not 
to  pay  the  freight  until  they  had  found  the  goods  had  suffered  no 
injury  during  the  voyage.  The  master  refused  to  assent  to  this, 
claiming  a  right  to  his  freight  when  the  goods  were  delivered  on 
the  wharf.  While  discussion  was  going  on  the  syrup  and  3  hhds. 
of  the  sugar  were  taken  to  M.  &  Co.'s  store.  They  refused  to  pay 
freight  on  these  or  on  any  until  all  were  in  their  storehouse.  The 
master  discharged  the  balance  of  the  sugar  on  the  wharf,  and  noti- 
fied M.  &  Co.  that,  unless  the  freight  were  paid,  the  sugar  would 
remain  on  the  wharf  until  sunset,  and  then  be  stored  at.the  expense 
and  risk  of  M.  &  Co.  Tlie  freight  not  having  been  paid,  accord- 
ingly the  sugar  was  stored.  M.  &  Co.  libelled  the  vessel.  After 
conflicting  decisions  in  the  courts  below  on  points  involved  in  the 
case,  the  matter  was  brought  on  appeal  to  the  Supreme  Court  of 
the  United  States,^  when  the  decree  of  the  Circuit  Courts  dismiss- 
ing the  libel  was  sustained,  the  Supreme  Court  holding,  Firaty 
that  the  shipowner  has  a  lien  on  the  cargo  for  the  freight,  and, 
consequently,  may  retain  the  goods  after  the  arrival  of  the  ship  at 
the  port  of  destination  until  the  payment  is  made,  unless  there 
is  some  stipulation  in  the  charter-party  or  bill  of  lading  inconsist- 
ent with  such  right  of  retention  and  which  displaces  the  lien.* 
Secondly,  that  delivery  on  the  wharf  is  sufficient,  if  due  notice  bo 
given  to  the  consignees,  and  the  different  consignments  be  properly 
separated,  so  as  to  be  open  to  inspection  and  conveniently  access- 
ible to  their  general  owners  ;**  and  when  the  goods,  after  being 
80  discharged,  and  the  different  consignments  properly  separated, 
are  not  accepted  by  the  consignee  or  owner  of  the  cargo,  the 
carrier  should  not  leave  them  exposed  on  the  wharf,  but  should 
store  them  in  a  place  of  safety,  notifying  the  consignee  or  owner 
that  they  are  so  stored,  subject  to  the  lien  of  the  ship  for  the  freight 
and  charges,  and  when  he  has  so  done  he  is  no  longer  liable  on 
his  contract  of  affreightment;*  and,  in  such  cases,  the  lien  of 
the  master  continues,  as  the  goods  remain  in  his  constructive 
possession.^ 

C.  &  Co.  shipped  cotton  to  the  defendants,  and  drew  on  them, 
at  or  about  the  time  of  the  different  shipments,  some  eight  or  ten 
drafts  for  the  taxes  on  the  cotton,  in  favor  of  the  deputy  p.f)llector. 
The  defendants  were  advised,  at  the  drafts  were  drawn,  of  the  fact 
of  their  having  been  drawn,  and  wrote  to  C.  &  Co.  promising  to 
accept  them ;  the  letter  being  shown  to  the  deputy  collector.  The 
drafts  were  indorued  by  the  deputy  collector,  to  whom  they  were 


»  The  Eddv,  5  Wall.  481. 
«  Bags  of  Linseed,  1  Black,  112. 
*  Ship  Middlesex,  11  Law  Reptr.  N.  s. 
(Mass.)  14. 


♦  Richardson  v.  Goddnrd,  23  How.  39 ; 
Hyde  i;.  T.  &  M.  Nav.  Co.,  6  T.  K.  389  j 
Brittan  v.  Bafnaby,  21  How.  532. 

<>  Ward  V.  Felton,  1  East,  512. 


I 


636 


COHMENTABIES  ON  SALES. 


[book  II. 


given,  to  the  collector,  the  plaintiff,  who,  as  between  himself  and 
the  government,  treated  the  drafts  as  payment  of  the  tax,  char- 
ging himself  with  the  amount.  The  cotton  was  also  marked  as  tax- 
paid  cottun,  and  was  allowed  to  go  forward  as  such.  Some  of  the 
drafts  wont  in  at  once  and  were  paid,  but  six  of  them,  drawn 
between  October,  1866,  and  February,  1867,  did  not  go  in  for 
payment  until  April,  1867.  The  defendants  then  refused  to  pay, 
alleging  that  they  had  then  no  cotton  belonging  to  C.  &  Go. ;  that 
the  uon- presentment  of  the  drafts  in  due  course  had  led  them  to 
suppose  that  C  &  Co.  had  themselves  in  some  way  taken  them  up, 
and  that  the  account  with  them  had  been  settled  on  that  assump- 
tion. The  plaintiff,  in  an  action  to  recover  on  the  drafts,  alleged 
to  have  been  accepted  by  the  defendants'  letter  referred  to,  recov- 
ered judgment.  This  judgment  was,  on  error,  sustained.^  The 
court  held  that  the  written  promise  of  the  defendants  to  accept 
the  drafts  was  equivalent  to  acceptance.  After  notice  of  the 
drawing  of  the  drafts,  and  after  the  sale  of  the  cotton,  they  had 
so  much  money  in  their  hands  to  be  applied  according  to  their 
engagement.  There  was  no  stipulation  between  them  and  the 
plaintiff.  Their  contract  was  with  C.  &  Co.  When  the  money 
was  received  for  the  cotton  they  held  it  in  trust  for  the  plaintiff, 
and  their  sole  duty  and  business  in  relation  to  it  was  to  pay  it 
over  on  the  drafts  when  called  for,  according  to  their  agreement. 
If  they  paid  it  to  C.  &  Co.,  they  did  so  in  their  own  wrong.  The 
fact  in  no  wise  affected  their  liability  to  the  plaintiff,  and  was  not 
an  element  in  the  case  to  be  considered.  In  no  view  could  they 
be  permitted  te  keep  the  money  for  their  own  use,  or  avail  them- 
selves of  a  payment  made  in  violation  of  the  plaintiff's  rights  and 
of  their  duty.  They  could  no  more  object  to  the  consideration  of 
the  drafts  than  if  the  money  were  still  in  their  hands.  For  the 
purposes  of  the  case  it  must  be  regarded  as  there  when  payment 
of  the  drafts  was  demanded.' 

The  following  question  came  up  in  Jewan  v.  Whitworth,^  under 


»  Milteaberger  v.  Cooke,  18  Wall.  421. 

3  The  court  in  delivering  judgment 
thus  treated  the  matter  :  As  between  the 
parties,  the  tax  was  paid  by  the  plaintiff 
for  C  &  Co.  His  marking  the  bales,  gir- 
ing  the  permit,  charging  himself  with  the 
amount,  and  reporting  it  to  the  govern- 
ment  as  paid,  had  that  effect  The  result 
was  the  same  to  C.  &  Co.  as  if  so  much 
money  had  been  advanced  at  their  request, 
and  so  applif^d  for  their  benefit.  They 
were  permitted  to  ship  the  cotton  to  the 
defendants,  in  all  respects  as  if  the  money 
had  been  actually  paid,  and  the  requisite 
vouchers  had  been  given  upon  the  basis 
of  sucL  payment.    The  assumpsit  of  the 


collector  supplied  the  place  of  the  money. 
No  demand  has  been  made  by  the  govern- 
ment against  C.  &  Co.  Ttiey  have  had 
the  full  benefit  of  the  arrangement.  As 
between  them  and  the  plaintiff,  the  trans- 
action is  as  if  the  plaintiff  had  lent  C.  & 
Co.  the  amount  m  gold,  or  silver,  or 
treasury  notes,  with  one  hand,  and  re- 
ceived it  back  with  the  other.  It  has 
been  held  that  promissory  notes  given 
under  such  circumstances  can  he  enforced 
by  the  payee.  Bank  v.  Dillon,  30  Vt. 
122 ;  Keeley  v.  Noyes,  43  N.  H.  211  ; 
Smith  V.  Mawhood,  14  M.  &  W.  463. 
•  L.  R.  2  £q.  692. 


PABT   VIII.] 


AGENCY. 


687 


the  English  Factors'  Acts,  6  Goo.  4,  c.  94,  and  6  and  6  Vic,  c.  39.» 
H.,  a  speculator  in  cotton,  in  July,  1864,  requested  W.  to  pur- 
chase  for  him,  in  W.'s  name,  400  bales  of  Egyptian  cotton,  for 
delivery  in  the  September  following.  W.  assented,  employing  for 
the  purpose  (with  the  knowledge  of  H.),  as  his  broker,  C,  who 
knew  that  W.  was  acting  as  agent,  and  VV.  became  liable  on  a 
series  of  contracts,  the  first  of  which  was  due  on  Sept.  9,  The 
price  of  cotton  falling,  C.  refused  to  carry  out  the  pending  ar- 
rangements for  purchase  unless  he  was  secured  from  loss,  and  W. 
applied  to  H.,  who,  on  Sept.  8,  promised  to  give  some  security, 
and  on  Sept.  26,  deposited  with  W.,  and  W.  deposited  with  C, 
with  unconditional  power  of  sale,  a  bill  of  lading  of  a  cargo  of 
Surat  cotton,  of  which  H.  was  the  consignee  from  the  plaintiffs,  a 
firm  at  Bombay,  as  their  fr.;;tor ;  but  H.  was  not  known,  cither  to 
W.  or  to  C,  to  be  other  than  the  true  owner.  On  the  same  day 
C.  made  a  first  payment  on  account  of  W.'s  indebtedness  under 
the  contracts ;  and  he  continued  to  make  other  payments.  W.  not 
advancing  anything.  In  October,  H.  stopped  payment.  A  bill 
was  filed  by  the  plaintiffs  claiming  the  proceeds  of  the  cargo  of 
Surat  cotton.  W.  and  C.  both  denied  any  notice  or  knowledge 
that  any  other  than  H.  was  the  absolute  owner  of  the  cargo,  and 
C.  alleged  that  but  for  the  transfer  and  deposit  with  him  of  the 
bill  of  lading  as  was  done,  he  should  not  have  completed  the  con- 
tract, and  that  he  accepted  the  same  in  the  faith  that  W.'s  prin- 
cipals had  full  right  to  deal  with  the  documents,  and  that  W.  had 
full  power  to  deposit  them.    The  plaintiffs  claimed  that  the  trans- 


>  By  6  Geo.  4,  c.  94,  g  7,  ?t  was  en- 
acted that  factors  or  agen'os  intnisted  with 
goods,  for  the  purpose  o.'  consignment  or 
sale,  are  deemed  owners,  so  as  to  mve 
validity  to  contracts  with  persons  dealing 
bond  fide  upon  the  faith  of  such  property. 
By  §  2,  pei'sons  intrusted  with  thi'  posses- 
sion of  bills  of  lading,  etc.,  are  deemed 
owners  so  as  to  make  valid  contracts. 
This  act  was  amended  by  5  &  6  Vic. 
c.  39.  It  is  there  recited  that,  "  whereas 
advances  on  the  security  of  goods  and 
merchandise  have  become  an  usual  and 
ordinary  course  of  business,  and  it  is  expe- 
dient and  necessary  that  reasonable  and 
safe  facilities  should  be  afforded  thereto, 
and  that  the  same  protection  and  validity 
should  be  extended  to  bond  fide  advances 
upon  goods  and  merchandise  as  by  the  said 
recited  act  (6  Geo.  4,  c.  94)  is  given  to 
sales,  and  that  owners  intrusting  agents 
with  the  possef>"ion  of  goods  and  mer- 
chandise, or  of  documents  of  title  thereto, 
should  in  all  cases  where  such  owners  by 
the  said  recited  act,  or  otherwise,  would 
be  bound  by  a  contract  or  agreement  of 


sale,  be  in  like  manner  bound  by  any 
contract  or  agreement  of  pledge  or  lien, 
for  any  advances  bond  fide  made  on  the 
security  thereof."  And,  by  the  first  sec- 
tion, it  is  enacted  :  "  That  from  and  after 
the  passing  of  this  act,  any  agent  who 
shall  thereafter  be  intrusted  with  the  pos- 
session of  goods,  or  of  tlie  doiiiiiieiits  of 
title  to  goods,  shall  be  deemed  and  taken 
to  be  owner  of  such  goods  and  docunicnts, 
so  far  as  to  give  validity  to  any  cdiitract 
or  flgreoment  by  way  of  ph-dfie,  lien,  or 
security,  bond  fide  made  by  any  person 
with  such  agent  so  instrusted  as  aforesaid, 
as  well  for  any  original  loan,  advance,  or 
payment,  made  upon  the  security  of  such 
goods  or  documents,  as  also  for  any  further 
or  continuing  advance  in  resjicct  thereof, 
and  such  contract  or  ajrreement  shall  be 
binding  upon  and  good  against  the  owner 
of  such  goods,  and  all  other  persons  inter- 
ested therein,  notwithstanding  the  person 
claiming  such  pledge  or  lien  may  have  had 
notice  that  the  person  with  whom  such 
contract  or  agreement  is  made  is  only  an 
agent." 


688 


COMMENTARIES  ON  BALES. 


[book  II. 


action  was  not  protected  by  the  Factors*  Acts,  because  it  was  a 
I)lcdgc  given  to  secure  an  antecedent  liability  from  11.  to  W.  The 
court  held  that  the  deposit  of  the  bill  of  lading  by  IT.  was  not 
made  in  respect  of  an  antecedent  debt  of  H.  to  W.,  within  the 
meaning  of  the  Factors'  Acts ;  and  that,  having  been  made  by  H. 
in  respect  of  an  advance  by  C,  on  behalf  of  W.,  within  the  mean- 
ing of  those  acts,  it  was  binding  on  the  plaintiffs.^ 

A  factor,  by  pledging  goods  in  his  possession  or  under  his  con- 
trol, as  agent,  for  an  amount  which  does  not  exhaust  their  "value, 
has  not  thereby  parted  with  his  control  over  the  goods,  so  as  to 
preclude  himself  from  malting  a  further  pledge  for  the  balance  of 
their  value,  which  shall  be  valid  as  against  the  principal  under  the 
Factors'  Acts.  Cotton  was  consigned  for  sale  by  A.  to  B.  B. 
deposited  the  bill  of  lading  with  C,  a  broker,  and  authorized  him 
to  receive  and  sell  the  cotton,  and,  subsequently,  made  a  further 
pledge  to  D.  of  the  balance  of  the  net  proceeds  of  the  cotton  by 
order  in  writing  communicated  to  and  assented  to  by  C.  It  was 
held  that  the  pledge  to  D.  was  valid  as  against  A.  under  the 
Factors'  Acts.^ 

The  English  Factors'  Act  (5  and  6  Vic,  c.  89)  does  not  apply 
to  pledges  for  antecedent  liabilities  (whether  they  may  or  may  not 
have  ripened  into  debts),  where  no  actual  advance  is  made  at  the 
time  of  the  pledge.  Therefore,  where  H.,  a  factor,  pledged  goods 
of  his  principal  to  G.,  firsts  to  secure  the  payment  of  an  acceptance 
of  H.  in  G.'s  hands,  not  then  due,  which  had  been  given  to  protect 
G.'s  liability  on  a  contract  as  H.'s  broker ;  »econdly,  to  repay  to 
G.  his  loss  on  a  re-sale  of  goods  which  G.  had  purchased  for  H. 
in  his  own  name ;  it  was  held  that  the  transaction  was  not  pro- 
tected by  the  Factors'  Act,  and,  semhle,  that  both  liabilities  were 
antecedent  debts.^  It  was  claimed  that  this  case  came  precisely 
within  Jewan  v.  Whitworth  ;*  but  this  case  is  distinguished  from 
that,  inasmuv-'h  as  in  Jewan  v.  Whitworth  there  was,  as  between 
the  pledgor  rnd  pledgee  of  the  goods  no  antecedent  liability,  and 
an  actual  advance  was  made  for  which  the  bill  of  iading  covering 
the  goods  was  pledged.  Here  there  was  no  new  advance  between 
the  parties,  but,  simply  an  antecedent  liability,  and  it  was  imma- 
terial, as  far  as  such  "  antecedent  liability  "  was  concerned,  whether 
it  had  or  had  not,  so  far  as  the  statute  was  concerned,  ripened 
into  a  debt.^ 


»  Jewan  V.  Whitworth,  L.  R.  2  Eq. 
692.  See,  also,  Learoyd  v.  Robinson,  12 
M.  &  W.  745;  Luce  v.  Prescott,  1  Atk. 
245  ;  Vancasteel  v.  Booker,  2  Ex.  691, 
and,  per  Lord  St.  Leonards,  in  Navanl- 
shaw  V.  Brownrigg,  2  De  G.  M.  &  G. 
441,  450. 


"  Portalis  v.  Tetley,  L.  R.  6  Eq.  140. 

*  Macnee  v.  Gorst,  L.  R.  4  Eq.  315. 

*  L.  R.  2  Eq.  692,  stated  atUe. 

»  Under  the  Factors'  Act,  5  &  6  Vic. 
c.  39,  a  contract  with  an  agent  for  the 
pledge  of  the  goods  will  be  valid  as  against 
the  principal,  though  the  person  dealing 


PART  Till.] 


AOENCT. 


689 


In  Kaltcnbach  t;.  Lewis,*  a  variety  of  questions  came  up  under 
the  Factors'  Acts.  The  following  are  the  points  involved,  and  the 
holdings  upon  them,  by  the  Court  of  Appeal,  varying  the  decision 
of  Vice-ChanccUor  Bacon :  — 

K.,  in  Singapore,  was  in  the  habit  of  consigning  to  M.,  in  Lon- 
don, for  sale.  M.  em})I')yed  L.  and  P.,  London  brokers,  in  the  sale 
of  these  goods,  and  in  otncr  extensive  sales  and  purchases,  and 
died  in  May,  1880,  heavily  indebted  to  them  on  the  balance  of  his 
account.  Shortly  before  M.'s  death,  K.  had  consigned  cargoes  to 
M.  by  several  different  ships.  M.  put  them  in  the  hands  of  L.  and 
P.  for  sale,  and  pledged  to  them  the  several  bills  of  lading  for 
separate  advances  made  by  them  to  him  on  the  respective  cargoes. 
As  between  K.  and  M.,  these  pledges  were  unauthorized  and  im- 
proper; but  L.  and  P.  had  no  notice  of  any  impropriety.  One 
cargo  had  been  sold  before  M.'s  death,  but  not  delivered  nor  paid 
for.  The  others  remained  unsold  at  his  death,  and  were  not  sold 
until  after  the  commencement  of  an  action  by  K.  to  recover  them. 
L.  and  P.  claimed  a  general  lien  on  the  balance  of  the  proceeds 
of  all  the  cargoes  after  repayment  of  the  specific  advances,  resting 
their  claim  on  an  alleged  agreement  with  M.  to  that  effect  and  on 
mercantile  usage.  Held,  that  neither  such  agreement  nor  such 
usage  was  established  in  evidence,  and  that  if  it  had  been,  such 
a  general  lien  could  not  be  claimed  under  the  Factors'  Act ;  and 
held,  that  apart  from  the  Factors'  Act,  K.,  an  undisclosed  foreign 
principal,  could  not  sue  L,  and  P.  for  the  proceeds  of  goods  prop- 
erly sold  by  them  in  M.'s  lifetime,  or  if  he  could,  he  could  only 
sue  as  representing  M.,  and  subject  to  all  rights  of  set-off  available 
against  M.,  and  that,  therefore,  L.  and  P.  were  entitled  to  a  lien 
on  the  balance  of  the  proceeds  of  the  sold  cargo,  although  it  was 


with  the  agent  knows  him  to  be  only  an 
agent  ir.  respect  of  the  goods  |iledgi;d, 
provided  that  the  person  so  dealing  acts 
bond  fide  and  without  notice  that  the 
agent  is  acting  maid  fiih  mid  lieyond  his 
authority.  To  deprive  tho  pledgee  of  the 
protection  of  the  act,  he  must  be  fixed 
with  knowledge  tiiat  the  agent  is  acting 
maid  fide,  and  no  mere  suspicion  will 
amount  to  notice  ;  nor  will  the  knowledge 
that  the  agent  hns  power  to  sell  the  goods 
constitute  notice  that  he  has  not  power  to 
pledge  them.  Navanlslmw  v.  Brownrigg, 
2  De  G.  M.  &  G.  441.  But  in  Evans  v. 
Trueman,  1  Moo.  &  R.  10,  it  was  held, 
that  a  party  receiving  East  India  warrants 
from  a  factor  in  jiledge  for  moneys  ad- 
vanced to  hira,  cannot  retain  them, 
under  6  Geo.  4,  c.  94,  against  the  true 
owner,  if  from  the  circumstances  he  must, 
as  a  reasonable  man,  have  known  them 
not  to  belong  to  the  factor ;  although  no 


direct  conimnnication  of  that  fact  is  made 
to  him.  Lord  Tenlerden,  in  so  deciding, 
said:  "Tho  expression  of  the  stiitute  is, 
that  a  party  is  to  be  entitled  to  its  protec- 
tion, if  '  he  shall  not  luive  notice,  by  the 
documents  or  otherwise,'  that  the  pledger 
was  not  the  actual  and  bond  fide  owner  of 
the  goods  pledged.  A  ])fr.son  may  have 
knowledge  of  a  fact  either  by  direct  com- 
munication, or  by  being  aware  of  circum- 
stances which  must  lead  a  reasonable  tnan, 
applying  his  mind  to  them,  and  judging 
from  them,  to  the  conclusion  that  the  fact 
is  so.  Knowledge  acquired  in  either  of 
these  ways  is  enough,  1  think,  to  exclude 
a  party  from  the  Wnefit  of  the  provisions 
of  this  statute  :  slight  suspicion,  I  think, 
will  not."  See  Gill  t>.  Kymer,  5  Moore, 
.503  ;  Haynes  v.  Foster,  2  Cr.  &  M.  237  ; 
Stedman  v.  Martinnant,  13  East,  427; 
Ex  parte  Skinner,  1  Deac.  &  Ch.  403. 
1  24  Ch.  Div.  64. 


640 


COMMENTARIES  ON  SALES. 


[book  II. 


not  delivered  or  paid  for  in  M.'s  lifetime.  And  held,  that  as  re- 
gards the  goods  unsold  at  M.'s  death,  K.  was  entitled  to  them 
subject  only  to  the  payment  of  the  sums  for  which  they  were  re- 
spectively specifically  pledged.  L.  and  P.  bought  goods  for  M., 
not  disclosing  the  fact  that  they  bought  as  agents  and  were  there- 
fore as  between  them  and  the  vendors  personally  liable  to  pay. 
On  the  day  before  the  day  of  payment  M.  asked  L.  and  P.  to  make 
him  an  advance  on  the  security  of  one  of  K.'s  cargoes,  to  enable 
him  to  pay  for  those  goods.  L.  and  P.  did  so,  and  the  goods  were 
thus  paid  for  thro'^gh  L.  and  P.  They  knew  that  the  cargo 
pledged  did  not  belong  to  M.,  but  nothing  further ;  and  they  did 
not  know  whether  the  goods  bought  by  M.  were  bought  on  his  own 
account  or  not.  Held,  that  as  M.  was  not  at  the  time  of  the  ad- 
vance indebted  to  L.  and  P.  in  respect  of  the  goods  bought,  though 
they  were  sureties  for  the  payment,  the  pledge  was  not  a  pledge  to 
secure  an  antecedent  debt  within  the  meaning  of  the  Factors'  Act, 
and  was  valid,  there  being  nothing  in  the  circumstances  to  give 
them  notice  that  M.  was  violating  his  duty  to  his  principal .^ 

On  appeal  of  the  case  to  the  House  of  Lords,'  it  was  held,  in 
this  respect  affirming  the  decision  of  the  Court  of  Appeal,  that  the 
obligation  under  which  M.  lay  to  the  respondents  to  pay  the  de- 
posits and  thus  prevent  their  being  called  upon  to  pay  them,  did 
not  constitute  an  antecedent  debt  within  the  meaning  of  the  Fac- 


*  Lindley,  L.  J.,  in  delivering  the  judg- 
ment of  the  Court  of  Apiieal,  thus  sum- 
marized the  law  in  its  application  to  this 
<*jwe.  He  says:  "The  present  case  may, 
in  our  opinion,  be  shortly  summed  up  in 
the  loUowing  manner.  First,  a  person 
receiving  goods  from  an  agent  can  ac- 
quire from  the  agent  all  such  title  as  the 
agent  had  in  the  goods  by  reason  of  lien 
for  advances  or  otherwise  ;  all  such  title  as 
^he  agent  had  express  puthority  to  create, 
and  all  such  title  as  the  agent  has  authority 
to  create  by  the  law  or  custom  of  the  country 
where  the  vgency  is  to  be  exercised  ;  but, 
as  *  general  rule,  the  person  taking  such 
goods  can  get  no  lictter  title  than  one  or 
other  of  them.  Here  Meyer  had  no  inter- 
est in  the  gooils  by  reiison  of  advances  ; 
he  had  no  exprt^ss  authority  to  pledge  the 
goods  tor  his  own  debt ;  no  custom  has 
been  proved  authoiizing  him  so  to  do 
even  if  it  were  vnlid  ;  and, consequently, the 
defendant's  only  title  as  regards  the  goods 
is  under  the  Factors'  Acts.  Secondly,  al- 
though an  agent  authorized  to  receive 
money  for  a  disclosed  principal  can  only 
validly  receive  it  in  cash  and  disengaged 
from  any  other  relations  between  )myer 
and  payee,  an  agent  for  wle  authorized  to 
employ  in  hia  own  name  a  broker  or  other 


sub-agent  in  effectinn;  the  sale  may  be 
satistiud  by  set-off  or  in  any  other  manner 
in  which  a  debt  may  be  discharged  as 
between  the  agent  and  sub-agent.  Here 
Meyer  was  authorized  to  employ  the  de- 
fendants in  his  own  name,  and  they  are 
therefore  entitled  to  satisfy  by  set-off  the 
debt  arising  from  the  sale  of  the  plaintiff's 
goods  during  Meyer's  lifetime.  Thirdly, 
that  the  autnority  given  by  Meyer  to  the 
defendants  to  sell  the  goods  was  with- 
drawn by  his  death  and  the  commence- 
ment of  this  action,  and  consequently  that 
in  respect  of  the  moneys  arising  from  the 
sales  subsequent  to  these  events  the  defend- 
ants have  no  right  of  set-off.  The  plain- 
tiffs are,  therefore,  entitled  to  the  moneys 
prod  .ced  by  the  sale  of  the  goods  con- 
signed by  the  Soteria,  Lansdowne,  and 
Glen  Callach,  after  deducting  from  those 
moneys  respectively  the  sums  of  A'200  and 
iI800  advanced  by  the  defendants  on  these 
goods  respectively.  As  regards  the  claim 
of  the  plaintiffs  to  the  proceeds  of  the 
goods  consigned  by  the  Heaconstieid,  the 
Antenoe,  and  the  Comus,  the  action  roust 
be  dismissed."  Kalteubach  v.  Lewis,  24 
Ch.  Div.  54,  83. 

'  Kaltenbach  v.  Lewis,  10  App.  Cas. 
617. 


PART   VIII.] 


AGENCT. 


641 


in 


de- 
are 
the 
[tifTs 
lly, 
the 


llain- 


tiose 

land 

nese 

aim 

the 

I  the 

nust 

24 


tors'  Act,  5  and  6  Vic,  c.  39,  §  3,  and  that  the  pledges  were  made 
in  respect  of  bond  fide  advances,  and  not  of  antecedent  debvs,  and 
were  valid  against  the  aopellants.  But,  with  reference  co  the 
goods  which  had  been  sold  for  M.  by  the  respondents,  but  not 
delivered  to  the  purchasers  nor  paid  for  when  M.  died  insolvent 
indebted  to  the  respondents  on  general  account,  the  House  of 
Lords  lield,  reversing  in  this  respect  the  decision  of  the  Court  of  Ap- 
peal, that,  after  repayment  of  the  respondent's  advance,  the  surplus 
prcecds  of  sale  belonged  to  the  appellants ;  that  the  appellants 
could  sue  the  respondents  for  such  surplus,  whether  on  the  ground 
of  privity  of  contract,  or  on  the  ground  of  property,  or  under  the 
Factors'  Act,  6  nnd  6  Vic,  c  39,  §  7.i 

S.,  who  had  for  many  years  traded  as  a  timber  merchant  in  his 
own  name,  entered  into  an  agreement  with  F.  &  Co.,  who  were 
also  timber  merchants,  to  carry  on  his  busmess  thenceforth  as 
their  agent  at  a  remuneration  by  way  of  a  share  of  profits.  The 
business  was  thenceforth  carried  on  under  this  agreement,  but  in 
the  name  of  S.,  as  before.  S.  dealt  with  the  timber  in  his  posses- 
sion as  if  he  were  the  absolute  owner  of  it  (except  as  between 
himself  and  F.  &  Co.),  and  there  was  nothing  done  to  inform  the 
outside  world  of  tlie  change  which  had  taken  place.  T"-  the  course 
of  the  business  F.  &  Co.  drew  bills  on  S,,  vvhich  he  uccepted  in 
his  own  uf.me,  to  be  protected  by  F.  &  Co.  Both  F.  &  Co.,  and 
afterwards,  S.,  filed  liquidation  petitions.  Before  S.'s  liquidation, 
F.  &  Co.'s  trustee  demanded  the  timber  in  his  hands,  which  was 
refused.  Held,  that,  to  the  extent  of  the  current  bills  S.'s  estate 
had  a  lien  on  the  timber;  and,  semble,  the  reputed  ownership 
clause  applies  to  goods  in  the  hands  of  a  factor,  unless  the  rela- 
tion of  principal  and  factor  is  notorious.'^ 

An  agent  "  intrusted  with  and  in  possession  of "  goods,  or  of 
the  documents  of  title  to  goods,  within  the  Factors'  Acts,  is  a 
person  who  is  intrusted  as  agent  for  sale ;  arid,  consequently,  one 
whose  authority  has  been  revoked  cannot  make  a  vplid  pledge  of 
goods  which  had  been  intrusted  to  him  for  sale,  but  which  he  has 
wrongfully  retained  after  his  authority  had  been  revoked,  and 
the  goods  demanded  from  him  by  his  principal,^ 


•  See  New  Zcnlnnd  &  Australian 
Land  Co.  v.  Watson,  5  Q.  B.  Div.  474  ; 
7  Q.  B.  Div.  374;  Duclos  *;,  Ryland, 
cited  in  note  to  Gill  v.  Kvmer,  6  Moo. 
618  ;  Moore  v.  Cleinentson,  2  Camp.  22  ; 
Mildred  v.  Mnspons,  8  Apn.  Cas.  874  : 
Leuckart  v.  Cooper,  3  Soott,  6il  ;  Learoyd 
r.  Robinson,  12  M.  &  W.  746  ;  Phillips 
r.  Heath,  6  M.  &  W.  672  ;  Macnee  v. 
Oorst,  L.  R.  4  Kq.  315. 

*  Inn  Fawens,  Ex  parte  Buck,  3  Ch. 

TOL.  I.  41 


Div.  795.  See  In  rr  Paw's,  &e.  Co.  1 
Cli.  Div.  631  ;  A>  f>artr  VViitkins.  L.  R, 
8  Ch.  520,  528  ;  Ex.paile  Bod.ii,  28  L.  T. 
N.  8.  174  ;  Book  i;.  (Sorrisen,  2  De  G.  F. 
&  .1.  434  ;  Ex  parte.  Mi)li;ttiit,  3  Dea.  tt 
Ch.  351 ;  In  re  Kulberg,  ri  L.  T.  n.  h. 
460;  Ex  parte  W-ml,  L.  H.  8  Ch.  144; 
Expnrtf  Montaj^u,  \  Ch.  Div.  654. 

•  Fiientes  V.  Moi.Ms,  L.  R.  3  C.  P. 
268  ;  oHinnod,  on  np]ieil,  in  the  Fxchequer 
Chamber;    L.   R.  4  C.  P.   93.      A.,  « 


642 


COMMBNTABIES  ON  SALES. 


[book  II. 


A  warehouse  keeper  who  has  goods  deposited  with  him  as  such 
is  not  "  an  agent  intrusted  with  the  possession  "  of  them,  within 
the  Pactoi's'  Act  (5  &  6  Vic.  c.  89),  although  he  is  also  a  broker, 
and  is  usually  employed  to  sell  the  goods,  but  always  upon  specific 
instructions  for  that  purpose  received  from  the  principal.* 

In  this  case,  one  Slee  carried  on  the  business  of  a  sheep's  wool 
broker  in  Liverpool,  and  also  that  of  a  warehouse-keeper.  In  his 
capacity  of  warehouse-keeper  he  was  in  the  habit  of  receiving 
from  the  plaintiffs,  merchants  in  London,  bills  of  lading  for 
sheep's  wool  and  goats'  wool,  to  arrive  in  Liverpool,  which,  when 
landed,  was  deposited  in  his  warehouses  under  directions  to  send 
the  plaintiff  a  report  and  valuation,  but  he  was  not  authorized  to 
sell  without  specific  instructions.  The  sheep's  wool  so  deposited 
with  him  was  usually  sold  by  Slee,  and  the  proceeds  received  by 
him  for  the  plaintiffs.  The  goats'  wool  Slee  never  sold,  he  not 
being  a  goats'  wool  broker.  Having  wools  of  the  plaintiffs  of  both 
descriptions  in  his  warehouse,  but  not  having  received  any  instruc- 
tions as  to  the  sale  of  either,  Slee  professed  to  pledge  the  whole 
with  the  defendants,  bankers  in  Liverpool,  by  a  letter,  in  which 
he  undertook  to  hold  them  as  trustee  for  the  defendants,  bankers 
in  Liverpool,  to  secure  the  sum  advanced.  It  was  held  by  the 
Exchequer  Chamber,  affirm: \g  the  judgment  of  the  Court  of  Com- 
mon Pleas,  that  Slee  was  not,  as  to  any  of  the  wools  so  agreed  to 
be  pledged,  "  an  agent  intrusted  with  the  possession  "  within  the 
Factors'  Act.'^ 


factor,  after  dfpositing  dock-warrants 
with  the  defendant  an  a  security  for  an 
advance  of  monny,  withdrew  them  from 
the  dofenilant'a  Uands,  and  substituted 
other  dock-warrants  fur  silk  belonging  to 
the  plrintiff,  the  defendant  having  no 
notice  that  A.  was  not  the  true  owner. 
It  was  held,  that  this  transaction  was  not 

{irotected  by  the  second  section  of  the 
i'aotors'  Act  (6  CSeo.  4,  c.  94),  there  being 
no  advance  of  money  on  the  faith  of  such 
warrants ;  and  that  the  i>laintitr  might 
recover  the  value  of  such  silk  in  trover. 
Bonzi  V.  Stewart,  4  M.  &  G.  295.  It  was 
held  by  the  Court  of  Kxchequer  in  Phillips 
V.  Huth,  6  M.  &  \V.  572,  and  afterwards 
by  the  Exchemier  Chamber  and  the  House 
of  Lords  in  Hatfield  v.  Philli[>8,  9  M.  & 
W.  647 ;  12  CI.  &  F.  343,  that  it  does  not 
necessarily  follow  that  the  factor  is  in- 
trusted merely  because  he  is  found  in 
possession  of  tno  symbol  of  title :  it  must 
m  shown  that  the  principal  really  in- 
tended that  the  factor  should  be  possessed 
of  the  goods  at  the  time  he  pledges  them. 
And  see  Smart  v.  Sanders,  5  C.  K.  895  ; 
Jenkins  v.  Usborne,  7  M.  &  0.  678 ; 
Monk  V.  Whittenbury,  2  B.  &  Ad.  484 ; 


Baines  v.  Swainson,  4  .  S.  270  ;  Kings- 
ford  V.  Merry,  11  Ex.  577;  1  H.  &  N. 
503  ;  Trueman  v.  Loder,  11  A.  &  E.  589  ; 
Greening  v.  Clark,  4  B.  &  C  316  ;  Taylor 
V.  Kynier,  3  B.  &  Ad.  320.  Under  thn 
old  law,  a  factor  intrusted  with  goods  or 
their  syrtibols  for  the  purpose  of  sale, 
could  not  lawfully  paWn  either  ;  and  if 
he  did,  the  owner  migh*^  recover  thom  from 
the  pawnee,  although  the  latter  might 
have  had  no  notice  that  the  factor  was 
not  the  true  owner.  Paterson  i».  Tasli, 
2  Str.  1178;  15  East.  44.  And  see 
Daubigny  v.  Duval,  5  T.  R.  604;  De- 
Bouchot  V.  Goldsmid,  5  Ves.  21 1  ;  Mar- 
tini  V.  Coles,  1  M.  &  S.  140  ;  Shipley  v. 
Kymer,  Ih.  484 ;  Solly  v.  Rathbone,  2 
M.  k  S.  298;  Cookran  v.  Irlam,  lb. 
301,  n. ;  Barton  v.  Williams,  5  B.  & 
Aid.  395. 

>  Colo  V.  North  Western  Bank,  L.  R. 
9  C.  P.  470  ;  afflrmed,  on  error,  by  the 
Exchequer  Chamlwr,  L.  R.  10  C.  P.  364. 

*  The  principle  upon  which  the  case 
was  decided  is  contained  in  the  following, 
by  Blackburn,  J.  Ibid.  372.  Ho  says : 
"  The  general  rule  of  law  is,  that,  where 
a   person   is   deceived  by  another  into 


PART  VIII.] 


AOENCr. 


648 


In  1866,  Vickers  of  Manchester,  ordered  800  tons  of  pig-iron 
from  the  Carron  Company ;  and  while  they  held  it  at  his  disposal, 


from 

fight 
was 

["oah, 
see 
De- 

Mar- 

ie,  2 

lb. 

.   k 

I  R. 

the 
1354. 
lease 

}ing. 
liys : 
Ihere 
linto 


believing  he  may  safely  deal  with  prop- 
erty, he  bears  the  loss,  unless  he  can  show 
tiiut  he  was  inislcil  by  the  act  of  the  true 
owner.  The  legislature  seem  to  us  to  have 
wished  to  make  it  the  law,  that,  where  a 
third  person  has  intrusted  goods  or  the 
documents  of  title  to  goods  to  an  agent, 
who  in  the  course  of  such  ag<;ncy  sells  or 
])ledges,  he  should  be  deemed  by  that  act 
to  have  misled  any  one  who  bond  fide  deals 
with  the  agent  and  makes  a  purchase  from 
or  an  advance  to  him  without  notice  that 
he  was  not  authorized  to  sell  or  to  procure 
the  advance.  And  we  think  that,  if  this 
was  the  intention,  it  was  carried  out  by 
the  enactments.  We  do  not  think  that  it 
was  wished  to  make  the  owner  of  goods 
lose  liis  property,  if  he  trusted  the  [kis- 
session  to  a  person  who  in  some  other 
capacity  made  sales,  in  case  that  person 
sold  them.  If  such  was  the  wish  of  those 
who  framed  the  act,  we  think  they  have 
not  used  language  sufficient  to  expi'ess  an 
intention  so  to  enact." 

In  Wilkinson  v.  King,  2  Camp.  335, 
the  owner  of  goods  sent  tliem  to  a  wli..i-tin> 
ger,  where  goods  of  the  same  sort  were 
usually  sold.  The  wharfinger,  without 
any  authority,  sold  them  to  a  bond  fide 
purchaser  who  duly  paid  for  them.  Lord 
Ellenborough  held  that  trover  would  lie 
against  the  purchaser,  for  the  goods,  as 
the  sale  did  not  change  tiie  prointrty  in 
them,  and  observed  that  to  hold  otherwise 
would  give  whartingers  the  dominion  over 
all  goods  intrusted  to  them.  Tliis  deci- 
sion was  adhered  to  by  Lord  Kllenborough 
in  subse<iuent  cases,  after  lull  argument. 
See  note  to  Ibid.  336.  Tiiis  case  was  cited 
in  Pickering  v.  Busk,  15  East,  38,  where 
a  purchaser  of  hemp  lying  at  wharves  in 
London,  had,  at  the  time  of  liis  purchase, 
the  hemp  transferred  in  the  wharfinger's 
books  into  the  name  of  the  broker  who 
effected  the  purchase  for  liim,  and  whose 
ordinary  business  it  was  to  buy  and  sell 
hemp.  This  was  held  to  give  the  broker 
an  implied  authority  to  sell  it,  and  that 
his  sale  and  receipt  of  the  money  bound 
his  unknown  principals.  So,  if  it  be 
transferred  into  the  name  of  "  V.  or  8. ;  " 
that  is,  of  the  pnnci|)al  or  broker.  I.onl 
Ellenliornngh,  in  this  case,  distinguished 
Wilkinson  v.  King,  2  Camp.  33.5,  as  a 
cast!  of  a  wharfinger,  whose  proper  busines.? 
was  not  to  sell,  and  to  whom  the  g(MMls 
were  sent  for  the  more  purpose  of  custody. 
In  holding,  in  Pii'.ering  v.  Husk,  16  Kast, 
43,  that  the  broker  had  been,  by  the 
express  acts  of  the  owner  of  the  goods, 
clothetl  with  an  implied  authority  to  sell 
them,  Lord    Ellenborough    abowed  that 


such  a  case  was  one  where  "the  ap]>arent 
authority  is  the  real  authority  ; '  thus, 
*'  Strangers  can  only  look  to  the  ads  of 
the  parties,  and  to  the  external  indicia  of 
profterty,  and  not  to  the  private  commu- 
nications which  may  pass  between  a  prin- 
ci|>al  and  his  broker ;  and  if  -  person 
authorize  another  to  assume  the  api)arent 
right  of  disposing  of  property  in  the  ordi- 
nary course  of  trade,  it  must  lie  presumed 
that  the  api>aic:it  authority  is  the  real 
authority,  t  cannot  subscribe  to  the  doc- 
trine, that  a  broker's  engagements  are 
necessarily  and  in  all  cases  limited  to  his 
actual  authority,  the  reality  of  which  is 
afterwards  to  be  tried  by  the  fact.  It  is 
clear  that  he  may  bind  his  principal  within 
the  limits  of  the  authority  with  which  he 
has  been  ap|)arently  clothed  by  the  prin- 
cipal in  resi>ect  of  the  subject-matter ; 
and  there  would  Iw  no  safety  in  mercan- 
tile transactions  if  he  could  not.  If  the 
principal  send  his  commodity  to  a  jilace, 
where  it  is  the  ordinary  business  of  the 
person  to  whom  it  is  consigned  to  sell,  it 
must  Ik;  intended  that  the  commodity  was 
sent  thither  for  the  purpose  of  sale.  If 
the  owner  of  a  horse  send  it  to  a  repository 
of  .sale,  can  it  be  implied  that  he  sent  it 
thither  for  any  other  purpose  than  that  of 
sale  1  Or  it'  one  send  goods  to  an  auction- 
room,  can  it  be  8U]iposed  that  he  sent 
them  thither  merely  for  safe  custody  ? 
Where  the  commodity  is  .sent  in  such  a 
way  and  to  such  a  place  as  to  exhibit  an 
appareiit  (lurpose  of  sale,  the  princiiml 
will  Ijc  liound,  and  the  purchaser  safe.  .  .  . 
The  sale  was  made  by  a  |H'rson  who  had 
all  the  indicia  of  projnrty ;  the  hemp 
could  only  have  been  transferred  into  his 
name  for  the  pnr|iose  of  sale  ;  and  the 
]>arty  who  has  so  transferred  it  cannot 
now  rescind  the  contract.  If  the  plaintiff 
had  intended  to  retain  the  dominion  over 
the  licnip,  he  should  have  placed  it  in  the 
whartinfjer's  books  in  his  own  name."  So, 
in  I'arker  v.  Patrick,  6  T.  |{.  175,  it  was 
held,  that  where  the  owner,  who  had 
enabled  another  jterson  to  deal  with  the 
goods  as  his  own,  must  abide  the  con- 
stujuenie  if  any  loss  occur  by  third  peraons 
<Ieaiing  with  such  apparent  owner. 

The  case  of  l'liilli|>s  v.  liiith,  6  M.  & 
W.  672,  is  a  valiialile  one  in  the  matter. 
There,  the  jilaintiffs,  owners  of  a  cargo  of 
tobacco,  on  the  nrrival  of  the  vessel  placed 
the  bill  of  lading,  indorsed  in  blank,  in 
the  hands  of  W.,  as  their  factor,  for  sale. 
W,  enteri'd  the  goo<ls  at  the  rustom-house 
in  his  own  name,  and,  liefore  the  cargo 
was  weighed,  and  without  the  plaintittH' 
knowledge,  obtained  a  dock-warrant  for  it 


m 


644 


COMMENTARIES  ON  SALES. 


[book  II. 


ho  employed  Campbell  Brothers,  of  Glasgow,  to  sell  it  for  him.   On 
March  26, 1866,  they  wrote  to  him  :  "  We  can  now  get  you  your 


ill  his  own  name.  W.  Iiad  previously 
agreed  with  the  defendants  for  the  ad- 
""Tice  to  him  (W.),  of  £20,000,  on  the 
deposit  of  other  dock-warrants  oda  security. 
The  (iefendant'i,  thinking  that  security  in- 
sufficient,  refused  to  advance  more  than 
A'1'2,000;  whereuponjW.  pK'dged  with  them 
the  dock-warrant  of  the  pluiutitfs'  tobacco, 
ns  a  security  for,  and  obtained  thereon, 
the  remaining  £8000  ;  the  jury  hnding 
that  the  plaintiffs  intrusted  tliH  warrants 
to  W.,  and  that  defendants,  in  making 
the  advances  to  W.  believed  that  he  was 
the  true  owner  of  the  tobacco,  it  was 
held  that,  under  the  circumstances,  it  did 
not  sutliciently  api)ear  that  W.  was  in- 
trusted with  this  dock-warrant,  within  the 
meaning  of  the  Factors'  Act,  fl  Oco.  4, 
c.  04,  §  2,  and,  therefore,  that  the  plaintifls 
were  entitled  to  recover  from  tlie  defend- 
ants the  proceeds  of  the  tobacco,  which 
was  sold  by  the  defendants,  on  W.'s  In- 
coming bankrupt.  In  onler  to  make  the 
factor  a  parly  intrusted  with  the  dock- 
warrant,  within  the  meaning  of  the  act, 
it  must  appc-ir  that  the  owner  of  the 
goods  mtendc  I  that  the  factor  should  be 
possessed  of  it  at  tiie  ^'.me  of  the  pledge, 
or  that  he  should  exercise  the  power,  wluch 
the  possession  of  the  bill  of  lading  gave 
him,  of  obtaining  the  dock-warrants  when- 
ever he  in  his  discreiion  niiglit  think  tit. 
The  law  is  so  well  laid  down  by  Parke,  B,, 
in  delivcii  ig  the  judgment  of  the  court, 
and  the  reasoning  is  so  applicable,  not 
only  to  ({uestions  under  the  Factors'  Acts, 
but  as  to  the  principles  governing  the  rela- 
tion of  principal  and  agent  generally,  that 
we  quote  from  the  judgment  at  length. 
Parke,  B.,  says:  "Befoie  the  passing  of 
the  6  Geo.  4,  c.  94,  commonly  called  the 
Factors'  Act,  or  rather  the  previous  Fac- 
tors' Act,  tile  4  (^leo.  4,  c.  83,  it  'vas  clearly 
settled,  that  a  factor,  or  agent  lor  sale, 
had  no  power  to  pledge,  whether  he  was 
in  jio.ssession  either  of  the  goods  them 
selves,  or  of  the  symbol  of  the  goods,  r.nd 
even  though  the  symlml  might  'var  on 
the  face  of  it  some  evidence  o''  the  prop- 
erty being  in  liiiiiself,  as  in  che  cam;  of  a 
bill  of  lading,  in  which  he  was  the  con- 
signee or  'ndorsee.  J'his  was  in  accord 
ance  with  the  gr,)eral  vule,  that  he  who 
deals  with  ona  ex  m  tndnto  can  obtain 
from  him  r  j  batter  title  than  his  mandate 
enables  aim  to  bestow.  [This,  notice,  is 
at  common  law,  and  is  entirely  opposed  to 
t'.e  unsound  doctrine  laid  down  in  the 
New  York  case  of  Armour  ».  Michigan 
Central  R.  R.  Co.,  65  N.  Y.  Ill,  which  we 
hare  discussed  so  fully,  pos/, Vol.  II.,  Hook 
III.,  Part  I.J    But  this  rule  was  thought 


by  some  to  be  attended  with  hardship  on 
merchants  and  others  dealing  with  factors, 
on  the  faith  of  their  being  principals ;  and 
the  lt"^islrtture,  by  the  4  (jco.  4,  first  re- 
laxed this  rule,  and  by  the  6  Geo.  4,  ex- 
tended that  relaxation.  The  question  turns 
upon  the  second  section  of  the  6  (Jieo.  4, 
which  provides,  that  any  person  inlrunted 
with  and  in  |K)ssession  of  any  bill  of  lad- 
ing, dock-warrant,  etc.,  shall  bo  deemed 
and  taken  to  be  the  true  owner  of  the 
goods  detMiribed  and  mentioned  in  these 
documents,  so  far  as  to  give  validity  to 
any  contract  or  agreement  entered  into  by 
tint  [)erson  so  intrusted  an<l  in  possession, 
wit'  any  other  |)erson,  for  the  sale,  dis- 
po  ,itk  >n,  dejwsit,  or  pledge  of  such  goods, 
as  security  for  any  money,  or  negotiable 
instrument,  advanced  or  given  by  such 
other  |>erson,  on  the  faith  of  such  docu- 
roent,  provided  ho  shull  not  have  notice 
by  the  document  or  otherwise  that  the 
person  so  intrusted  shall  not  be  the 
true  owner.  It  is  very  clear  thtt  this 
section  relaxes  the  role  of  the  common 
law,  only  with  respect  to  those  who 
deal  with  persons  who  are  i^ot  m';rely 
ill  (Mssession  of,  but  are  also  intrusted 
with  the  symbol  of  projierty.  How- 
ever great  the  hardship  may  bj  on  in- 
'iiocent  persons,  and  whatever  they  may 
have  supposed  from  finding  another  in 
possession  of  a  document  lH>aring  the  I'n- 
dicia  of  property  in  itself,  still  the  statute 
does  not  apply,  r>nd  they  can  ac(|uire  no 
title  by  virtue  of  it,  unle.ss  the  document 
has  been  intrusted  to  that  person.  If  the 
legislature  had  intended  to  n.ake  the  sim- 
ple possession  of  such  instruments  suffi- 
cient to  enable  the  party  having  them  to 
make  a  good  title,  they  no  doubt  wouia 
have  so  provided.  If  they  had,  the  innocent 
party  dealin<»  with  them  would  have  been 
protected,  but  the  innocent  owner  would, 
in  tlint  ca.se,  huve  suffered,  if  the  docu- 
ment had  been  taken  from  him  by  felony 
or  fraud.  Hr.t  by  providing  that  a  jierson 
should  Iw  iiUruMcd  as  well  as  in  po.sses- 
sioii,  the  inconvenience  is  obviated.  The 
statute  applies  only  to  written  documents 
relating  to  goods,  and  not  to  goods  them- 
selves ;  and  for  this  reason,  —  tliese  docu- 
ments may  be  made  to  designate  the 
owner's  name,  which  the  goods  them- 
selves, generally  speaking,  cannot  ;  and 
it  is  clear  that  the  legislature  intended 
that  those  persons  only  should  sutt'er  by 
the  fraudfi  of  their  agents,  who  have  iu- 
tnisted  them  with  the  evidence  of  title, 
and  omitted  to  take  those  precautions 
which  might  have  prevented  them  from 
deceiving    others.       It   is    therefore    ne< 


PART  vin.J 


AGENCY. 


645 


price."    He  agreed ;  and  on  the  28th,  sent  them  an  order  in  the 
following   terms :  "  To  the  Carron  Company.    Please  deliver  to 

their  trust  against  the  intention  of  their 
princinals,  in  violation  of  their  duty 
towards  them,  and  which  document  never 
would  have  existed  at  all,  if  it  had  not 
been  for  the  fraud  of  the  agents  against 
their  employers.  It  was  well  observed, 
that  it  is  impossible  to  suppose  a  confi- 
dence reposed  by  the  employer  with  re- 
spect to  a  document,  the  very  existence  of 
which  is  a  fraud  upon  him.  It  is,  no 
doubt,  true,  that  the  fact  of  the  delivery 
of  the  bills  of  lading  for  the  puritoses  of 
entering  the  cargoes,  of  obtaining  the  war- 
rants, is,  as  was  insisted,  some  evidence  of 
the  intention  of  the  plaintitrs,  that  the 
factors  should  have  those  warrants  at  some 
time,  or  that  the  plaintiffs  meant  them  to 
take  them  when  they  pleased  ;  but  it  is 
evidence  merely  ;  and  indei)endently  of 
the  objection  insisted  upon  on  the  part  of 
the  plaintilfs,  that  the  omstruction  of  the 
act  of  Parliament  ought  to  have  been 
more  fully  explained  to  the  jury,  we  think 
that  if  it  had  l>een,  the  finding  of  the 
jury  upon  that  evidence  in  this  case  is  not 
satisfactory."  The  rule  for  setting  aside 
the  verdict  for  the  defendants,  and  for  a  new 
trial,  was  accordingly  made  absolute,  [n) 

Phillips  r.  Huth,  6  M.  &  W.  572,  was 
afTirmed  in  Hattield  v.  Phillips,  9  M.  & 
W.  647,  in  the  Exchequer  Chamber,  and 
by  the  House  of  Lords,  Hatfield  v.  I'hil- 
liiw,  12  1 1.  &  F.  343.  After  this  deci- 
sion, the  statute  5  &  6  Vic.  c.  39,  was 
passed.  In  I^amb  v.  Attenborough,  1  B. 
&  S.  831,  it  was  held  that  the-  Factors' 
Acts,  6  Geo.  4,  c.  94,  and  6  &  6  Vic. 
c.  39,  do  not  apply  to  the  case  of  master 
and  servant ;  and,  therefore,  where  a  wine 
merchant  gave  authority  to  his  clerk  to 
sign  delivery  orders  in  liis  master's  name, 
and  receive  dock- warrants  in  his  own, 
which  he  likewise  authorised  him  to 
pledge  for  the  purposes  of  the  master's 
Dusiness,  the  clerk  having  fniudulently 
deposited  some  of  these  '  nk-warrants 
with  a  pawnbroker  as  a  security  for  money 
bond  fide  lent  to  him,  it  was  held  that  the 
clerk  was  not  an  agent  within  the  Factors' 
Acts,  and,  consecjucntly,  that  the  merchant 
was  entitled  to  n'co-  the  dock-warrants 
from  the  pawnbroker.  (//) 

But,  in  Baines  v,  Swainson,  4  B.  &  S. 


cessary,  in  order  to  give  effect  to  this 
clause,  that  the  owner  should  have  *  in- 
trusted' the  factor  with  the  document  ; 
not  that  it  ia  necessary  that  the  owner 
should  have  had  personal  iwssession  of 
the  document,  so  as  to  be  able  to  mark  it 
with  his  own  name,  and  himself  delivered 
it  to  the  factor  ;  for  if  his  own  agent, 
general  or  special,  puts  it  into  the  hands 
of  the  factor  with  the  factor's  name  on  it, 
or  if  the  factor  be  instructed  by  the  owner 
to  obtain  the  document  in  that  state,  and 
does  so,  no  doubt  '  .":■  '  intrusted  '  by  the 
owner  with  it,  witbiu  the  meaning  of  the 
act.  But  in  order  to  constitute  an  xntnt-sl- 
ing  of  such  a  document,  it  is  necessary 
that  the  owner  should  have  intended  thio 
factor  to  possess  it  in  that  form,  at  the 
time  when  ho  had  the  ]iossession.  In- 
trusting with  the  document  is  essentially 
different  from  enabling  a  jierson  to  become 
possessed  of  it,  —  from  giving  him  the 
means  of  obtaining  it.  An  instance  of 
the  ditlerence  was  well  put  in  the  argu- 
ment, when  it  was  said,  that  one  who 
gives  another  the  key  of  his  bureau  to  get 
out  one  jiaper,  may  enable  him  to  procure 
any  other  that  he  pleases  to  take,  but  does 
not  intrust  him  with  it.  It  is  not  enough, 
therefore,  to  show  that  the  plaintilfs  em- 
powered W.  to  possess  himself  of  the  war- 
rants whenever  he  chose  ;  it  must  lie 
shown  that  the  plairtiffs  really  intended 
that  the  factors  should  Iw  possessed  of 
them  at  the  time  they  pledged  them  ;  or 
it  must  be  shown  that  tne  plaintilfs  meant 
them  not  merely  to  have  the  power  which 
the  possession  of  the  bill  of  lading  would 
give,  —  of  getting  the  warrants  when  they 
liked,  —  but  to  exercise  that  power  by  ob- 
taining them  whenever,  in  their  discretion, 
they  might  think  fit.  If  cither  of  these 
intentions  were  proved,  it  would  be  sutli- 
cient  ;  but  if  the  factors  were  proved  to 
be  in  possession  of  the  warrants,  under 
such  circumstances  as  that  the  plaintiffs, 
if  they  had  l»en  informed  of  that  fact, 
might  justly  have  said,  '  We  never  meant 
this,'  it  is  impossible  to  say  that  they  in- 
trusted the  factors  with  these  warrants. 
The  principals  can  never  be  deemed  to 
have  intrusted  the  agents  with  a  document 
which  the  agents  obtained  in  breach  of 

(n)  It  is  noteworthv  that  the  plaintiffs 
in  tills  case,  and  in  Hatfield  v.  Phillips, 
12  C\.  &  F.  3.59,  as  stated  by  the  \mtA 
Chancellor  in  the  House  of  Lords,  were 
foreign  principals,  but  this  did  not  affect 
their  right,  against  the  wrong  acts  of 
their  domestic  agents,  to  follow  tneir  prop- 
erty in  the  hands  of  innocent  third  par- 


ties, precisely  as  they  might  have  done  if 
they  nad  been  hon\t  principals. 

(6)  We  would  mention  here,  en  passant, 
that  this  class  of  cases,  too,  shows  the  un- 
soundness of  the  New  York  case  of  Ar- 
mour V.  Michigan  Central  R.  li.  Co.,  65 
N.  Y.  Ill,  and  the  utter  fallacy  of  the 
principle  relating  to  the  law  of  principal 


640 


COMUENTABIES  ON  SALES. 


[book  II. 


Messrs.  Campbell  Brothers."  Campbell  Brothers,  instead  of 
employing  the  document  for  the  purpose  of  giving  delivery  to 
the  supposed  purchaser,  represented  it  as  their  own,  and  aslced 
Hertz  of  Glasgow^  to  make  them  an  advance  upon  it.  Hertz  de* 
clined  till  the  document  should  be  stamped,  and  a  place  of  deliv- 
ery inserted  by  Vickers.  These  requirements  having  been  satis- 
fied by  Vickers,  the  Carron  Company  wrote  to  Hertz,  saying : 


270,  the  plaintitPs,  cloth  inatiufanturers, 
were  applied  to  by  E.,  who  was  a  factor 
and  coiiunission  agent,  for  a  sample  of 
their  cloths,  on  tlie  representation  that 
he  could  get  them  a  purchaser.  The 
sample  having  been  sent,  K.  afterwards 
told  the  plaintilFs  that  he  hud  got  them 
an  order  for  a  certain  numbtir  of  ends  at  a 
stated  price.  The  plaintitrs  re(]uired  to 
know  the  tirni,  aitd  8.  btdng  mentioned  as 
the  firm,  they  sent  the  ends  to  the  ware- 
house of  E.,  who  was  to  |mss  them  on  to 
S.,  after  seeing  the  process  of  ]>erching  [>er- 
formed  u|)on  them,  fur  which  ho  was  to 
receive  a  commission  from  the  plaintiffs  of 
one  shilling  i>er  end.  E.  had  no  authority 
from  S.,  and  he  sold  the  goods  to  ti><)  de- 
fendants, who  were  cloth  Mierchants,  and 
bought  them  bmid  fiiie.  ii  was  held  that 
E.  was  an  agent  "intrusted"  with  the 
cloths  within  the  meaning  of  the  Factors' 
Acts,  and  consequently  the  purchase  of 
them  from  E.  by  the  defendants  was  p.-o- 
tected.  All  of  the  judges  distinctly  up- 
held Monk  V.  Whittenbury,  2  B.  &  Ad. 
484,  and  treated  it  as  an  existing  author- 
ity under  the  5  &  6  Vic.  c.  39.  See  per 
Lonl  Coleridge,  in  Cole  v.  Northwestern 
Kank,  L.  II.  9  C.  P.  485.  The  distinction 
was  taken  by  Wigram,  V.  C,  in  Wood  v, 
Bowcliffe,  6  Hare,  183,  191,  approved  by 
Crompton,  J.,  in  Buines  v.  Sw.iinson,  4  B. 
&  S.  270,  283,  as  the  right  distinction, 
that  the  act  applies  only  to  mercantile 
transactions,  and  not  to  the  case  of  ad- 
vances made  upon  the  security  of  furni- 
ture used  in  a  furnished  house  —  not  in 
the  way  of  trade  —  to  the  apparent  owner 
of  such  furniture,  such  apparent  owner 
afterwards  appearing  to  be  the  agent  in- 
trusted with  the  custody  of  the  furniture 

and  agent  on  which  that  case  was  de- 
ci('t'<l.  Cockburn,  (!.  J.,  makeL  this  very 
plain  where  he  says :  "  I  entertain  no 
doubt  that  this  case  is  not  within  either 
of  the  Factors'  A(!ts  referred  to.  The  re- 
lation bt'tween  the  parties  here  was  that 
of  master  and  servant,  not  that  of  prin- 
cipal and  agent.  Bryant,  being  the  clerk, 
and  in  that  sense  the  servant,  of  the  plain- 
tiff, had  authority  to  sign  delivery  orders 
on  his  behalf,  and  give  them  to  persons 
dealing  with  the  plaintiff,  in  the  course  of 


by  the  true  owner.  Such  "agent"  is  not 
an  agent  within  the  meaning  of  the  5  &  tf 
Vic.  c.  39.  This  case  also  follows  Monk 
V.  Whittenbury,  2  B.  &  Ad.  484,  as  a  de- 
cision as  applicable  to  the  Act  of  Victoria 
as  to  that  ot  Ueorge  4.  And  see  Fueutea 
V.  Martis,  L.  R.  3  C.  P.  268 ;  L.  li.  4 
C.  P.  93;  George  v.  Clagi-ct,  7  T.  K. 
359;  lialjone  v.  Williams,  fb.  360,  n.; 
Semenza  v.  Brinsley,  18  C.  B.  N.  s. 
467;  Langton  o.  Waring,  lb.  n.  s.  315, 
329;  Vickers  v.  Hirtz,  L.  K.  2  Sc.  Ap. 
113;  Portalis  i'.  Telluy,  L.  Ii.  5  Eu.  140; 
Learoyd  v.  Kobinson,  12  M.  &  W.  745  ; 
Navanlshaw  v.  Brownrigg,  2  Ue  G.  M.  & 
G.  441 ;  Higgens  v.  Burton,  26  L.  J.  Ex. 
342;  Taylor  ».  Kymer,  3  B.  &  Ad.  320; 
Bonzi  V.  Stewart,  4  M.  &  G.  295 ;  Hey- 
nian  v.  Flewker,  13  C.  B.  N.  s.  519  ;  Jen- 
kyns  V.  Uslwrne,  7  M.  k  G.  678  ;  McEwan 
V.  Smith,  2  H.  L.  Cas.  309 ;  Kriegslord 
V.  Merry,  1  H.  &  N.  503 ;  Hardman  v. 
Booth,  1  H.  &  C.  803;  Sheppurd  v.  Union 
Bank  of  London,  7  H.  &  N.  661.  A  stile 
or  pledge,  made  without  title  or  authority, 
dues  not  at  common  law  pass  any  right  of 

t»ro[)erty  in  chattels,  even  when  the  jwrty 
>y  whom  it  is  made  hns  possession,  not 
merely  of  the  chattels  themselves,  but  of 
the  biila  of  lading  or  other  documents 
which  usually  accompany  the  title.  See 
McCombie  v.  Davis,  7  East,  5;  Dyer  v. 
Pearson,  3  B.  &  C.  38;  Fletcher  v.  Heath, 
7  B.  &C.  517;  Paterson  v.  Tash,  2  8tr. 
1178  ;  Evai.  v.  Truman,  2  B.  &  Ad.  886; 
Williams  v.  Barton,  3  Bing.  139  ;  Everett 
V.  Saltus,  15  Wend.  275  ;  20  Wend.  268  ; 
Williams  ii.  Merle,  11  Wend.  84;  Leckey 
V.  McDernmt,  8  S.  &  K.  500;  Eoston  v. 
Worthington,  5  S.  &  K.  130. 


his  business  ;  and,  aetinq  on  that  author- 
ity, he,  in  fraud  of  his  ]>rin(;inal,  assigned 
some  away.  The  plaintiff  would,  of  course, 
be  concluded  by  what  his  servant  did  by 
his  ntUhoribf,  but  he  is  hnun4  no  farther ; 
and,  consequently,  when  we  find  these  dock 
warrants  were  parted  with  by  his  servant 
without  his  authority,  they  still  n>main  his 
proj)erty,  and  he  is  entitletl  to  recover  them 
fiom  the  party  to  whom  they  were  pledged." 
Lamb  v.  Attenborough,  1  B.  &  S.  at  p.  835. 
See^Mut,  Vol.  1!.  Book  III.  Part  I. 


PART   VIII.] 


AOBNCr. 


647 


lor- 
er; 


em 


"  We  have  placed  the  pig-iron  indorsed  by  Thomas  Vickers,  Esq., 
to  your  credit."  Hertz  thereupon  advanced  to  Campbell  Broth- 
ers three  distinct  sums,  amounting  in  all  to  .£2400.  The  act  of 
Campbell  Brothers  was  a  gross  fraud  upon  Vickers,  who  knew 
nothing  of  the  transfer  to  Hertz,  although  he  had  unsuspectingly 
facilitated  its  accomplishment.  Campbell  Brothers,  having  be- 
come  bankrupt,  absconded.  An  action  was  brought  in  Scotland 
by  Vickers  against  Hertz  for  the  delivery  of  the  iron.  In  Pochin 
V.  Robinows,^  the  Scotch  Court  of  Session  expressed  a  doubt  as 
to  whether  the  Factors'  Acts  applied  to  Scotland,  and  in  Vickers 
V.  Hertz  (not  reported  in  the  court  below),  not  relying  on  the 
Factors'  Acts,  but  following  their  own  decision  in  Pochin  v.  Rob- 
inows,  they  gave  judgment  for  the  defendant,  on  the  ground  that 
the  documents  which  had  been  placed  in  the  bauds  of  Campbell 
Brothers  by  the  plaintiff,  had  put  them  in  possession  of  a  right 
which  they  were  entitled  to  transmit  to  others.  On  appeal  to  the 
House  of  Lords,  the  judgment  below  was  affirmed,  but  simply  on 
the  ground  that  the  Factors'  Acts  do  apply  to  Scotland,  and 
that  the  documents  in  this  case  come  expressly  within  the  third 
and  fourth  sections  of  the  act,^  where  it  is  enacted  that, "  Any 
agent  intrusted  with  the  possession  of  goods,  or  of  the  documents 
of  title  to  goods,  shall  be  deemed  and  taken  to  be  the  owner  of 
such  goods  and  documents,  so  far  as  to  give  validity  to  any  con- 
tract or  agreement  by  way  of  pledge,  lien,  or  security  bond  fide 
made  with  such  agent  so  intrusted ; "  and  "  that  any  order  for 
the  delivery  of  the  goods,  or  any  other  document  used  in  the  ordi- 
nary course  of  business  as  proof  of  the  possession  or  control  of 
goods,  shall  be  deemed  and  taken  to  be  a  document  of  title  within 
the  meaning  of  this  act.  "  ^ 


1  Ct.  of  Sess.  Cos.  3d  series,  vol.  vii. 
p.  622. 

a  5  &  6  Vic.  c.  89. 

»  Vickers  v.  Hertz,  L.  R.  2  Sc.  &  D. 
Ap.  113.  IjotA  Chelmsford  says :  "  It  was 
objected  thiit  the  delivery  orders  were  not 
within  the  acts,  bceanso  there  were  no 
specific  goods  to  which  thoy  were  appli- 
cable, and  because  Campbell  Brothers  were 
not  intrusted  with  the  delivwy  orders  for 
sale  of  the  goods  to  which  they  related. 
There  afipears  to  me  no  ground  for  these 
objections.  The  orders  were  for  the  de- 
livery of  specific  quantities  of  iron  which 
had  been  previously  purchased  by  Vickers, 
and  which  he  was  entitled  to  have  de- 
livered to  him  on  demand.  Upon  the 
production  of  those  delivery  orders,  the 
quantities  of  iron  mentioned  in  them 
must  have  been  forthcoming ;  and  it 
seems  to  me  to  have  been  perfectly  im- 
material  whether   these   tjuautities   had 


been  previously  set  apart  awaiting  the 
demand  for  delivery,  or  whether  they 
were,  on  the  production  of  the  delivery 
orders,  separated  from  a  largt^r  quantity.  ' 
Lord  VVestbury,  in  dealing  with  the  latter 
point,  said:  "Mr.  Justice  Willes  is  re- 
iiorted  to  have  said  that  the  factor  must 
be  deemed  to  Ite  a  factor  for  the  sale. 
Fuentes  v.  Martis.  L.  K.  3  C.  l\  268. 
What  is  stated  in  the  act  is,  that  a  factor 
who  is  intrusted  with  the  goods,  or  wHh  a 
document  of  title,  shall  l>e  authorized  to 
deal  with  the  gi)o<ls  in  a  particular  man- 
ner. And  then  the  fourth  section  goes  on 
to  define  what  is  meant  by  a  'document 
of  title  ; '  and  the  detinition  given  is  one 
whiidi  will  include  these  orders.  What 
we  have  to  inipiire,  therefore,  in  this  case 
is,  whether  the  factor  was  intrusted  by 
the  owner  with  a  possession  of  a  document 
of  title  entitling  the  factor  to  give  posses- 
sion of  the  gumls.    That  undoubtedly  ha 


648 


COMMENTARIES  ON  SALES. 


[book  II. 


One  of  the  rules  of  the  Chicago  Board  of  Trade  provided  that 
in  purchases  or  sales  made  by  a  member  of  the  Board  of  Trade 
for  another,  other  persons  might  be  substituted  for  the  original 
purchaser  or  seller.  The  plaintiffs  bought  produce  for  the  de- 
fendant and  released  the  seller,  but  did  not  substitute  any  other 
person  in  the  place  of  the  seller  who  would  have  been  bound, 
under  the  rule,  to  the  purchaser,  in  the  same  manner  as  the  origi- 


was.  If  the  words  of  the  act  had  been 
'factor  for  sale,'  I  should  have  been  of 
opinion,  undoubtedly,  that  that  meant 
one  who  has  contracted  to  sell,  but  has 
not  completed  the  sale  ;  but  has  received 
from  his  principal  a  document  of  title  in 
order  to  complete  the  sale,  and  who,  as 
the  recipient  of  that  order,  is  an  agent  for 
the  sale,  within  the  meaning  of  those 
words.  The  words  '  factor  for  sale,'  how- 
ever, are  not  found  in  the  act,  and  the 
question  simply  is  this:  Were  Campbell 
Brothers  intrusted  with  the  possession  of 
a  document  of  title  ?  Undoubtedly  they 
were  ;  and  therefore  they  were  authorized 
to  deal  with  the  document  in  favor  of 
Hertz  in  the  manner  they  have  done.  It 
is  perfectly  clear  that  Camiibell  Brothers 
would  answer  the  description  of  factors 
intrusted  with  a  document  of  title,  al- 
though not  entitling  them,  un  the  face  of 
it,  to  transfer  it  by  indorsement.  The 
power  to  deal  with  the  document  is  a 
power  derived  from  the  enabling  clauses 
in  the  act,  and  does  not  inquire  for  that 
purpose  any  particular  form  of  indorse- 
ment beyond  that  which  enables  them  to 
be  designated  as  persons  intrusted  with 
the  possession  of  a  document  of  title." 
Vickers  t>.  Hertz,  L.  R.  2  Sc.  &  D.  Ap.  at 
p.  117  et  acq.  See  also,  for  the  Scotch  law, 
1  Bell's  Com.  p.  250. 

The  facts  in  Pochin  v.  Robinows,  Ct. 
of  Sess.  Cas.  3d  ser.  vol.  vii.  p.  622,  are 
identical  with  those  in  Vickers  v.  Hertz, 
L.  R.  2  Se.  &  D.  113.  The  former  case, 
as  intima''ed  above,  was  not  decided  under 
the  Factors'  Acts.  The  ground  of  the  de- 
cision was  one  relating  to  agency  gener- 
ally, and  was  to  the  effect  that  where  a 
man  intrusts  his  agent  with  the  actual 
possession  of  his  goods,  or  with  a  docu- 
ment by  which  possession  can  at  any  mo- 
ment be  obtainea,  and  the  agent,  in  abuse 
of  his  trust,  raises  money  on  his  ostensible 
right  from  a  bond  fide  lender,  it  is  the  em- 

Iiloyer  of  the  agent  who  should  suffer  the 
OSS,  and  not  the  innocent  third  party 
with  whom  the  agent  was  enabled  to  con- 
tract by  the  employer's  own  conduct.  In 
Vickers  v.   Hertz,  L.  R.  2  Sc.  &  D.  at 

S.  116,  Lord  Chelmsford  was  evidently  in 
oubt  as  to  the  soundness  of  the  decision 
in  Pochin  v.  Robinows  (supra),  indepen- 


dent of  the  effect  of  the  Factors'  Acts ; 
and  we  think  that,  as  far  as  the  English 
law  is  concerned,  the  case  outside  of  the 
Factors'  Acts  is  even  nr  re  than  doubtful, 
as  the  very  object  of  the  enactment  of  the 
Factors'  Acts  in  England  was  to  meet  ex- 
actly such  cases  as  those  of  Pochin  v. 
Robinows,  and  Vickers  v.  Hertz.  But,  as 
was  pointed  out  in  the  latter  case  by  Jjord 
Colonsay  (at  p.  119),  while  the  case  came 
clearly  within  the  scope  of  the  Factors' 
Acts,  and  on  that  ground  was  well  de- 
cided, the  decision  was  also  in  accordance 
with  the  common  law  of  Scotland,  the 
Scotch  law  having  "gravitated  in  that 
direction  for  a  considerable  time  previously 
to  those  statutes,  Mr.  Bell  laying  it  down 
expressly  that  a  factor  had  the  power  to 
pledge  his  principal's  property."  Bell,  in 
1  Cora.  5th  ed.  483;  7th  ed.  617,  says : 
"It  has  been  much  questioned,  both  on 
the  Continent  and  in  Great  Britain,  what 
power  a  factor  has  to  pledge  the  goods  of 
hia  principal.  In  England,  at  common 
law,  he  liad  no  such  power.  In  Scotland 
it  has  been  decided  that  he  has  the 
power,  to  the  elfect  of  conferring  on  one 
who  lends  money  on  the  security  of  the 
goods,  an  unexce])tionable  real  right ;  or, 
of  raising  to  a  sub-factor,  or  other  person 
receiving  the  goods  and  advancing  money 
on  them,  an  etiectnal  lien.  And,  on  this 
point,  the  law  of  England  has  by  statute 
been  placed  nearly  on  the  footing  of  the 
law  of  Scotland  ; "  citing  the  Factors'  Acts. 
And,  again  (5th  ed.  250,  7th  ed.  270), 
with  reference  to  the  doctrine  of  reputed 
ownership,  an  analogous  doctrine  as  to  the 
law  of  Scotland  is  laid  down :  "The  effect 
produced  in  England  by  the  statute  of  21 
James  1,  c.  19,  is  in  Scotland  accomplished 
by  the  operation  of  the  common  law  ;  and 
the  rule  may  be  stated  in  this  proposi- 
tion, —  that  where  one  is  unnecessarily,  or 
by  the  collusion  or  gross  negligence  of  the 
true  owner,  permitted  to  give  himself  an 
appearance  to  the  world  as  if  he  were  pro- 
prietor of  goods  and  wares  not  belonging 
to  himself,  and  this  by  exercising  acts  of 
ownership,  and  by  holding  a  possession 
seemingly  uncontrolled,  his  creditors  will 
be  entitled  to  proceed  against  the  goods  as 
if  they  really  belonged  to  him." 


PART  VIII.] 


AGENCY. 


649 


!1 


5 

n 
11 


nal  seller,  there  being  no  other  subb  .  ution  of  a  contract  for  the 
cancelled  one  than  such  as  existed  in  the  minds  of  the  plaintiffs, 
to  which  no  outward  expression  was  given,  and  which  consisted 
merely  in  their  intention  to  thereafter  substitute  another  seller  to 
take  the  place  of  the  one  they  released.  The  court  held  that  this 
rule  means  that  when  a  commission  merchant  has  made  a  con- 
tract for  his  principal  with  a  third  person,  and  assumes  to  off- 
set or  cancel  the  contract,  he  should  substitute  therefor  another 
equivalent  contract  with  some  other  person  who  should  be  bound 
to  his  principal  for  its  performance.  The  purpose  of  the  rule 
being,  therefore,  to  provide  that  when  contracts  were  cancelled 
and  others  substituted,  the  commission  merchant,  as  well  as  the 
party  bound  in  the  substituted  contract  to  sell  or  buy,  should  be 
liable  to  the  other  party  for  its  performance.  The  rule  did  not 
authorize  the  commission  merchant  to  release  the  party  to  the 
original  contract  unless  he  provided  some  one  else  to  assume  the 
obligation ;  or,  as  the  rule  states  it,  "  substitute  some  person  or 
persons  for  the  one  from  or  to  whom  he  may  have  purchased  or 
sold  the  property  originally  ; "  and  that  in  this  case  there  having 
been  no  'substitution,  —  no  contracts  to  talce  the  place  of  those 
cancelled,  —  the  plaintiffs  could  not  recover.^ 

Parties  who  make  sales  themselves,  in  their  own  name,  at  their 
own  store,  and  on  commission,  having  possession  of  the  goods  as 
soon  as  the  sales  are  made,  and  delivering  them  to  their  cus- 
tomers, are  commission  merchants  as  contradistinguished  from 
mere  brokers  or  agents,  and  were  held  liable,  under  the  Internal 
Revenue  Act  of  1866,2  ^o  be  liable  to  a  tax  as  "  wholesale  dealers," 
and  did  not  come  within  the  clause  of  the  act  which  imposed  a 
lighter  tax  on  "  commercial  brokers."  ^ 

A  factor  who  has  made  advances  on  cotton,  claiming  it  in  the 
Court  of  Claims,  under  the  Abandoned  and  Captured  Property 
Act,*  as  he  has  only  a  special  property  in  it  to  the  amount  of  his 
advances,  can  only  recover  to  the  extent  of  his  interest  in  the 
cotton,  to  which  extent  he  is  considered  as  the  •'  owner  "  within 
the  meaning  of  the  act;  but  as  to  the  amount  beyond  his  ad- 
vances, that  is  in  the  general  owner,  in  respect  to  whom  the 
United  States  has  the  full  defences  of  set-off,  disloyalty,  etc., 
given  mider  the  act  and  its  amendments.^ 

1  Higgins  r.  MuCren,  116  U.  S.  071. 
The  rule  is  well  settled,  that  a  written 
contract  made  by  a  factor  in  his  own  name 
for  the  pHH^haHo  or  sale  of  goods  for  his 
principal  will  bind  the  principal,  and  he 
may  sue  or  he  sued  thereon  exactly  as  if  he 
were  named  in  it,  for  it  is  treated  as  the 
contract  of  the  principal  as  well  as  of  the 


agent.  Higgins  v.  Senior,  8  M.  k  W, 
834 ;  Huntington  v,  Knox,  7  C'ush.  371  ; 
Taintor  v.  Prendergast,  3  Hill,  72  ;  Ford 
V.  Williams,  21  How.  287. 

a  14  Stat,  at  Large,  11.5. 

»  Slack  V.  Tucker,  23  Wall.  321. 

♦12  Stat,  at  Large,  820. 

*  United  States  v.  Villalonga,  28 
Wall    36. 


650 


COMMENTARIES  ON  SALES. 


[book  II. 


In  Warner  v.  Martin,^  the  Supreme  Court  of  the  United  States 
decided  the  following  points :  1.  That  a  factor  has  not  power  to 
transfer  tlie  title  of  his  principal  to  goods  consigned  to  him  for 
sale,  in  payment  of  a  precedent  debt  duo  from  himself;  and  a 
creditor  who  receives  the  goods  under  such  an  arrangement,  as 
well  as  his  vendee,  though  acting  in  good  faith,  and  in  ignorance 
of  the  fact  that  the  goods  did  not  belong  to  the  factor,  acquires 
no  title  as  against  the  principal.  2.  The  factor  having  abandoned 
the  country,  the  clerk  of  the  factor  has  no  power  to  sell  the 
goods  of  the  factor's  principal,  no  usage  of  the  trade  to  do  so 
being  shown.* 

Under  the  United  States  Bankrupt  Act  of  1841,^  fiduciary 
debts  contracted  before  the  passage  of  the  act  constituted  no 
objection  to  the  discharge  of  the  debtor  from  other  debts.  A 
fiduciary  creditor  was  not  affected  by  proceedings  in  bankruptcy 
unless  ho  voluntarily  came  in  and  proved  his  debt.  Under  this 
act  it  was  held,  on  demurrer  to  a  plea  of  bankruptcy  by  a  bank- 
rupt factor,  that  a  balance  due  from  a  factor  to  his  principal  was 
not  a  fiduciary  debt  within  the  meaning  of  that  act.^ 

Where  goods  are  consigned  to  a  factor  to  meet  his  accept- 
ances as  they  fell  due,  and  he  has  funds  in  his  hands  to  meet  a 
bill  accepted  by  him,  drawn  by  his  principal  and  an  accommoda- 
tion drawer,  he  is  bound  to  ap])ly  the  funds  to  pay  that  bill.  He 
cannot  sue  the  drawers  and  maintain  that  he  applied  those  funds 
to  the  payment  of  the  later  liabilities  of  his  principal  alone.  The 
accommodation  drawer  has  the  right  to  have  the  funds  applied  to 
meet  the  bills  as  they  become  due,  and  not  to  have  the  payment 
o^  the  bill  of  which  he  was  one  of  the  drawers  deferred  to  his 
injury.* 

The  plaintiff,  a  merchant  in  Georgia,  shipped  cotton  to  the  de- 
fendants, factors  in  Liverpool,  the  defendants  accepting  the  plain- 
tiff's draft  against  the  consignment.     When  the  shipment  was 


»  11  How.  209. 

3  See  Trueniau  v.  Loder,  11  A.  &  E. 
589  ;  Ulore  v.  Sutton,  3  Meriv.  237 ; 
Combe's  Case,  9  Co.  75  |  Palliser  t>.  Orb, 
Bunb.  166  ;  Coles  v.  Trecothick,  9  Yes. 
236  ;  Solly  v.  lintlibone,  2  Man.  &  S. 
299  ;  Cockrnn  v.  Irliim,  lb.  301 ;  Patereon 
V.  Tash,  2  Str.  1178;  Maans  v.  Hender- 
son, 1  East,  337;  Newson  v.  Thornton, 
6  Bast,  1 7 ;  McCombie  v.  Davis,  6  East, 
538 ;  7  East,  5  ;  Daubigny  v.  Duval,  5 
T.  K.  604 ;  Guichard  v.  Morgan,  2  Br. 
&  B.  639  ;  Martini  v.  Coles,  1  Mau.  & 
S.  140 ;  Berry  v.  Williamson,  8  How. 
496. 

s  5  Stat,  at  I^rge,  440. 

*  Chapman  v.  Forsyth,  2  How.  202. 


*  Brender  v.  Phillips,  16  Peters,  121. 
But,  where  a  factor  makes  advances,  or 
incurs  liabilities  on  a  consignment  of  goods, 
if  there  be  no  specuil  aijreemcnt,  he  may 
sell  the  pro|ierty  in  the  exercise  of  a 
sound  discretion,  according  to  general 
usage,  and  reimburse  himself  out  of  the 
proceeds  of  the  sale  ;  and  the  consignor 
has  no  right  to  interfere.  The  lien  of  a 
factor  for  advances  and  liabilities  incurred 
extends  not  only  to  the  property  con- 
signed, but,  when  sold,  to  tlie  proceeds  of 
the  sale  in  the  hands  of  the  vendee,  and 
the  securities  therefor  in  the  hands  of  the 
factor.  Diinkwater  v.  (loodwin,  Cowp. 
2.'>1  ;  Haughton  i^.  Matthews,  3  Bos.  &.  P. 
489  ;  Brown  v.  McGran,  14  Pet.  495. 


PART  VIII.] 


AOENOT. 


651 


made,  and  the  advance  arranged  for,  no  instructions  wore  given 
by  tl>e  plaintiff  touching  the  sale  of  the  cotton.  It  accordingly 
went  to  the  consignees,  as  factors  for  sale,  without  any  other  con- 
tract than  that  implied  by  law  as  between  a  principal  and  a  factor 
making  advances ;  that  is  to  say,  that  the  factor  is  to  make  sale 
of  the  goods  consigned  to  him  according  to  his  own  judgment,  in 
the  exerci  se  of  a  sound  discretion  as  to  the  time  and  mode  of  sale, 

aving  regard  to  the  usages  of  trade  at  the  place  of  sale,  and  to 
reimburse  himself  out  of  the  proceeds  for  his  advances  and  other 
balance  due  him.  After  the  shipment,— namely,  on  April  20,— 
the  plaintiff  wrote  the  defendants :  "  If  you  have  any  cottons  on 
hand  when  this  reaches  you  in  which  I  m  interested,  I  wish  you 
to  hold  them  until  you  hear  from  me  again.'  The  defendants,  on 
May  24,  replied,  acknowledging  the  receipt  of  the  letter  of  April 
20,  and  adding,  "And  your  wishes  in  respect  of  the  cotton  are 
noted  accordingly."  On  July  -2  the  plaintiff  wrote  the  defend- 
ants, acknowledging  the  receipt  of  that  letter,  and  saying,  "  You 
will  please  sell  my  cotton  soon  after  the  receipt  of  this,  imless  you 
are  of  opinion  you  can  do  better  by  holding  a  little  longer."  This 
letter  was  received  on  August  23;  but  the  cotton,  in  fact,  had  been 
sold  by  the  defendants,  on  a  rising  market,  on  June  3.  On  the 
plaintiff  becoming  aware  of  this,  he  repudiated  the  sale,  and  notified 
the  defendants  he  would  not  be  bound  by  it  and  would  hold  them 
responsible.  The  market  having  continued  to  rise,  the  plaintiff 
brought  an  action  for  damages  for  a  breach  of  orders  l)y  the  de- 
fendants, and  of  their  duty  as  factors.  The  verdict  and  judgment 
were  for  the  plaintiff.  The  judgment  was  set  aside  by  the  Su- 
preme Court,^  and  a  new  trial  was  ordered  by  a  divided  court, 
Wayne  and  Catron,  JJ.,  dissenting. 

While  there  may  be  some  doubt  as  to  whether  the  majority  of 
the  court  made  a  proper  application  to  the  case  of  all  the  princi- 
ples upon  which  they  relied,  we  think  that,  with  one  important 
qualification  which  we  shall  notice,  there  is  no  question  as  to  the 
general  correctness  of  those  principles,  as  follows :  — 

1.  As  a  general  rule,  it  is  true  that  the  interpretation  of  writ- 
ten instruments  properly  belongs  to  the  court,  and  not  to  the  jury. 
But  there  are  cases  in  which,  from  the  different  senses  of  the 
words  used,  or  their  obscure  and  indeterminate  reference  to  un- 
explained circumstances,  the  true  interpretation  of  the  language 
may  be  left  to  the  consideration  of  the  jury  for  the  purpose  of 
carrying  into  effect  the  real  intention  of  the  parties.  This  is 
especially  applicable  to  cases  of  commercial  correspondence, 
where  the  real  objects  and  intentions  and  agreements  of  the 

•  Brown  v.  McGran,  14  Peters,  479. 


652 


COMMBNTABIBS  ON  BALES. 


[book  II. 


parties  are  often  to  be  arrived  at  only  by  allusions  to  circum- 
stances which  are  but  imperfectly  developed.  And  this  is  true 
oven  though  the  court  might,  in  its  discretion,  have  assumed 
upon  itself  the  right  and  duty  of  construing  the  correspondence. 

2.  Wherever  a  consignment  is  made  to  a  factor  for  sale,  the 
consignor  has  a  right  generally  to  control  the  sale  thereof,  accord- 
ing to  his  own  pleasure,  from  time  to  time,  if  no  advances  have 
been  made  or  liabilities  incurred  on  account  thereof;  and  the 
factor  is  bound  to  obey  his  orders.  This  arises  from  the  ordinary 
relation  of  principal  and  agent.  If,  however,  the  factor  makes 
advances  or  incurs  liabilities  on  account  of  the  consignment,  by 
which  he  acquires  a  special  property  therein,  then  the  factor  has  a 
right  to  sell  so  much  of  the  consignment  as  may  bo  necessary  to 
reimburse  such  advances  or  meet  such  liabilities,  unless  there  is 
some  existing  agreement  between  himself  and  the  consignor 
which  controls  or  varies  this  right.  Thus,  for  example,  if,  con- 
temporaneous with  the  consignment  and  advances  or  liabilities, 
there  are  orders  given  by  the  consignor  which  are  assented  to  by 
the  factor  that  the  goods  shall  not  be  sold  until  a  fixed  time,  in 
sucli  a  case  the  consignment  is  presumed  to  bo  received  by  the 
factor  subject  to  such  orders ;  and  ho  is  not  at  liberty  to  sell  the 
goods  to  reimburse  his  advances  or  liabilities  until  after  that  time 
has  elapsed.  The  same  rule  will  apply  to  orders  not  to  sell  below 
a  fixed  price,  unless,  indeed,  the  consignor  shall,  after  due  notice 
and  request,  refuse  to  provide  any  other  means  to  reimburse  the 
factors.  And  in  no  case  will  the  factor  be  at  liberty  to  sell  the 
consignment  contrary  to  the  orders  of  the  consignor,  although  he 
has  made  advances  or  incurred  liabilities  thereon,  if  the  con- 
signor stands  ready  and  offers  to  reimburse  and  discharge  such 
advances  and  liabilities.  On  the  other  hand,  where  the  consign- 
ment is  made  generally,  without  any  specific  orders  as  to  the 
time  or  mode  of  sale,  and  the  fn'^t;c"  makes  advances  or  incurs 
liabilities  on  the  footing  of  such  consignment,  then  tlie  legal  pre- 
sumption is  that  the  factor  is  intended  to  be  clothed  with  the 
ordinary  rights  of  factors  to  sell  in  the  exercise  of  a  sound  dis- 
cretion at  such  time  and  in  such  mode  as  the  usage  of  trade 
and  his  general  duty  require,  and  to  reimburse  himself  for  his 
advances  and  liabilities  out  of  the  proceeds  of  the  sale ;  and  the 
consignor  has  no  right  by  any  subsequent  orders  {^unless  assented 
to  or  acquiesced  in  by  the  consignee,  we  would  suggest],  given  after 
advances  have  been  made  or  liabilities  incurred  by  the  factor,  to 
suspend  or  control  this  right  of  sale,  except  so  far  as  respects  the 
surplus  of  the  consignment,  not  necessary  for  the  reimbursement 
of  such  advances  or  liabilities.    Of  course  this  right  of  the  factor 


PABT  Tin.] 


AGENCY. 


658 


to  sell  to  reimburse  himself  for  his  advances  and  liabilities  applies 
with  stronger  force  to  cases  where  the  consignor  is  insolvent,  and 
where,  therefore,  the  consignment  constitutes  the  only  fund  for 
indemnity. 

While  we  think  the  above  position,  except  as  we  have  above 
qualified  it,  is  not  sound,  we  fully  agree  witli  the  majority  of  the 
court  in  the  following,  which  is  the  third  of  their  positions,  but 
which,  as  stated  by  them,  implies  a  very  strong  doubt  as  to  the 
correctness  of  their  holding  that  the  acquiescence  in  and  nssont  to, 
by  the  consignees,  of  the  orders  of  the  consignors,  is  not  binding 
on  the  consignees  if  they  have  incurred  any  liability  in  respect  to 
the  consignment. 

8.  Supposing  the  tale  made  hy  the  de/endanta  on  June  3  to 
have  been  tortious,  and  in  violation  of  orders,  the  plaintiiT  had  his 
election  either  to  claim  damages  for  the  value  of  the  cotton  on 
that  day,  as  a  case  of  tortious  conversion,  or  for  the  value  of  the 
cotton  on  August  23  following,  when  the  letter  of  the  plaintiff  of 
July  22  was  received,  which  authorized  a  sale.  If  the  price  of 
cotton  was  higher  on  that  day  than  at  any  intermediate  period 
he  was  entitled  to  the  benefit  thereof.  If,  on  the  other  hand,  the 
price  was  then  lower,  he  could  not  justly  be  said  to  be  damnified 
to  any  extent  beyond  what  he  would  lose  by  the  difFereiico  of  the 
price  of  cotton  on  June  3  and  the  price  on  August  23. 

The  advance  in  this  case  was  made  to  the  plaintiiT,  not  by  the 
payment  of  any  money,  but  by  the  acceptance  of  the  plaintiff's 
draft  by  the  defendants'  New  York  house,  who  recouped  them- 
selves by  drawing  on  the  Liverpool  house  at  sixty  days'  sight, 
this  bill  being  accepted  only  on  June  3,  the  day  on  which  they 
sold  the  cotton,  so  that  they  would  not  be  under  any  cash  advance 
against  the  consi<"  nent  until  the  following  August.  The  jury 
treated  the  defendants'  letter  of  May  24  in  conncctioti  with  the 
plaintiff's  letter  of  April  20  as  an  agreement  with  the  plaintiff 
not  to  sell  the  cotton  until  they  received  further  orders ;  and  the 
court,  in  effect,  approve  of  the  construction  put  by  the  jury  upon 
those  letters.  Of  course,  on  undoubted  prineiples  of  law  applica- 
ble to  the  case,  it  was  quite  within  the  power  of  the  defendants  to 
have  refused  assent  to  the  proposition  made  to  them  in  the  plain- 
tiff's letter  of  April  20,  in  which  case  they  would  have  exercised 
such  rights  of  selling  as  pertain  to  factors  under  such  circum- 
stances, or  they  could  have  required  additional  security;  but 
having  adopted  neither  of  these  courses,  and  having,  as  the  jury 
found,  assented  to  the  plaintiff's  request,  we  think  this  did 
amount  to  an  "  existing  agreement  between  themselves  and  the 
consignor  which  controlled  or  varied  their  rights."    Having  con* 


654 


COMMENTARIES  ON  SALES. 


[BO^kt  II. 


seiited  ':o  hold  the  cotton  according  to  the  tcrma  of  the  consign- 
or's /ctter,  uud  having  against  their  assent,  acquiescence,  and 
agreement  violated  their  orders,  —  thus,  first,  by  their  acquies- 
cence, lulling  the  consignor  into  inaction,  and  rendering  an  offer, 
confessedly  within  tlie  power  of  the  consignor  to  make,  of  a  "  dis- 
charge and  reimbursement  of  the  advances  and  liabilities,"  and 
then  violating  their  agreement,  which  was  based  on  a  clear  legal 
consideration,  —  wo  think,  in  the  words  of  the  majority  of  the 
court  themselves,  that  the  sale  was  "tortious  and  in  violation  of 
orders;"  and  we  are  not  surprised  that,  on  this  point,  two  of  the 
judges  of  the  Supreme  Court  dissented  from  tho  view  of  the 
majority,  i.id  agreed  with  that  of  the  court  below.' 


»  See  Turner  v.  Yates,  16  How.  14, 
where  a  (|ue8tioii  as  to  the  meaning  and 
effect  of  con'f.s|)ondence  was  8u))initte(l  to 
the  jury,  ns  in  Brown  v.  McGnm,  14  I'et. 
479.  The  authorities  cileil  in  this  latter 
case  do  not  sustain  it  on  the  jKiint  where 
we  think  it  is  wron^^ly  decided.  In 
neither  of  ihc  two  coses  relied  on  did 
the  Name  (luestion,  or  a  similar  one,  arise. 
In  PothoMicr  v.  Dawson,  Holt, 383,  Giblw, 
C.  J.,  held,  that,  as  a^encud  [)ioi>osition, 
a  ri)(ht  of  lien  gives  no  ri^ht  to  sell  the 
goods.  Hut  when  gooils  are  deirasited  by 
way  of  8:'ciirity,  to  indemnify  a  Jiurty 
against  a  loaa  of  money,  it  is  more  than 
a  pledj^e,  The  lendi'r's  rights  .ire  more 
extensive  titan  sueii  as  aeerue  under  au 
onlinary  lien  mi  tiii  way  of  trade.  The 
contniet,  in  sueii  ciise,  may  bo  infarred  to 
be,  "If  i  [the  Utrrower]  repay  the  money, 
you  must  redeliver  the  gooils  ;  but  if  I  fail 
to  repay  it,  you  may  use  the  security  I 
have  left  to  repay  yourself. "  The  other 
case,  Oraham  v.  Uyster,  C  Man.  &  S.  1, 
siuiply  holds  thut  a  factor  who  had  the 
power  to  sell  goods,  had  not  the  itower  to 
pledge  thenu  Ivjrd  KllenlN)rougn  shows 
that  whi-re  goods  are  consigned  to  a  broker, 
with  iiowcr  to  sell  them  at  his  discretion, 
the  shippci-s  stipulating  that  they  should 
be  at  liberty  to  draw  on  the  broker  by 
way  of  ailvance,  the  broker  had  iwwor 
given  ;.o  him  to  regulate  the  time  and 
I'lai.c  (if  .lisiMsjd,  the  price,  and  all  other 
partiiiilar<  incident  to  the  sale,  and  the 
shipp  >rs  c  mid  not  object  to  anv  mode  of 
sale  whiv- 1  the  broker  might  adopt,  in 
ordef  to  reimburse  himself  for  his  ad- 
vancLX.  But  tliis  docs  not  affect  the  case, 
as  in  Prown  o.  Mcdran,  14  Pet.  479, 
where,  I.y  agreement  Iwtween  the  {larties, 
the  con  iguees  rights  and  lowers  are  re- 
stricte-l,  In  Marlield  v.  Ooodhue,  2  Corns. 
62,  tlie  Court  of  Apfieals  of  New  York 
refused  to  follow  Brown  v.  McOran,  14 
Pet.  47!>,  even,  outside  of  the  question  of 
the  factor's  powers  being  restricted  by  that 


which  was  held  to  constitute  an  agreement 
between  the  consignor  and  consignee.  lu 
Mnrtield  v.  Goodhue,  3  C'oms.  at  p.  72,  the 
court  say :  "  Where  gotnls  are  sent  to  a 
factor  for  sale,  without  any  limitation  or 
instructions  as  to  the  terms  or  time  of 
sale,  he  is  at  lilK-rty  to  sell  as  in  the  exer- 
cii'  3  of  u  sound  discretion  he  shall  deem 
proi>er  for  the  interest  of  his  principal. 
The  factor  in  such  a  cose  is  intrusted  with 
the  exercise  of  a  discretion  for  the  bcnetit 
of  his  principal  and  not  for  his  advantage, 
and  that  discretion  the  priuci]ial  has  a 
right  to  control.  But  after  the  factor  has 
this  authority,  to  lie  exercised  exclusively 
for  the  benefit  of  his  principal,  he  makes 
advances,  and  then  his  princi|Hd  becomes 
satisKed  that  his  interest  will  \hi  promoted 
if  the  sale  Iw  delayed,  and  he  onlere 
his  factor  not  to  sell.  The  Chief  Jus- 
tice instructed  the  jury  that  such  an  order 
was  powerless,  and  in  no  respect  limited  the 
authority  of  the  factor.  Can  this  U-  so  » 
The  authority  when  given  to  the  factor 
Wiis  given  for  the  exclusive  tn'iiofit  of  the 
jirincipal.  The  interest  of  the  factor  was 
not  to  bo  roganloil  at  all  in  the  exert:ise  of 
the  authority.  Then  the  factor  makes  an 
advance  ujiou  the  credit  of  the  goods,  and 
of  his  principal ;  is  he  not,  after  that,  as 
much  bound  as  he  was  before,  to  'lave 
solely  in  view  the  interest  of  his  princiftal 
when  he  sells ;  or  is  he  at  lilierty,  after- 
wards, to  consult  his  own  interest  instead 
of  that  of  his  principal  ?  Alter  the  ad- 
vanc(?,  the  principal  lias  good  reason  to 
iH'lieve  that  a  delay  in  selling  will  In-  ad- 
vantagiums  to  liim,  and  he  so  informs  his 
factor  ;  is  there  pny  hanlsliip  in  reiiuiring 
of  the  factor,  if  he  is  unwilling  to  olioy  the 
onler  of  his  princi|)al,  to  say  to  him,  'Ah 
you  have  revoked  my  authority  to  sell  at 
my  discretion  for  vour  IxMietit,  1  sliall  s*-!! 
at  my  discretion  for  my  own  Ix-nofit,  un- 
less yon  forthwith  repay  my  ailvances '  t" 
AVe  think  that  the  mistake  made  by  the 
court  in  Brown  v.  McUran,  14  Pet.  -^79, 


PART   VII F.] 


AGENCT. 


655 


Certain  cases  of  wine  were  ordered  by  L.  of  the  plaintiff,  and 
were  shipped  by  the  plaintiff,  consigned  to  L.,  who  deposited  the 
bill  of  lading  with  the  defendant,  a  wharfinger,  with  directions  to 
take  delivery  and  warehouse  the  wine  on  L.'s  account.  The  wine, 
on  its  arrival,  was  entered  at  defendant's  wharf  in  L.'s  namo,  sub- 
ject to  a  stop  for  freight.  L.  afterwards  refused  to  accept  the 
wine,  on  the  ground  that  it  was  not  according  to  contract.  The 
plaintiff  agreed  to  take  it  back,  and  L.  promised  to  send  a  deliv- 
ery order  to  enable  the  plaintiif  to  obtain  it ;  but,  on  the  same 
day,  L.  indorsed  the  bill  of  lading  to  M.,  which  M.  took  to  the 
defendant's  wharf  and  procured  a  transfer  of  the  wine  into  his 
own  name.  The  plaintiff  was  afterwards  informed  by  L.  that  the 
wine  was  at  the  disjwsal  of  the  plaintiff,  but  subject  to  charges 
amounting  to  £17  14s.  9d.,  aj  •!  £5  for  loss  of  profit.  At  an 
interview  be^^^ween  M.  and  the  plaintiff,  M.  offered  to  give  up  the 
wine  on  payment  of  the  above  sums.  The  plaintiff  tendered  the 
former  sum,  which  M.  would  not  accept.  The  plaintiff's  attorney 
afterwards  offered  to  the  defendant  to  pay  all  charges,  and  to  in- 
demnify him  against  the  claim  of  any  other  person.  The  defend- 
ant refused  to  deliver  the  wine  to  the  plaintiff,  alleging  that  he 
had  given  warraut.*  to  M.  The  wine  was  ultimately  delivered  to 
a  third  person  by  M.'s  order.  M.  bad,  in  fact,  paid  the  freight, 
and  obtained  warrants  to  him  or  his  order.  At  the  trial  before 
Cockburn,  C.  J.,  the  jury  found  that  the  transaction  between  M. 
and  L.  was  coloralde,  and  with  knowledge  on  the  j)art  of  M.  of  tlie 
intention  of  L.  to  depfi'  e  the  plaintiff  of  the  win?.  A  verdict  was 
found  foi"  the  plaintiff',  with  leave  to  move  to  eutv'r  a  verdict  for 
the  defendant,  power  being  reserved  to  the  court  to  draw  infer- 
ences of  fact.     The  court  held  that  the  defendant  received  the 


494,  H  firq.,  is  inninly  in  tlisiTfjanliiiK  tlio 
f  "  '.  lifter  n(lv'".r""s  I'lvc  bcoii  iimih',  of 
\  ,ij»rpt'inont  of  r,  fiirti)r  to  ('(fniily  with 
tltte  ifijiU'st  of  tlic  !i|i;ji|HT  t«  (IcfiT  tnakillK 
tlu'  sail'.  Asiil;'  ^T  tlmt,  thiTc  is  not  ii 
vcrv  inai'-'ial  iliircit'iu'i'  iM-twcer  Brown  v. 
MoOnin,  i4  I'-i.  471),  and  Varfu'ld  i'. 
(•iMMllini',  :<  Conis.  tl'J.  In  tin;  fiirnu-r 
cn.>M',  tin'  liinijuiijji'  is  :  "  Ami  in  no  caxo 
will  the  fiictiir  lii'  itt  lilM-rty  to  sell  the 
consignnu'iit  lo.iliiiiy  to  tin-  orders  of  the 
consignor,  (iltlion^li  ln'  Ims  inaclc  advanrcH, 
or  incnrrcd  linliiliiics  tlicriMiii,  //'  thf  rn.i- 
xicfnor  ulnnd  rrinhi,  mid  njffrs  to  rrivilnir.tc 
iiHii  disrhitrfjc  sia-li  adviit  •I'.n  and  Uiihili- 
tiat."  I'.  4!tri.  And  in  MaHii'M  r.  (Jood- 
hnc,  3  Conis.  ii2,  m-arly  tlio  Hann-  thiii}?, 
in  t'ffcot,  is  also  held  ;  oi  litt-niUy,  that 
thp  factor  nniy  sell,  nnlexH  on  demand 
the  consinnor,  |>ay  the  advances.  Ho 
that,  on  this  jwint  tiic  diiFcrcnce  is 
merely  as  to  the  j>arty  \\\\o\\  whom  Iho 


initiative  a.s  to  the  jiiiynicnt  is  cast.  Ihit, 
on  tiic  jMiint,  where  we  have  cxprcssecl 
the  o]iinii>n  that  Hmwn  v.  McCnin,  14 
Pet.  47i*,  is  wroii},'ly  decided,  we  find  the 
court  in  Marfield  c.  <iooi||iiie,  3  Cmns.  (i2, 
7r<,  ft  si-ij.,  siistidi;..  onr  vii'w,  ami  on  this 

ini]H)rliint    |N)int,   wh.'re   th ise   essen- 

tiallv  tliir<is  with  Unu'ii  i'.  MeOran,  we 
think  it  dear  that  Marin  !d  r.  (hhmHiup 
is  the  lictter  deeideil  of  tli.'  two  cases. 
.See  I'.rll  1-.  rainier,  (5  Cow.  128;  {'arker 
r.  Itiimker,  '12  Pick.  44.  In  this  l;i!ter 
case  it  wiiM  held  tl>iit  a  coLiinissiuM  nier- 
(diniif,  liavinjj  receivd  ^'ci.>ds  in  mII  at  a 
certain  limited  price,  ami  made  ailvam-es 
n|N)n  them,  has  a  ri)<lit  to  rernlmrse  him- 
self hy  sellinp  thi'ni  at  the  fair  market 
price,  though  Ix'low  'he  limit,  if  iln'  I'on- 
sicnor  has  refused,  upon  a|>plication,  and 
ftfter  a  reHHonablu  time,  to  repay  the 
advances. 


656 


COMMENTARIES  ON  SALES. 


[book  II. 


wine  as  bailee  to  L.,  and,  after  the  payment  of  the  freight,  could 
have  no  better  title  than  his  bailor ;  that,  by  the  finding  of  the 
jury,  M.  had  no  better  title  than  L. ;  and,  as  the  plaintiff  had  ten- 
dered the  amount  of  charges  both  to  M.  and  the  defendant,  the 
plaintiffs  title  was  as  valid  against  the  defendant  as  it  would 
have  been  against  L. ;  and  that  the  defendant  was  liable  to  the 
plaintiff  "or  the  value  of  the  wine.* 

The  receipt  of  a  warehouseman  for  a  quantity  of  wheat,  given 
in  consideration  of  a  sum  of  money,  no  wheat  being  delivered, 
does  not  enable  the  promisee  to  maintain  replevin  against  a  third 
person  for  wheat  held  by  the  third  person  in  that  warehouse ;  the 
plaintiff  showing  no  property  in  the  whcat.^ 

Where,  for  advances  made  by  the  plaintiffs  to  H.  L.,  for  goods, 
his  brother  S.  L.,  a  warehouseman,  gave  warehouse  receipts  lor 
such  goods  to  the  plaintiffs,  which  goods  were  sold  and  delivered 
by  H.  L.  and  the  plaintiffs  to  the  defendants,  for  the  plaintiffs ; 
it  is  no  defence  for  the  defendants,  in  an  action  for  the  j»rice,  to 
say  that  the  plaintiffs  are  still  the  holders  of  the  outstanding  re- 
ceipts of  S.  L.  The  existence  of  these  facts  does  not  authorize 
the  defendants  to  resist  the  payment  of  the  price  of  property  they 
had  purchased,  and  the  possession  of  which  has  not  been  dis- 
turbed. S.  L.  had  no  title  to  the  property,  nor  any  power  to  sell 
it,  nor  any  claim  on  the  price.  At  most,  he  had  only  a  lien, 
which  he  might  never  claim  to  e.xort,  and  from  which  the  pur- 
cliasers  have  experienced  no  injury.^ 

Wharfingers,  warehousemen,  and  commission  merclianta,  hav- 
ing goods  in  their  possession,  may  insure  them  in  their  own 
names,  and  in  case  of  loss  may  recover  the  full  amount  of  lit- 


»  Batut  V.  Hartley,  L.  R.  7  Q.  B.  694. 
See  Cliwsmiin  v.  Kxiill,  6  Ex.  341  ;  Ogle 
V.  Atkinson,  .5  Taunt.  '/.'»9  ;  Gurnev  v. 
Behren.l,  '2  K.  &  B.  «22  ;  Wilson  v.  Aniler- 
tun,  1  U.  &  Ad.  4.')0  ;  Cuming  v.  Brown, 
y  l"^ist,  506 ;  Mcycrstein  v.  Barber,  L.  K. 
4  H.  L.  ai7  ;  Hiiindt  v.  Bowlby,  2  B.  & 
A<1.  932;  WiilianiH  v.  Kverftt,  14  East, 
582 ;  Walker  v.  Boston,  9  M.  &  >V.  ill  ; 
Wood  I'.  Leadbittor,  13  M.  k  W.  S2H 

»  Jackson  V.  Hall,  14  How.  525. 

"  McCuUough  V.  Roots,  19  How.  349. 
See,  also.  Holly  i'.  Huggcrfoni,  8  Pick. 
73 ;  Vibbard  v.  .lohnson,  19  Johns.  77  ; 
Wanzer  v.  Truly,  17  How.  584.  A 
(mrnhaser  with  knowledge  that  the  goods 
j)urcha.sed  are  (daiinod  by  a  third  p«'r8on, 
if  he  voluntarily  pays  the  price  of  the 
goods  to  such  third  ]>er8on,  cannot  after- 
wards, <n  a  suit  brought  against  him  by 
the  rendor  for  the  price,  set  up  the  want 


of  title  in  tlio  vendor,  and  that  he  had 
paid  the  nrice  to  the  true  owner,  as  a 
dofenoe.  It  is  not  lOMiiii-tent  for  the  pur- 
chaser to  ilisputc  the  tilli-  of  his  vendor, 
unless  he  has  In-en  charged  at  the  suit  of 
another  person,  who  has,  after  contesta- 
tion, shown  a  better  title.  The  principle 
is  analogous  to  the  devise  of  a  house  by 
A.,  who  is  in  |H)ss(>ssion,  claiming  title,  to 
B.  The  latter  receives  the  )>osscssion,  and 
enjoys  the  premises  by  the  |H'rniission, 
and  on  tin*  letting  of  A.  In  an  action  for 
the  rent,  B.  (Miiiiot  set  up  that  A.  has 
nothing  in  the  premises,  and  that  he  has 
paid  the  rent  to  C.  voluntarily.  If  (.'. 
Iind  recovered  the  r-'iit,  anil  substantiated 
his  title,  then  it  would  be  a  good  delencc  ; 
otherwi.se,  not.  Vibburd  r.  Johnson,  19 
Johns.  77.  And  see  Heennancev.  Vernoy, 
6  iFohns.  5  ;  Sweet  v.  Colgate,  20  Johns. 
196. 


PART   VIII.] 


AGENCY. 


657 


111- 


of 
tu- 
ple 
».y 
to 
nd 
in, 
for 

1118 

Ic. 

led 
|l9 


Hiirance,  for  the  satisfaction  uf  their  own  claims  first,  and  hold 
the  residue  for  the  owners.' 

It  is  laid  down  in  Railroad  Co.  /-.  Munufacturinjr  Co.^  that  the 
rule  which  is  applicahlc  while  goods  are  in  jtroccss  of  transporta- 
tion by  a  carrier  from  the  i>lace  of  their  receipt  to  the  place  of 
their  destination,  is  that,  in  the  absence  of  any  special  contract, 
it  is  the  duty  of  the  carrier  to  carry  safely  to  the  end  of  his  line 
and  to  deliver  to  the  next  (iarrier  in  the  route  beyond.  It  is  there 
alleged  that  this  rule  of  lial)ility  is  adopted  generally  by  the 
courts  in  this  country,  although  in  Kngland,  at  the  present  time, 
and  in  some  of  the  States  of  the  Union,  the  dispo.sition  is  tc  treat 
the  obligation  of  the  carrier  who  lirst  receives  the  goods  as  con- 
tinuing throughout  the  entire  route.  The  rulf,  it  is  claimed,  that 
liolds  the  carrier  only  liable  to  the  extent  of  his  own  route,  nnd 
for  the  safe  storage  and  delivery  to  the  next  carrier,  is  just  uud 
reasonable  ;  but  that  public  policy,  however,  recpiires  that  this  luli; 
should  1)0  enforced,  and  will  not  allow  the  carrier  t(t  rscape  rv- 
sponsibility  on  storing  the  uoods  at  the  end  of  his  route,  without 
delivery  or  an  attemitt  to  delivei-  to  the  connecting  carrii'r.  li 
there  be  a  necessity  for  storage,  it  will  be  considered  a  mere  ac- 
cessory to  the  transportation,  and  not  as  cluinging  the  nature  ol 
the  bailment.  It  is  very  clear  that  the  simple  deposit  of  the  goods 
by  the  carrier  in  his  depot,  imaceompanied  l)y  any  act  indicating 
an  intention  to  renounce  the  (»l»ligation  (»i  a  carrier,  will  not 
chauffe  or  niodifv  his  linl-.ilitv.  It  mav  lie  that  cirenmstanees 
may  arise  after  the  goods  have  reached  the  depot  which  wfjiiiti 
justify  the  carrier  in  warehousing  them:  but  if  be  had  reasoniddr 
grotmds  to  anticipate  the  occurrence  of  these  adver.se  ciirum 
stances  when  he  received  the  goods,  he  cannot  by  storing  them 
change  his  relation  towanls  them. 

These  princi|)les  are  stated  ns  above  and  were  applied  in  Rail- 
road Co.  V.  Maniifnetui'iug  Co..'  where  wool  was  shipped  at  .lai'k- 
son  for  ibilTalo,  and  was  takt-n  liy  the  r:iilroad  to  l>('troit,  wbenec 
it  was  to  be  forwarded  by  steamer  to  JbilValo.  ll  was  earried  b\ 
the  road  to  Detroit,  and  remained  in  the  depot  ot  the  railroad  lor 


'  IIoiiii-  Ins,  Co.  r.  I'mltiiiHird  \V;irr- 
liousc  Co.,  !•.'!  I'.  S.  TiUr  ;  Wnlcis  r.  .Mou- 
iiivli^  A.ssiirniiii'  <'o.,  .'■.  I'".l.  \  HI.  nTh  . 
I.onilon  &  Nnrtli  Wc.-'tcrii  Kv.  ("n  >•  lilvri. 
I  Kl.  &  Kl.  ♦i.'.S:  li.'Ki.irst'r.  I'lilti.n  In- 
sumiii'r' Co.,  1  Hull,  Kit!;  Siirr  r.  M;nis, 
1!J  I'll. St.  21!'.    Sucli  jitiliiii's  uHimlly  coi 


Kooil^.  Till'  I.Dinloii  Si  North  Wcstfiii 
I!v.  C...  V.  Civil.    1    Kl.  &   Kl.  tir.U.       S.c 

I,ii|;i«;ivs  »•  'rcHlil.  •!  StMlk.  400  ;  Kojm  1  I'. 
Ilnlhiihi,  :!  .\.  &  K,  !•!•  ;  Ciliutli.l^  c. 
Slii'il.li'ii,  ti  Tamil.  14  ;  Irvilij;!'.  Itii  liitfii- 
son,  -J  n.  &  .\.i.  lii:;  ;  hiilliy  r.  Tli" 
liiijiu  &   Loiicjon    I. ill'  .\s>;iinnir<'  Co.,  ir> 


tiiiii  siich  luiiRimgc,  tovi'iiiif,'   the  fjixxls,  ('.  11.   3*l.'i  ;  Snow   r.   I  nil,   rtl    Aln.  'M'\ ; 

nt  "thtir  own  or  la-M  t>.v  tlicni  in  tni.><t,"  Dninnd  r.  Tliourmi,  1  I'mt.  •.'3'«  :   li.itu'  i'. 

iind  tlin  nssuri'd  l)t>conit'  trnstt'cs  for  llic  DuMiid,  Pk  L'.M. 
owners  of  tin    H'lu*!"*   f'"'  J*'"'!!  t'Xf("<s  ii*  '^  l«i  Wnll.  ;il8. 

nmy  1h' («\.''' •'.(•ir  own  rhiiins  mjuinst  tin*  '  /'"'/. 

VOL.  I.  4'J 


658 


•ipr  j«v;>  ■ 


COMMENTARIES  ON  SALES, 


[book  n. 


six  days,  when  it  was  destroyed  by  an  accidental  fire,  not  the  re- 
sult of  any  negligence  on  the  part  of  the  railroad  company.  Bar. 
ing  all  the  time  tile  wool  was  in  the  depot  it  was  ready  to  bo 
delivered  for  further  transportation  by  the  steamers,  which  were 
unable,  from  the  accumulation  of  freight,  to  receive  it.  The  lia- 
bility of  tho  railroad  was  held  to  be  that  of  carriers,  and  not  of 
warehousemen,  and  the  judgment  of  the  Circuit  Court  for  Connec- 
ticut against  them  for  the  loss,  w&s  affirmed  by  the  Supremo 
Court  of  the  United  States.^ 


*  Aa  thU  su>)ject  is  oniy  collateral  to 
that  of  sales  we  intended  to  nave  discussed 
it  in  a  note  to  this  Part ;  but  as  the 
qaestion  in  this  country  is  one  of  the 
highest  importance,  not  only  to  railroa<l 
companies,  but  to  menihants  generally  in 
connection  with  their  sales  and  shipnients 


of  goods,  and  as  the  decisions  in  this 
country  as  a  whole,  are  not  by  any  means 
in  a  satisfactory  stato,  we  devote  a  aepar- 
ate  Part  for  tiie  exhatutive  consideration 
of  the  subject.  See  pott,  Vol.  II.,  Book 
HI.,  Part  II. 


END  OF  VOL.  I. 


V 


